Golden Ocean Group Limited
|
(Name of Issuer)
|
Common Shares, par value $0.01 per share
|
(Title of Class of Securities)
|
G39637106
|
(CUSIP Number)
|
Frontline 2012 Ltd.
Par-la-Ville Place, 4th Floor
14 Par-la-Ville Road,
Hamilton HM 08
Bermuda
+1(44)12984348
|
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
|
March 31, 2015
|
(Date of Event Which Requires Filing of this Statement)
|
If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g), check the following box [_].
|
The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
|
*The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
|
CUSIP No.
|
G39637106
|
1.
|
NAME OF REPORTING PERSONS
|
|
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
|
||
Frontline 2012 Ltd.
|
2.
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
||
(a)
|
[_]
|
||
(b)
|
[_]
|
3.
|
SEC USE ONLY
|
|
4.
|
SOURCE OF FUNDS
|
|
OO
|
5.
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
|
[_]
|
|
6.
|
CITIZENSHIP OR PLACE OF ORGANIZATION
|
|
Bermuda
|
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
||
7.
|
SOLE VOTING POWER
|
|
0
|
8.
|
SHARED VOTING POWER
|
|
*77,500,000
|
9.
|
SOLE DISPOSITIVE POWER
|
|
0
|
10.
|
SHARED DISPOSITIVE POWER
|
[_]
|
|
*77,500,000
|
11.
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
|
|
PERSON
|
||
*77,500,000
|
12.
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
|
||
CERTAIN SHARES
|
|||
[_]
|
13.
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
|
|
43.9%
|
14.
|
TYPE OF REPORTING PERSON
|
|
CO
|
CUSIP No.
|
G39637106
|
1.
|
NAME OF REPORTING PERSONS
|
|
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
|
||
Franklin Enterprises Inc.
|
2.
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
||
(a)
|
[_]
|
||
(b)
|
[_]
|
3.
|
SEC USE ONLY
|
|
4.
|
SOURCE OF FUNDS
|
|
OO
|
5.
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
|
[_]
|
|
6.
|
CITIZENSHIP OR PLACE OF ORGANIZATION
|
|
Liberia
|
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
||
7.
|
SOLE VOTING POWER
|
|
0
|
8.
|
SHARED VOTING POWER
|
|
*3,753,135
|
9.
|
SOLE DISPOSITIVE POWER
|
|
0
|
10.
|
SHARED DISPOSITIVE POWER
|
[_]
|
|
*3,753,135
|
11.
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
|
|
PERSON
|
||
*3,753,135
|
12.
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
|
||
CERTAIN SHARES
|
|||
[_]
|
13.
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
|
|
2.1%
|
14.
|
TYPE OF REPORTING PERSON
|
|
CO
|
CUSIP No.
|
G39637106
|
1.
|
NAME OF REPORTING PERSONS
|
|
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
|
||
Hemen Holding Limited
|
2.
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
||
(a)
|
[_]
|
||
(b)
|
[_]
|
3.
|
SEC USE ONLY
|
|
4.
|
SOURCE OF FUNDS
|
|
OO
|
5.
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
|
[_]
|
|
6.
|
CITIZENSHIP OR PLACE OF ORGANIZATION
|
|
Cyprus
|
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
||
7.
|
SOLE VOTING POWER
|
|
0
|
8.
|
SHARED VOTING POWER
|
|
*105,852,260
|
9.
|
SOLE DISPOSITIVE POWER
|
|
0
|
10.
|
SHARED DISPOSITIVE POWER
|
[_]
|
|
*105,852,260
|
11.
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
|
|
PERSON
|
||
*105,852,260
|
12.
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
|
||
CERTAIN SHARES
|
|||
[_]
|
13.
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
|
|
59.9%
|
14.
|
TYPE OF REPORTING PERSON
|
|
CO
|
CUSIP No.
|
G39637106
|
1.
|
NAME OF REPORTING PERSONS
|
|
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
|
||
Greenwich Holdings Limited
|
2.
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
||
(a)
|
[_]
|
||
(b)
|
[_]
|
3.
|
SEC USE ONLY
|
|
4.
|
SOURCE OF FUNDS
|
|
OO
|
5.
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
|
[_]
|
|
6.
|
CITIZENSHIP OR PLACE OF ORGANIZATION
|
|
Cyprus
|
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
||
7.
|
SOLE VOTING POWER
|
|
0
|
8.
|
SHARED VOTING POWER
|
|
*109,605,395
|
9.
|
SOLE DISPOSITIVE POWER
|
|
0
|
10.
|
SHARED DISPOSITIVE POWER
|
[_]
|
|
*109,605,395
|
11.
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
|
|
PERSON
|
||
*109,605,395
|
12.
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
|
||
CERTAIN SHARES
|
|||
[_]
|
13.
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
|
|
62.1%
|
14.
|
TYPE OF REPORTING PERSON
|
|
CO
|
CUSIP No.
|
G39637106
|
1.
|
NAME OF REPORTING PERSONS
|
|
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
|
||
C.K. Limited
|
2.
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
||
(a)
|
[_]
|
||
(b)
|
[_]
|
3.
|
SEC USE ONLY
|
|
4.
|
SOURCE OF FUNDS
|
|
OO
|
5.
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
|
[_]
|
|
6.
|
CITIZENSHIP OR PLACE OF ORGANIZATION
|
|
Cyprus
|
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
||
7.
|
SOLE VOTING POWER
|
|
0
|
8.
|
SHARED VOTING POWER
|
|
*109,605,395
|
9.
|
SOLE DISPOSITIVE POWER
|
|
0
|
10.
|
SHARED DISPOSITIVE POWER
|
[_]
|
|
*109,605,395
|
11.
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
|
|
PERSON
|
||
*109,605,395
|
12.
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
|
||
CERTAIN SHARES
|
|||
[_]
|
13.
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
|
|
62.1%
|
14.
|
TYPE OF REPORTING PERSON
|
|
CO
|
CUSIP No.
|
G39637106
|
1.
|
NAME OF REPORTING PERSONS
|
|
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
|
||
John Fredriksen*
|
2.
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
||
(a)
|
[_]
|
||
(b)
|
[_]
|
3.
|
SEC USE ONLY
|
|
4.
|
SOURCE OF FUNDS
|
|
OO
|
5.
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
|
[_]
|
|
6.
|
CITIZENSHIP OR PLACE OF ORGANIZATION
|
|
Cyprus
|
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
||
7.
|
SOLE VOTING POWER
|
|
68,745
|
8.
|
SHARED VOTING POWER
|
|
109,605,395
|
9.
|
SOLE DISPOSITIVE POWER
|
|
68,745
|
10.
|
SHARED DISPOSITIVE POWER
|
[_]
|
|
109,605,395
|
11.
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
|
|
PERSON
|
||
109,674,140
|
12.
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
|
||
CERTAIN SHARES
|
|||
[_]
|
13.
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
|
|
62.1%
|
14.
|
TYPE OF REPORTING PERSON
|
|
IN
|
(a),(f) | The persons filing this statement are Frontline 2012 Ltd., a company incorporated in Bermuda ("Frontline"), Hemen Holding Limited, a company incorporated in Cyprus ("Hemen"), Greenwich Holdings Limited, a company incorporated in Cyprus ("Greenwich"), C.K. Limited, a company incorporated in Jersey ("C.K. Limited"), Franklin Enterprises Inc., a company incorporated in Liberia ("Franklin"), and John Fredriksen, a citizen of Cyprus ("Fredriksen," and, together with Frontline, Hemen, Greenwich, and Franklin, are the "Reporting Persons"). |
(b) | The address of the principal place of business of Frontline is Par-la-Ville Place, 4th Floor, 14 Par-la-Ville Road, Hamilton HM 08, Bermuda. |
(c) | The principal business of Frontline is acting as a ship owning and investment company. The principal business of Hemen, Greenwich and Franklin is acting as investment holding companies. Hemen is the largest shareholder in Frontline, holding approximately 61.1% of Frontline's issued and outstanding shares. Greenwich is the sole shareholder of Hemen and Franklin. The principal business of C.K. Limited (the "Trusts") is acting as trustees of various trusts established by John Fredriksen (who serves as a Director of Frontline) for the benefit of his immediate family members. The Trusts are the owners of Greenwich. As a result of the foregoing, the total Common Shares reported as beneficially owned by each of Frontline, Hemen, Greenwich, Franklin and C.K. Limited are reported as beneficially owned by Mr. Fredriksen. |
John Fredriksen
|
Director
|
Mr. Fredriksen is a citizen of Cyprus and his principal business address is c/o Frontline Corporate Services Limited, 15 Sloane Square, London SW1W 8ER, UK. Mr. Fredriksen is also the President, Director and Chairman of the Board of Seadrill Limited; Chairman, President, Chief Executive Officer and a Director of Frontline Ltd.; and Director of Golden Ocean Group Limited.
|
Harald Thorstein
|
Director
|
Mr. Thorstein is currently employed by Frontline Corporate Services in London, prior to which he was employed in the Corporate Finance division of DnB NOR Markets, specializing in the offshore and shipping sectors. Mr. Thorstein has an MSc in Industrial Economics and Technology Management from the Norwegian University of Science and Technology. Mr. Thorstein has also served as a director of Seadrill Partners LLC since 2012 and is a director of Deep Sea Supply Plc., North Atlantic Drilling Ltd. and Northern Offshore Limited.
|
Cecile Fredriksen
|
Director
|
Ms. Fredriksen is a citizen of Norway. Her principal occupation is serving as a Director of Frontline.
|
Kate Blankenship
|
Director
|
Ms. Blankenship is a citizen of the United Kingdom. Ms. Blankenship also serves as a Director of Seadrill Limited, Seadrill Partners LLC, Golar LNG Partners, Golar LNG Limited, Archer Limited, Frontline Ltd., Golden Ocean Group Limited, Independent Tankers Corporation Limited and North Atlantic Drilling Ltd.
|
Georgina E. Sousa
|
Director & Secretary
|
Ms. Sousa is a citizen of the United Kingdom. Her principal occupation is serving as Director and Secretary of Frontline, and she also serves as a Director of Frontline Ltd. and Golden Ocean Group Limited.
|
Claire M.E. Burnard
|
Assistant
Secretary |
Ms. Burnard is a citizen of the British Overseas Territories. Her principal occupation is serving as Assistant Secretary of Frontline.
|
Colleen E. Simmons
|
Assistant
Secretary |
Ms. Simmons is a citizen of the British Overseas Territories. Her principal occupation is serving as Assistant Secretary of Frontline.
|
Demetrios Antoniou Hannas
|
Director
|
Mr. Hannas' principal business address is Deana Beach Apartments, Block 1, 4th Floor, Promachon Eleftherias Street, Ayios Athanasios, CY–4103 Limassol, Cyprus. Mr. Hannas is a citizen of Cyprus.
|
Kyriacos Kazamias
|
Director
|
Mr. Kazamias' principal business address is Georgiou Drosini 6, Potamos Germasogeias, CY4043 Limassol, Cyprus. Mr. Kazamias is a citizen of Cyprus.
|
Kostas Pallaris
|
Director
|
Mr. Pallaris' principal business address is Deana Beach Apartments, Block 1, 4th Floor, Promachon Eleftherias Street, Ayios Athanasios, CY–4103 Limassol, Cyprus. Mr. Pallaris is a citizen of Cyprus.
|
Demetrios Antoniou Hannas
|
Director
|
Mr. Hannas' principal business address is Deana Beach Apartments, Block 1, 4th Floor, Promachon Eleftherias Street, Ayios Athanasios, CY – 4103 Limassol, Cyprus. Mr. Hannas is a citizen of Cyprus.
|
Christoforis Koufaris
|
Director
|
Mr. Koufaris' principal business address is Iris House 840A, 8 John Kennedy Street, P.O. Box 53510, 3303 Limassol, Cyprus. Mr. Koufaris is a citizen of Cyprus.
|
Kyriacos Kazamias
|
Director
|
Mr. Kazamias' principal business address is Georgiou Drosini 6, Potamos Germasogeias, CY4043 Limassol, Cyprus. Mr. Kazamias is a citizen of Cyprus.
|
Kostas Pallaris
|
Director
|
Mr. Pallaris' principal business address is Deana Beach Apartments, Block 1, 4th Floor, Promachon Eleftherias Street, Ayios Athanasios, CY4103, Limassol, Cyprus. Mr. Pallaris is a citizen of Cyprus.
|
Demetrios Antoniou Hannas
|
Director
|
Mr. Hannas' principal business address is Deana Beach Apartments, Block 1, 4th Floor, Promachon Eleftherias Street, Ayios Athanasios, CY–4103 Limassol, Cyprus. Mr. Hannas is a citizen of Cyprus.
|
Chris Bunt
|
Director
|
Mr. Bunt's principal business address is 13 Castle Street, St. Helier, Jersey JE4 5UT. Mr. Bunt is a citizen of Jersey.
|
Charles Guy Malet de Carteret
|
Director
|
Mr. Carteret's principal business address is 13 Castle Street, St. Helier, Jersey JE4 5UT. Mr. Carteret is a citizen of Jersey.
|
Simon Paul Alan Brewer
|
Director
|
Mr. Brewer's principal business address is 13 Castle Street, St. Helier, Jersey JE4 5UT. Mr. Brewer is a citizen of Jersey.
|
Georgina Sousa
|
Director
|
Ms. Sousa's principal business address is Par-la-Ville Place, 4th Floor, 14 Par-la-Ville Road, Hamilton HM 08, Bermuda.
|
Colleen Simmons
|
Director
|
Ms. Simmons' principal business address is Par-la-Ville Place, 4th Floor, 14 Par-la-Ville Road, Hamilton HM 08, Bermuda.
|
Demetrious Antoniou Hannas
|
Director
|
Mr. Hannas' principal business address is Deana Beach Apartments, Block 1, 4th Floor, Promachon Eleftherias Street, Ayios Athanasios, CY–4103 Limassol, Cyprus. Mr. Hannas is a citizen of Cyprus.
|
(d),(e) | None of the Reporting Persons nor any manager or executive officer of the Reporting Persons, has, during the past five years, (a) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting, or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. |
(e) | N/A |
April 28, 2015
|
||
(Date)
|
||
Frontline 2012 Ltd.
|
||
By: /s/ Georgina E. Sousa
|
||
Name: Georgina E. Sousa
Title: Director/Secretary
|
||
Hemen Holding Limited
|
||
By: /s/ Demetrios Antoniou Hannas
|
||
Name: Demetrios Antoniou Hannas
Title: Director
|
||
Greenwich Holdings Limited
|
||
By: /s/ Demetrios Antoniou Hannas
|
||
Name: Demetrios Antoniou Hannas
Title: Director
|
||
C.K. Limited
|
||
By: /s/ Demetrios Antoniou Hannas
|
||
Name: Demetrios Antoniou Hannas
Title: Director
|
||
Franklin Enterprises Inc.
|
||
By: /s/ Demetrios Antoniou Hannas
|
||
Name: Demetrios Antoniou Hannas
Title: Director
|
||
/s/ John Fredriksen
|
||
(Signature)
|
||
John Fredrisken
(Name)
|
April 28, 2015
|
||
(Date)
|
||
Frontline 2012 Ltd.
|
||
By: /s/ Georgina E. Sousa
|
||
Name: Georgina E. Sousa
Title: Director Secretary
|
||
Hemen Holding Limited
|
||
By: /s/ Demetrios Antoniou Hannas
|
||
Name: Demetrios Antoniou Hannas
Title: Director
|
||
Greenwich Holdings Limited
|
||
By: /s/ Demetrios Antoniou Hannas
|
||
Name: Demetrios Antoniou Hannas
Title: Director
|
||
C.K. Limited
|
||
By: /s/ Demetrios Antoniou Hannas
|
||
Name: Demetrios Antoniou Hannas
Title: Director
|
||
Franklin Enterprises Inc.
|
||
By: /s/ Demetrios Antoniou Hannas
|
||
Name: Demetrios Antoniou Hannas
Title: Director
|
||
/s/ John Fredriksen
|
||
(Signature)
|
||
John Fredrisken
(Name/Title)
|
Clause
|
Page
|
|
1
|
INTERPRETATION
|
2
|
2
|
THE BONDS
|
7
|
3
|
LISTING
|
8
|
4
|
REGISTRATION IN THE SECURITIES DEPOSITORY
|
8
|
5
|
PURCHASE AND TRANSFER OF BONDS
|
8
|
6
|
CONDITIONS PRECEDENT
|
8
|
7
|
REPRESENTATIONS AND WARRANTIES
|
9
|
8
|
STATUS OF THE BONDS AND SECURITY
|
11
|
9
|
INTEREST
|
11
|
10
|
MATURITY OF THE BONDS, CALL OPTION, CHANGE OF CONTROL
|
11
|
11
|
PAYMENTS
|
15
|
12
|
ISSUER'S ACQUISITION OF BONDS
|
16
|
13
|
CONVERSION TERMS
|
16
|
14
|
ADJUSTMENT OF THE CONVERSION PRICE
|
17
|
15
|
MERGER AND DE-MERGER
|
28
|
16
|
COVENANTS
|
29
|
17
|
FEES AND EXPENSES
|
31
|
18
|
EVENTS OF DEFAULT
|
32
|
19
|
BONDHOLDERS' MEETING
|
34
|
20
|
THE BOND TRUSTEE
|
36
|
21
|
MISCELLANEOUS
|
38
|
Attachments
|
||
1. Compliance Certificate
|
(1) | Golden Ocean Group Ltd (a company existing under the laws of Bermuda with registration number 36066) as issuer (the "Issuer"); and |
(2) | Norsk Tillitsmann ASA (a company existing under the laws of Norway with registration number 963 342 624) as Bond Trustee (the "Bond Trustee"). |
1 | INTERPRETATION |
1.1 | Definitions |
(a) | moneys borrowed or raised; |
(b) | any acceptance credit or discounting facility; |
(c) | any bond, note, debenture, loan stock or other similar instrument; |
(d) | any liability in respect of any lease or hire purchase contract which would, in accordance with GAAP, be treated as a finance or capital lease; |
(e) | receivables sold or discounted (other than any receivables sold on a non-recourse basis); |
(f) | any sale and lease-back transaction, or similar transaction which is treated as indebtedness under GAAP; |
(g) | the acquisition cost of any asset to the extent payable after its acquisition or possession by the party liable where the deferred payment is arranged primarily as a method of raising finance or financing the acquisition of that asset; |
(h) | any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price, including without limitation currency or interest rate swaps, caps or collar transactions (and, when calculating the value of the transaction, only the mark-to-market value payable to the other counterparty shall be taken into account); |
(i) | any amounts raised under any other transactions having the commercial effect of a borrowing or raising of money, whether recorded in the balance sheet or not (including any forward sale or purchase agreement); |
(j) | any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institutions; and |
(k) | (without double counting) any guarantee, indemnity or similar assurance against financial loss of any person in respect of any of the items referred to in (a) through (j) above. |
1.2 | Construction |
(a) | headings are for ease of reference only; |
(b) | words denoting the singular number shall include the plural and vice versa; |
(c) | references to clauses are references to the clauses of this Bond Agreement; |
(d) | references to a time is a reference to Oslo time unless otherwise stated herein; |
(e) | references to a provision of law is a reference to that provision as it may be amended or re-enacted, and to any regulations made by the appropriate authority pursuant to such law, including any determinations, rulings, judgments and other binding decisions relating to such provision or regulation; |
(f) | an Event of Default is "continuing" if it has not been remedied or waived; and |
(g) | references to a "person" shall include any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality). |
2 | THE BONDS |
2.1 | Binding nature of this Bond Agreement |
2.2 | Availability |
2.3 | The Bonds |
(a) | The Issuer has resolved to issue a series of Bonds in the maximum aggregate amount of USD 200,000,000. |
(b) | The Face Value is USD 200,000. The Bonds shall rank pari passu between themselves. |
(c) | The Bond Issue will be described as "3.07 per cent. Golden Ocean Group Limited Senior Unsecured Convertible Bond Issue 2014/2019". |
(d) | The ISIN of the Bond Issue will be NO 001 0701055. |
(e) | The tenor of the Bonds is from and including the Issue Date to but excluding the Maturity Date, or earlier if all of the Bonds are redeemed prior to the Maturity Date following (i) the Bondholders' exercise of their Conversion Right, (ii) the Issuer's exercise of the Call Option pursuant to clause 10.2, and/or (iii) otherwise pursuant to the terms and conditions set forth herein. |
2.4 | Purpose and utilization |
3 | LISTING |
4 | REGISTRATION IN THE SECURITIES DEPOSITORY |
4.1 | Registration |
4.2 | Notifications |
4.3 | US Securities Act |
5 | PURCHASE AND TRANSFER OF BONDS |
5.1 | Bondholders may be subject to purchase or transfer restrictions with regard to the Bonds, as applicable from time to time under local laws to which a Bondholder may be subject (due e.g. to its nationality, its residency, its registered address, its place(s) for doing business). Each Bondholder must ensure compliance with applicable local laws and regulations at its own cost and expense. |
5.2 | Notwithstanding the above, a Bondholder which has purchased the Bonds in breach of applicable mandatory restrictions may nevertheless utilize its rights (including, but not limited to, voting rights) under this Bond Agreement. |
6 | CONDITIONS PRECEDENT |
6.1 | Disbursement of the net proceeds from the Bond Issue to the Issuer will be subject to the Bond Trustee having received the following documents, in form and substance reasonably satisfactory to it, at least two (2) Business Days prior to the Issue Date (save for (i) below to be delivered on the Issue Date): |
(a) | the Bond Agreement duly executed by all parties thereto; |
(b) | certified copies of all necessary corporate resolutions of the Issuer to issue the Bonds and execute the Finance Documents; |
(c) | a power of attorney from the Issuer to relevant individuals for their execution of the relevant Finance Documents, or extracts from the relevant register or similar documentation evidencing such individuals' authorisation to execute the Finance Documents on behalf of the Issuer; |
(d) | certified copies of (i) the Certificate of Incorporation or other similar official document for the Issuer, evidencing that it is validly registered and existing and (ii) the Bye-laws of the Issuer; |
(e) | the latest available Financial Statements and Interim Accounts (if any); |
(f) | confirmation from Norwegian counsel to the Managers that the subscription documents have been reviewed by Norwegian counsel to the Managers and that a prospectus is not required according to Norwegian law; |
(g) | to the extent necessary, any public authorisations required for the Bond Issue; |
(h) | confirmation from the Paying Agent that the Bonds have been registered in the Securities Depository; |
(i) | written confirmation from the Issuer that the representations and warranties set out in clause 7 are true and accurate and have been complied with as at the Issue Date; |
(j) | the Bond Trustee fee agreement referenced in clause 17.2, duly executed; |
(k) | copies of any written documentation used in the marketing of the Bonds or made public by the Issuer or the Managers in connection with the Bond Issue; and |
(I) | any statements or legal opinions reasonably required by the Bond Trustee (including any capacity corporate opinions for the Issuer and opinions related to the validity, perfection and enforceability of the Finance Documents). |
6.2 | The Bond Trustee may, in its reasonable opinion, waive the deadline or requirements for documentation as set out in clause 6.1. |
6.3 | Disbursement of the net proceeds from the Bonds is subject to the Bond Trustee's written notice to the Issuer, the Managers and the Paying Agent that the documents have been controlled and that the required conditions precedent are fulfilled. |
6.4 | On the Issue Date, subject to receipt of confirmation from the Bond Trustee pursuant to clause 6.3, the Managers shall make the net proceeds from the Bond Issue available to the Issuer. |
7 | REPRESENTATIONS AND WARRANTIES |
7.1 | Status |
7.2 | Power and authority |
7.3 | Valid, binding and enforceable obligations |
7.4 | Non-conflict with other obligations |
7.5 | No Event of Default |
7.6 | Authorisations and consents |
7.7 | Litigation |
7.8 | Financial Statements |
7.9 | No Material Adverse Effect |
7.10 | No misleading information |
7.11 | Intellectual property |
7.12 | No withholdings |
7.13 | Share Conversion |
7.14 | Repetition |
8 | STATUS OF THE BONDS AND SECURITY |
8.1 | Status |
8.2 | The Bonds are unsecured. |
9 | INTEREST |
9.1 | Interest rate |
9.2 | Interest Payment Dates |
9.3 | Calculation of interest payments |
(a) | The relevant interest payable amount shall be calculated based on a period from, and including, one Interest Payment Date to, but excluding, the next following applicable Interest Payment Date. |
(b) | The day count fraction ("Fixed Rate Day Count Fraction") in respect of the calculation of the payable interest amount shall be "30/360", which means that the number of days in the calculation period in respect of which payment is being made divided by 360 (the number of days to be calculated on the basis of a year of 360 days with twelve 30-day months (unless (i) the last day of the calculation period is the 31st day of a month but the first day of the calculation period is a day other than the 30th or 31st day of a month, in which case the month that includes that last day shall not be considered to be shortened to a 30-day month, or (ii) the last day of the calculation period is the last day of the month of February, in which case the month of February shall not be considered to be lengthened to a 30-day month)). |
(c) | The payable interest amount per Bond for a relevant calculation period shall be calculated as follows: |
Interest =
|
Face
|
x
|
Fixed
|
x
|
Fixed Rate
|
|
Amount
|
Value
|
Rate
|
Day Count Fraction
|
10 | MATURITY OF THE BONDS, CALL OPTION, CHANGE OF CONTROL |
10.1 | Maturity Date |
10.2 | Clean-up Call Option |
10.3 | Put Option |
(a) | require early redemption of its Bonds (a "Put Option") at 100% of their par value plus accrued but unpaid interest to (but excluding) the redemption date; or |
(b) | convert its Bonds at the "Change of Control Conversion Price", which shall be calculated as set out below, but in each case adjusted, if appropriate, under the provisions of clauses 13 and 14 (provided that no adjustment to the Conversion Price will be made in respect of such Change of Control Event other than pursuant to this clause 10.3 in respect of exercise of the conversion right in the Change of Control Conversion Period): |
COCCP =
|
[RPx (N - n)] + [(OCP x n)]
|
||
N
|
where:
|
||
COCCP
|
is the Change of Control Conversion Price;
|
|
RP
|
is the Reference Price (adjusted pro rata for any adjustment to the Conversion Price pursuant to clause 13 or 14);
|
|
OCP
|
is the current Conversion Price on the relevant Conversion Date;
|
|
N
|
is the number of days from (and including) the Issue Date to (but excluding) the Maturity Date; and
|
|
n
|
is the number of days from (and including) the Issue Date to (but excluding) the date of the Change of Control Event.
|
10.4 | Share Settlement Option |
(a) | issuing or transferring and delivering to the relevant Bondholder such number of Shares as is determined by dividing the aggregate principal amount of such Bondholder's Bonds by the Conversion Price in effect on the Valuation Date; |
(b) | making payment to the relevant Bondholder of an amount (the "Cash Settlement Amount") equal to the amount (if any) by which the aggregate principal amount of such Bonds exceeds the product of the Current Value of a Share on the Valuation Date and the whole number of Shares deliverable to such Bondholder in accordance with (a) above in respect of such Bonds; and |
(c) | making or procuring payment to the relevant Bondholder in cash of any accrued and unpaid interest in respect of such Bonds up to the Maturity Date. |
(a) | Shares to be issued or transferred and delivered as contemplated by this clause 10.4 shall be deemed to be issued or transferred and delivered as of the relevant due date for redemption or, in the case of any Additional Redemption Settlement Shares, as of the relevant Share Settlement Reference Date. The Issuer shall, no later than fifteen (15) Business Days after the Valuation Date, register the new Shares on the Relevant Stock Exchange and in the Securities Depository. |
(b) | A Bondholder must pay any taxes and capital, stamp, issue and registration and transfer taxes or duties arising on the relevant Redemption Settlement Shares (other than any taxes and capital, stamp, issue and registration duties payable in Norway or Bermuda arising on conversion and on the issue and delivery of Shares, which shall be paid by the Issuer) and such Bondholder must pay all, if any, taxes arising by reference to any disposal or deemed disposal of a Bond or interest thereon in connection with such redemption. |
(c) | The Redemption Settlement Shares will be fully paid and will in all respects rank part passu with the fully paid Shares in issue on the relevant due date for redemption or, in the case of Additional Redemption Shares, on the relevant Share Settlement Reference Date, except in any such case for any right excluded by mandatory provisions of applicable law and except that such Shares or, as the case may be, Additional Redemption Shares will not rank for any rights, distributions or payments the record date (or other due date for the establishment of entitlement) for which falls prior to the relevant due date for redemption or, as the case may be, the relevant Share Settlement Reference Date. |
10.5 | If the Valuation Date in relation to the conversion of any Bond shall be after the record date in respect of any consolidation or sub-division as is mentioned in clause 14.1, or after the record date or other due date for the establishment of entitlement for any such issue, distribution, grant or offer (as the case may be) as is mentioned in clause 14.2, 14.3, 14.4, 14.5, or 14.6,or after any such issue or grant as is mentioned in clause 14.6 and 14.7, but before the relevant adjustment becomes effective under clause 14 (such adjustment, a "Share Settlement Retroactive Adjustment"), then the Issuer shall (conditional upon the relevant adjustment becoming effective) procure that there shall be issued or transferred and delivered to the relevant Bondholder, such additional number of Shares (if any) (the "Additional Redemption Settlement Shares") as, together with the Shares issued or to be transferred and delivered on redemption of the relevant Bond, is equal to the number of Shares which would have been required to be issued or delivered on redemption of such Bond if the relevant adjustment (more particularly referred to in the said provisions of clause 14) to the Conversion Price had been made and become effective immediately prior to the relevant Valuation Date. Additional Redemption Settlement Shares will be delivered to Bondholders not later than ten (10) Business Days following the date the relevant Share Settlement Retroactive Adjustment becomes effective (the "Share Settlement Reference Date"). |
11 | PAYMENTS |
11.1 | Covenant to pay |
(a) | The Issuer will on any Payment Date (or any other due date pursuant to any Finance Document) unconditionally pay to or to the order of the Bond Trustee all amounts due under this Bond Agreement or any other Finance Document. |
(b) | The covenant contained in clause 11.1(a) shall be for the benefit of the Bond Trustee and the Bondholders. |
11.2 | Payment mechanics |
(a) | If no specific order is made by the Bond Trustee under clause 11.1(a) the Issuer shall pay all amounts due to the Bondholders under this Bond Agreement or any other Finance Document by crediting the bank account nominated by each Bondholder in connection with its securities account in the Securities Depository. |
(b) | Payment shall be deemed to have been made once the amount has been credited to the bank which holds the bank account nominated by the Bondholder in question, but if the paying bank and the receiving bank are the same, payment shall be deemed to have been made once the amount has been credited to the bank account nominated by the Bondholder in question, see however clause 11.3. |
(c) | In case of irregular payments, the Bond Trustee may instruct the Issuer or Bondholders of other payment mechanisms than described in clause 11.2(a) or 11.2(b) above. The Bond Trustee may also obtain payment information regarding Bondholders' accounts from the Securities Depository or Account Managers. |
(d) | Subject to clause 11.3, payment by the Issuer in accordance with this clause 11.2 shall constitute good discharge of its obligations under clause 11.1(a). |
11.3 | Currency |
(a) | If the Bonds are denominated in other currencies than NOK, each Bondholder has to provide the Paying Agent (either directly or through its Account Manager) with specific payment instructions, including foreign exchange bank account details. Depending on any currency exchange settlement agreements between each Bondholder's bank and the Paying Agent, cash settlement may be delayed, and payment shall be deemed to have been made at the date of the cash settlement, provided however, that no default interest or other penalty shall accrue for the account of the Issuer. |
(b) | Except as otherwise expressly provided, all amounts payable under this Bond Agreement and any other Finance Document shall be payable in the same currency as the Bonds are denominated in. If, however, the Bondholder has not given instruction as set out in clause 11.3 within five Business Days prior to a Payment Date, the cash settlement will be exchanged into NOK and credited to the NOK bank account registered with the Bondholder's account in the Securities Depository. |
(c) | Amounts payable in respect of costs, expenses, taxes and other liabilities of a similar nature shall be payable in the currency in which they are incurred. |
11.4 | Set-off and counterclaims |
11.5 | Interest in the event of late payment |
(a) | In the event that any amount due under this Bond Agreement or any Finance Document is not made on the relevant due date, the unpaid amount shall bear interest from the due date at an interest rate equivalent to the interest rate according to clause 9 plus five per cent. (5.00%) per annum. |
(b) | The interest charged under this clause 11.5 shall be added to the defaulted amount on each respective Interest Payment Date relating thereto until the defaulted amount has been repaid in full. |
(c) | The unpaid amounts shall bear interest as stated above until payment is made, whether or not the Bonds are declared to be in default pursuant to clause 18.1-18.9, cf. clauses 18.10 |
11.6 | Partial payments |
(a) | first, in or towards payment of any unpaid fees, costs and expenses of the Bond Trustee under the Finance Documents; |
(b) | secondly, in or towards payment of any accrued interest due but unpaid under the Bond Agreement, pro rata and without any preference or priority of any kind; and |
(c) | thirdly, in or towards payment of any principal due but unpaid under the Bond Agreement, pro rata and without any preference or priority of any kind. |
12 | ISSUER'S ACQUISITION OF BONDS |
13 | CONVERSION TERMS |
13.1 | Each Bondholder may exercise one or more of his Conversion Right(s) at the Conversion Price at any time during the Exercise Period (subject to any applicable fiscal or other laws) provided that notification thereof is given pursuant to clause 13.4. |
13.2 | The Conversion Right cannot be separated from the Bond. |
13.3 | The number of Shares to be issued on exercise of a Conversion Right shall be determined by dividing the principal amount of the relevant Bond or Bonds by the Conversion Price in effect on the relevant Conversion Date. The Conversion Price shall be subject to adjustment pursuant to clause 10.3, 14 and 15. |
13.4 | In order to exercise a Conversion Right, the Bondholder shall deliver to the specified office of the Paying Agent (via its Account Manager) during its usual business hours a duly completed, irrevocable and signed exercise notice and the relevant Bond(s) through the Securities Depositary. If such delivery is made after the end of normal business hours or on a day which is not a Business Day in the place of the specified office of the Paying Agent, such delivery shall be deemed for purposes of this Bond Agreement to have been on the next Business Day following such delivery day. Request for conversion takes place by the |
13.5 | Conversion will be effected by a set-off of the total nominal value of the Bonds to be converted against the issuing of the whole number of Shares resulting from dividing the total nominal value of the Bonds to be converted by the Conversion Price. Any excess amount beyond the whole number of Shares converted by the Bonds shall fall to the Issuer and accordingly fractions of Shares will not be issued or transferred upon exercise of a Conversion Right and no cash payment will be made in lieu thereof. Where Conversion Rights are exercised by a Bondholder in respect of more than one Bond, the number of Shares to be issued will be determined on the basis of the aggregate principal amount of such Bonds. |
13.6 | The Issuer shall (if relevant via the Paying Agent) on or prior to or with effect from the Conversion Date (i) carry the conversion into effect by, at its own discretion, issuing the relevant number of new Shares or transferring existing Shares to the converting Bondholder or his nominee, (ii) ensure the due registration of such Shares in the Securities Depository (at the account of the converting Bondholder) and listing of such Shares on the Relevant Stock Exchange (and shall deliver any such documents and do any acts necessary in relation thereto) (but this obligation to list such Shares shall not be considered as being breached as a result of a Change of Control (whether or not recommended or approved by the board of directors of the Issuer) that causes or gives rise to, whether following the operation of any applicable compulsory acquisition provision or otherwise including at the request of the person or persons controlling the Issuer as a result of the Change of Control, a de-listing of the Shares), and (iii) ensure that the Outstanding bonds shall be written down. Upon the issuance or transfer of the Shares on conversion of any Bonds in accordance with the terms of this Bond Agreement, the Issuer shall have no further liability in respect of such Bonds. |
13.7 | Shares issued or transferred upon conversion of the Bonds will be fully paid and will in all respects rank pari passu with the Shares in issue on the relevant Conversion Date or, in the case of Additional Shares, on the relevant Reference Date, except in any such case for any right excluded by mandatory provisions of applicable law and except that such Shares or, as the case may be, Additional Shares will not rank for any rights, distributions or payments the record date (or other due date for the establishment of entitlement) for which falls prior to the relevant Conversion Date or, as the case may be, the relevant Reference Date. |
14 | ADJUSTMENT OF THE CONVERSION PRICE |
14.1 | If and whenever there shall be a consolidation, reclassification or subdivision of the Shares, the Conversion Price shall be adjusted by multiplying the Conversion Price in force immediately prior to such consolidation, reclassification or subdivision by the following fraction: |
A
|
||
B
|
||
A | is the aggregate number of Shares in issue immediately before such consolidation, reclassification or subdivision, as the case may be; and |
B | is the aggregate number of Shares in issue immediately after, and as a result of, such consolidation, reclassification or subdivision, as the case may be. |
14.2 | If and whenever the Issuer shall issue any Shares credited as fully paid to the Shareholders by way of capitalisation of profits or reserves (including any share premium account or capital redemption reserve) other than (1) where any such Shares issued instead of the whole or part of a Dividend in cash which the Shareholders would or could otherwise have received or (2) where the Shareholders may elect to receive a Dividend in cash in lieu of such Shares, the Conversion Price shall be adjusted by multiplying the Conversion Price in force immediately prior to such issue by the following fraction: |
A
|
||
B
|
||
A | is the aggregate nominal amount of the Shares in issue immediately before such issue; and |
B |
is the aggregate nominal amount of the Shares in issue immediately after such issue.
|
14.3 | If and whenever the Issuer shall pay or make any Dividend to Shareholders, the Conversion Price shall be adjusted by multiplying the Conversion Price in force immediately prior to the relevant Dividend by the following fraction: |
A - B
|
||
A
|
||
A | is the Current Market Price of one Share on the first date on which the Shares are traded ex- the relevant Dividend on the Relevant Stock Exchange or, in the case of a purchase of Shares or any receipts or certificates representing Shares by or on behalf of the Issuer or any Subsidiary of the Issuer, is the Current Market Price of one Share on the date on which such Shares are purchased or, in the case of a Spin-Off, is the Current Market Price of one Share on the first date on which the Shares are traded ex- the relevant Spin-Off on the Relevant Stock Exchange; and |
B | is the portion of the Fair Market Value, with such portion being determined by dividing the Fair Market Value of the aggregate Dividend by the number of Shares entitled to receive the relevant Dividend (or, in the case of a purchase of Shares or |
14.4 | If and whenever the Issuer shall issue Shares to Shareholders as a class by way of rights, or issue or grant to Shareholders as a class by way of rights, any options, warrants or other rights to subscribe for or purchase any Shares or any Securities which by their terms carry (directly or indirectly) rights of conversion into, or exchange or subscription for, Shares (or shall grant any such rights in respect of existing Securities so issued) in each case at a price per Share which is less than 95 per cent. of the Current Market Price per Share on the Dealing Day immediately preceding the date of the first public announcement of the terms of the issue or grant of such Shares, options, warrants or other rights, the Conversion Price shall be adjusted by multiplying the Conversion Price in force immediately prior to the Effective Date by the following fraction: |
A + B
|
||
A + C
|
||
A | is the number of Shares in issue on the Effective Date; |
B | is the number of Shares which the aggregate amount (if any) payable for the Shares issued by way of rights, or for the Securities issued by way of rights, or for the options or warrants or other rights issued by way of rights and for the total number of Shares deliverable on the exercise thereof, would purchase at such Current Market Price per Share; and |
C | is the number of Shares issued or, as the case may be, the maximum number of Shares which may be issued upon exercise of such options, warrants or rights calculated as at the date of issue of such options, warrants or rights or upon conversion or exchange or exercise of rights of subscription or purchase in respect thereof at the initial conversion, exchange, subscription or purchase price or rate; provided that if at the time of issue of the relevant Securities or the date of grant of such rights (as used in this clause 14.4 the "Specified Date") such number of Shares is to be determined by reference to the application of a formula or other variable |
14.5 | If and whenever the Issuer shall issue any Securities (other than Shares or options, warrants or other rights to subscribe for or purchase any Shares) to Shareholders as a class by way of rights or grant to Shareholders as a class by way of rights any options, warrants or other rights to subscribe for or purchase any Securities (other than Shares or options, warrants or other rights to subscribe for or purchase Shares), the Conversion Price shall be adjusted by multiplying the Conversion Price in force immediately prior to the Effective Date the following fraction: |
A – B
|
||
A
|
A | is the Current Market Price of one Share on the Effecive Date; and |
B | is the Fair Market Value on the Effective Date of the portion of the rights attributable to one Share. |
14.6 | If and whenever the Issuer shall issue (otherwise than as mentioned in clause 14.4 above) wholly for cash or for no consideration any Shares (other than Shares issued on conversion of the Bonds or on the exercise of any rights of conversion into, or exchange or subscription for or purchase of, Shares) or issue or grant (otherwise than as mentioned in clause 14.4 above) wholly for cash or for no consideration any options, warrants or other rights to subscribe for or purchase any Shares (other than the Bonds), in each case at a price per Share which is less than 95 per cent. of the Current Market Price per Share on the Effective Date, the Conversion Price shall be adjusted by multiplying the Conversion Price in force immediately prior to such issue or grant by the following fraction: |
A + B
|
||
A + C
|
||
A | is the number of Shares in issue immediately before the issue of such Shares or the grant of such options, warrants or rights; |
B | is the number of Shares which the aggregate consideration (if any) receivable for the issue of such Shares or, as the case may be, for the Shares to be issued or otherwise made available upon the exercise of any such options, warrants or rights, would purchase at such Current Market Price per Share; and |
C | is the number of Shares to be issued pursuant to such issue of such Shares or, as the case may be, the maximum number of Shares which may be issued upon exercise of such options, warrants or rights calculated as at the date of issue of such options, warrants or rights; |
14.7 | If and whenever the Issuer or any Subsidiary of the Issuer or (at the direction or request of or pursuant to any arrangements with the Issuer or any Subsidiary of the Issuer) any other company, person or entity (otherwise than as mentioned in clause 14.4, 14.5 or 14.6 above) shall issue wholly for cash or for no consideration any Securities (other than the Bonds), which by their terms of issue carry (directly or indirectly) rights of conversion into, or exchange or subscription for, Shares (or shall grant any such rights in respect of existing Securities so issued) or Securities which by their terms might be redesignated as Shares, and the consideration per Share receivable upon conversion, exchange, subscription or redesignation is less than 95 per cent. of the Current Market Price per Share on the Effective Date, the Conversion Price shall be adjusted by multiplying the Conversion Price in force immediately prior to such issue (or grant) by the following fraction: |
A + B
|
||
A + C
|
||
A | is the number of Shares in issue immediately before such issue or grant (but where the relevant Securities carry rights of conversion into or rights of exchange or subscription for Shares which have been issued by the Issuer for the purposes of or in connection with such issue, less the number of such Shares so issued); |
B | is the number of Shares which the aggregate consideration (if any) receivable for the Shares to be issued or otherwise made available upon conversion or exchange or upon exercise of the right of subscription attached to such Securities or, as the case may be, for the Shares to be issued or to arise from any such redesignation would purchase at such Current Market Price per Share; and |
C | is the maximum number of Shares to be issued or otherwise made available upon conversion or exchange of such Securities or upon the exercise of such right of subscription attached thereto at the initial conversion, exchange or subscription price or rate or, as the case may be, the maximum number of Shares which may be |
14.8 | If and whenever there shall be any modification of the rights of conversion, exchange or subscription attaching to any such Securities (other than the Bonds) as are mentioned in clause 14.7 above (other than in accordance with the terms (including terms as to adjustment) applicable to such Securities upon issue) so that following such modification the consideration per Share receivable has been reduced and is less than 95 per cent. of the Current Market Price per Share on the Effective Date, the Conversion Price shall be adjusted by multiplying the Conversion Price in force immediately prior to the Effective Date by the following fraction: |
A + B
|
||
A + C
|
||
A | is the number of Shares in issue immediately before such modification (but where the relevant Securities carry rights of conversion into or rights of exchange or subscription for Shares which have been issued, purchased or acquired by the Issuer or any Subsidiary of the Issuer (or at the direction or request or pursuant to any arrangements with the Issuer or any Subsidiary of the Issuer) for the purposes of or in connection with such issue, less the number of such Shares so issued, purchased or acquired); |
B | is the number of Shares which the aggregate consideration (if any) receivable for the Shares to be issued or otherwise made available upon conversion or exchange or upon exercise of the right of subscription attached to the Securities so modified would purchase at such Current Market Price per Share or, if lower, the existing conversion, exchange or subscription price of such Securities; and |
C | is the maximum number of Shares which may be issued or otherwise made available upon conversion or exchange of such Securities or upon the exercise of such rights of subscription attached thereto at the modified conversion, exchange or subscription price or rate but giving credit in such manner as an Independent Financial Adviser shall consider appropriate for any previous adjustment under this clause 14.8 or clause 14.7 above; |
14.9 | If and whenever the Issuer or any Subsidiary of the Issuer or (at the direction or request of or pursuant to any arrangements with the Issuer or any Subsidiary of the Issuer) any other company, person or entity shall offer any Securities in connection with which offer Shareholders as a class are entitled to participate in arrangements whereby such Securities may be acquired by them (except where the Conversion Price falls to be adjusted under clause 14.2, 14.3, 14.4, 14.6 or 14.7 or clause 10.3 (or would fall to be so adjusted if the relevant issue or grant was at less than 95 per cent. of the Current Market Price per Share on the relevant Dealing Day) or under clause 14.5) the Conversion Price shall be adjusted by multiplying the Conversion Price in force immediately before the Effective Date by the following fraction: |
A – B
|
||
A
|
||
A | is the Current Market Price of one Share on the Effective Date; and |
B | is the Fair Market Value on the Effective Date of the relevant offer attributable to one Share. |
14.10 | Notwithstanding the foregoing provisions, where the events or circumstances giving rise to any adjustment pursuant to this clause 14 have already resulted or will result in an adjustment to the Conversion Price or where the events or circumstances giving rise to any adjustment arise by virtue of any other events or circumstances which have already given or will give rise to an adjustment to the Conversion Price or where more than one event which gives rise to an adjustment to the Conversion Price occurs within such a short period of time that, in the opinion of the Bond Trustee or the Issuer, a modification to the operation of the adjustment provisions is required to give the intended result, such modification shall be made to the operation of the adjustment provisions as may be advised by an Independent Financial Adviser to be in its opinion appropriate to give the intended result. |
14.11 | For the purpose of any calculation of the consideration receivable or price pursuant to clauses 14.4, 14.6, 14.7 and 14.8, the following provisions shall apply: |
(a) | the aggregate consideration receivable or price for Shares issued for cash shall be the amount of such cash; |
(b) | (x) the aggregate consideration receivable or price for Shares to be issued or otherwise made available upon the conversion or exchange of any Securities shall be deemed to be the |
(c) | if the consideration or price determined pursuant to clause 14.11(a) or 14.11(b)above (or any component thereof) shall be expressed in a currency other than NOK it shall be converted into NOK at such rate of exchange as may be determined in good faith by an Independent Financial Adviser to be the spot rate ruling at the close of business on the relevant Effective Date; and |
(d) | in determining consideration or price pursuant to the above, no deduction shall be made for any commissions or fees (howsoever described) or any expenses paid or incurred for any underwriting, placing or management of the issue of the relevant Shares or Securities or otherwise in connection therewith. |
14.12 | If the Conversion Date in relation to the conversion of any Bond shall be after the record date or other due date for any consolidation or sub-division as is mentioned in clause 14.1, or after the record date or other due date for the establishment of entitlement for any such issue, distribution, grant or offer (as the case may be) as is mentioned in clauses 14.2, 14.3, 14.4, 14.5 or 14.9, or after the date of the first public announcement of the terms of any such issue or grant as is mentioned in clause 14.6 and 14.7, in any case in circumstances where the relevant Conversion Date falls before the relevant adjustment becomes effective under clause 14 (such adjustment, a "Retroactive Adjustment"), then the Issuer shall (conditional upon the relevant adjustment becoming effective) procure that there shall be issued or delivered to the converting Bondholder, such additional number of Shares (if any) (the "Additional Shares") as, together with the Shares issued or to be issued or delivered on conversion of the relevant Bond (together with any fraction of a Share not so issued), is equal to the number of Shares which would have been required to be issued or delivered on conversion of such Bond if the relevant adjustment (more particularly referred to in the said provisions of clause 14) to the Conversion Price had in fact been made and become effective immediately prior to the relevant Conversion Date provided that if the relevant Bondholder shall be entitled to receive the relevant Dividend in respect of the Shares to be issued or delivered to it, then no such Retroactive Adjustment shall be made in relation to such Dividend and the relevant Bondholder shall not be entitled to receive Additional Shares in relation thereto. Additional Shares will be delivered to Bondholders not later than ten (10) Business Days following the date the relevant Retroactive Adjustment becomes effective (the "Reference Date"). |
14.13 | No adjustment will be made to the Conversion Price where Shares or other Securities (including rights, warrants, restricted stock units and options) are issued, offered, exercised, allotted, appropriated, modified or granted to, or for the benefit of, employees, contractors, directors or former employees (including |
14.14 | On any adjustment, the resultant Conversion Price, if not an integral multiple of USD 0.01, shall be rounded down to the nearest whole multiple of USD 0.01. No adjustment shall be made to the Conversion Price where such adjustment (rounded down if applicable) would be less than one per cent. of the Conversion Price then in effect. Any adjustment not required to be made, and/or any amount by which the Conversion Price has been rounded down, shall be carried forward and taken into account in any subsequent adjustment, and such subsequent adjustment shall be made on the basis that the adjustment not required to be made had been made at the relevant time. |
14.15 | "Current Market Price" means, in respect of a Share at a particular date, the average of the Volume Weighted Average Price of a Share for the five consecutive Dealing Days ending on the Dealing Day immediately preceding such date; provided that if at any time during the said five-dealing-day period the Volume Weighted Average Price shall have been based on a price ex-Dividend (or ex- any other entitlement) and during some other part of that period the Volume Weighted Average Price shall have been based on a price cum-Dividend (or cum- any other entitlement), then: |
(a) | if the Shares to be issued or transferred do not rank for the Dividend (or entitlement) in question, the Volume Weighted Average Price on the dates on which the Shares shall have been based on a price cum-Dividend (or cum- any other entitlement) shall for the purpose of this definition be deemed to be the amount thereof reduced by an amount equal to the Fair Market Value of any such Dividend or entitlement per Share as at the Effective Date relating to such Dividend (or entitlement), determined on a gross basis and disregarding any withholding or deduction required to be made on account of tax; or |
(b) | if the Shares to be issued or transferred do rank for the Dividend (or entitlement) in question, the Volume Weighted Average Price on the dates on which the Shares shall have been based on a price ex-Dividend (or ex- any other entitlement) shall for the purpose of this definition be deemed to be the amount thereof increased by an amount equal to the Fair Market Value of any such Dividend or entitlement per Share as at the Effective Date relating to such Dividend (or entitlement), determined on a gross basis and disregarding any withholding or deduction required to be made on account of tax, |
(a) | where a Dividend in cash is announced which is to be, or may at the election of a Shareholder or Shareholders be, satisfied by the issue or delivery of Shares or other property or assets, or where a capitalisation of profits or reserves is announced which is to be, or may at the election of a Shareholder or Shareholders be, satisfied by the payment of the Dividend in cash, then for the purposes of this definition the Dividend in question shall be treated as a Cash Dividend of the greater of (i) such cash amount and (ii) the Fair Market Value (on the date of the first public announcement of such Dividend or capitalisation (as the case may be) or if later, the date on which the number of Shares (or amount of property or assets, as the case may be) which may be issued or delivered is determined), of such Shares or other property or assets; |
(b) | any issue of Shares falling within clause 13.2 shall be disregarded; |
(c) | a purchase or redemption or buy back of share capital of the Issuer by the Issuer or any Subsidiary of the Issuer shall not constitute a Dividend unless, in the case of purchases, redemptions or buy backs of Shares by or on behalf of the Issuer or any of its Subsidiaries, the weighted average price per Share (before expenses) on any one day (a "Specified Share Day") in respect of such purchases, redemptions or buy backs (translated, if not in NOK, into NOK at the spot rate ruling at the close of business on such day as determined in good faith by an Independent Financial Adviser (or if no such rate is available on that date, the equivalent rate on the immediately preceding date on which such rate is available), exceeds by more than 5 per cent. the average of the closing prices of the Shares on the Relevant Stock Exchange (as published by or derived from the Relevant Stock Exchange) on the five Dealing Days immediately preceding the Specified Share Day or, where an announcement (excluding, for the avoidance of doubt for these purposes, any general authority for such purchases approved by a general meeting of Shareholders or any notice convening such a meeting of Shareholders) has been made of the intention to purchase Shares at some future date at a specified price, on the five Dealing Days immediately preceding the date of such announcement, in which case such purchase shall be deemed to constitute a Dividend in NOK to the extent that the aggregate price paid (before expenses) in respect of such Shares purchased by the Issuer or, as the case may be, any of its Subsidiaries (translated where appropriate into NOK as provided above) exceeds the product of (i) 105 per cent. of the average closing price of the Shares determined as aforesaid and (ii) the number of Shares so purchased; and |
(d) | if the Issuer or any of its Subsidiaries shall purchase any receipts or certificates representing Shares, the provisions of paragraph (c) shall be applied in respect thereof in such manner and with such modifications (if any) as shall be determined in good faith by an Independent Financial Adviser, |
(a) | a distribution of Spin-Off Securities by the Issuer to Shareholders as a class; or |
(b) | any issue, transfer or delivery of any property or assets (including cash or shares or securities of or in or issued or allotted by any entity) by any entity (other than the Issuer) to Shareholders as a class, pursuant in each case to any arrangements with the Issuer or any of its Subsidiaries. |
14.16 | If changes are made in the share capital other than those mentioned above, which are unfavourable to the Bondholders compared to the Shareholders, the Bond Trustee and the Issuer shall agree on a new Conversion Price. This also applies to other transactions, which are unfavourable to the Bondholders compared to the Shareholders. |
14.17 | If an adjustment of the Conversion Price requires a conversion to USD, the exchange rate shall be the Prevailing Rate on the date triggering such adjustments. For the avoidance of doubt, when calculating weighted averages over several days, each day should apply the Prevailing Rate for that day. |
15 | MERGER AND DE-MERGER |
15.1 | In the case of any consolidation, amalgamation or merger of the Issuer with any other corporation (other than a consolidation, amalgamation or merger in which the Issuer is the continuing corporation), the Issuer will take such steps as shall be necessary (including the execution of an agreement supplemental to or amending the Bond Agreement) to ensure that each Bond then outstanding will (during the period in which Conversion Rights may be exercised) be converted into the class and amount of shares and other securities and property receivable upon such consolidation, amalgamation or merger by a holder of the number of Shares which would have been issuable upon exercise of Conversion Rights immediately prior to such consolidation, amalgamation or merger. Such supplemental agreement deed will provide for adjustments which will be as nearly equivalent as may be practicable to the adjustments provided for in clause 14. The above will apply, mutatis mutandis to any subsequent consolidations, amalgamations or mergers. |
15.2 | The provisions in this clause 15 have no limitation on the creditor's right of objection to the merger or de-merger. |
16 | COVENANTS |
16.1 | General |
16.2 | Information Covenants |
(a) | without being requested to do so, promptly inform the Bond Trustee in writing of any Event of Default, any event or circumstance which the Issuer understands or ought to understand may lead to an Event of Default and any other event which may have a Material Adverse Effect; |
(b) | without being requested to do so, inform the Bond Trustee in writing if the Issuer agrees to sell or dispose of all or a substantial part of its assets or operations, or change the nature of its business; |
(c) | without being requested to do so, prepare its Financial Statements and Interim Accounts in the English language available on the Issuer's website as soon as they become available, and not later than 120 days after the end of the financial year and not later than 60 days after the end of the relevant interim report period; |
(d) | at the request of the Bond Trustee send a report outlining the balance of Issuer's Bonds; |
(e) | without being requested to do so, inform the Bond Trustee of any changes in the registration of the Bonds in the Security Depository; |
(f) | without being requested to do so, forward to the Bond Trustee copies of any creditors' notifications of the Issuer, if relevant, including but not limited to; mergers, demergers and reduction of shareholders capital; |
(g) | so far as permitted by applicable law, at the request of the Bond Trustee provide the documents and information necessary to maintain the listing and quotation of the Bonds on the Exchange (if applicable) and to otherwise enable the Bond Trustee to carry out its rights and duties pursuant to the Bond Agreement and applicable laws and regulations; |
(h) | so far as permitted by applicable law, within a reasonable time limit provide information about the Issuer's financial condition as the Bond Trustee may reasonably request; |
(i) | of its own accord, inform the Bond Trustee of any event that results in an adjustment of the Conversion Price promptly thereafter; and |
(j) | following the occurrence of a Change of Control Event, within 14 calendar days after the Issuer becomes aware of it, notify the Bondholders (via the Securities Depository), the Bond Trustee and (if listed) the Exchange thereof. The notice shall specify (i) the applicable Change of Control Conversion Price and early redemption price, (ii) the Bondholders' entitlement to exercise their Conversion Rights or to exercise their right to require redemption of the Bonds, (iii) the Change of Control Conversion Period and (iv) relevant details concerning the Change of Control Event. |
16.3 | Compliance Certificate |
16.4 | Pari passu ranking |
16.5 | Mergers |
16.6 | De-mergers |
16.7 | Continuation of business |
(a) | The Issuer shall not cease to carry on its business. |
(b) | The Issuer shall procure that no substantial change is made to the general nature or scope of the business of the Group from that carried on at the date of this Bond Agreement, and/or as set out in this Bond Agreement. |
16.8 | Disposal of business |
(a) | the transaction is carried out at fair market value, on terms and conditions customary for such transactions; and |
(b) | such transaction would not have a Material Adverse Effect. |
16.9 | Arm's length transactions |
16.10 | Corporate status |
16.11 | Compliance with laws |
16.12 | Special Covenants |
(a) | During the term of the Bonds, the Issuer shall ensure that all Shares issued upon exercise of the Conversion Right in respect of the Bonds shall be registered in the Securities Depository on the Conversion Date and shall be listed on the Relevant Stock Exchange as soon as practicable thereafter (but this covenant shall not be considered as being breached as a result of a Change of Control (whether or not recommended or approved by the board of directors of the Issuer) that causes or gives rise to, whether following the operation of any applicable compulsory acquisition provision or otherwise including at the request of the person or persons controlling the Issuer as a result of the Change of Control, a de-listing of the Shares). |
(b) | During the term of the Bonds, the Issuer shall use its best endeavours to ensure that the Shares shall remain listed on the Relevant Stock Exchange (but this covenant shall not be considered as being breached as a result of a Change of Control (whether or not recommended or approved by the board of directors of the Issuer) that causes or gives rise to, whether following the operation of any applicable compulsory acquisition provision or otherwise including at the request of the person or persons controlling the Issuer as a result of the Change of Control, a de-listing of the Shares). |
(c) | During the term of the Bonds, the Issuer will not create, or have outstanding, any mortgage, charge, lien, pledge or other security interest, upon the whole or any part of its present or future assets or revenues (including any uncalled capital) to secure: |
(i) | any Relevant Indebtedness; or |
(ii) | any guarantee or indemnity in respect of any Relevant Indebtedness, |
(d) | During the term of the Bonds, the Issuer shall not take any action that would otherwise result in a reduction of the Conversion Price such that Shares would fall to be issued at a discount to their par value. |
17 | FEES AND EXPENSES |
17.1 | Expenses |
17.2 | Fee Agreement |
17.3 | Payment deficiency |
17.4 | Public fees |
17.5 | Withholding tax |
(a) | The Issuer is responsible for withholding any withholding tax imposed by applicable law on any payments to the Bondholders. |
(b) | If the Issuer is required by law to withhold any withholding tax from any payment under any Finance Document: |
(i) | the amount of the payment due from the Issuer shall be increased to such amount which is necessary to ensure that the Bondholders receive a net amount which is (after making the required withholding) equal to the payment which would have been due if no withholding had been required; and |
(ii) | the Issuer shall at the request of the Bond Trustee deliver to the Bond Trustee evidence that the required tax reduction or withholding has been made. |
18 | EVENTS OF DEFAULT |
18.1 | Non-payment |
18.2 | Breach of other obligations |
18.3 | Cross acceleration |
(a) | any Financial Indebtedness is not paid when due nor within any originally applicable grace period; |
(b) | any Financial Indebtedness is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described); or |
(c) | any commitment for any Financial Indebtedness is cancelled or suspended by a creditor as a result of an event of default (however described), always provided that a threshold in the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within paragraphs (a) to (c) above of a total of USD 10 million, or the equivalent thereof in other currencies, shall apply. |
18.4 | Misrepresentations |
18.5 | Insolvency |
(a) | The Issuer is unable or admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness. |
(b) | The aggregate value of the assets of the Group is less than its liabilities (taking into account contingent and prospective liabilities). |
(c) | A moratorium is declared in respect of any indebtedness of the Issuer. |
18.6 | Insolvency proceedings and dissolution |
(a) | the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) other than solvent liquidation or reorganization; |
(b) | a composition, compromise, assignment or arrangement with any creditor, having an adverse effect on the Issuer's ability to perform its payment obligations hereunder; |
(c) | the appointment of a liquidator (other than in respect of a solvent liquidation), receiver, administrative receiver, administrator, compulsory manager or other similar officer of any of its assets; or |
(d) | its dissolution, |
18.7 | Creditors' process |
18.8 | Impossibility or illegality |
18.9 | Material adverse change |
18.10 | Acceleration |
(a) | In the event that one or more of the circumstances mentioned in clause 18.1— 18.9 occurs and is continuing, the Bond Trustee can, in order to protect the interests of the Bondholders, declare the Outstanding Bonds including accrued interest, costs and expenses to be in default and due for immediate payment. |
(b) | In the event that one or more of the circumstances mentioned in clause 18.1— 18.9 occurs and is continuing, the Bond Trustee shall declare the Outstanding Bonds including accrued interest, costs and expenses to be in default and due for immediate payment if: |
(i) | the Bond Trustee receives a demand in writing that a default shall be declared from Bondholders representing at least 1/5 of the Voting Bonds, and the Bondholders' Meeting has not decided on other solutions; or |
(ii) | the Bondholders' Meeting has with simple majority decided to declare the Outstanding Bonds in default and due for payment. |
(c) | In the event that the Bond Trustee pursuant to the terms of clauses 18.10(a) or 18.10(b) declares the Outstanding Bonds to be in default and due for payment, the Bond Trustee shall immediately deliver to the Issuer a notice demanding payment of interest and principal due to the Bondholders under the Outstanding Bonds including accrued interest and interest on overdue amounts and expenses. |
19 | BONDHOLDERS' MEETING |
19.1 | Authority of the Bondholders' Meeting |
(a) | The Bondholders' Meeting represents the supreme authority of the Bondholders community in all matters relating to the Bonds, and has the power to make all decisions altering the terms and conditions of the Bonds, including, but not limited to, any reduction of principal or interest and any conversion of the Bonds into other capital classes. |
(b) | The Bondholders' Meeting cannot resolve that any overdue payment of any instalment shall be reduced unless there is a pro rata reduction of the principal that has not fallen due, but may resolve that accrued interest (whether overdue or not) shall be reduced without a corresponding reduction of principal. |
(c) | If a resolution by or an approval of the Bondholders is required, such resolution shall be passed at a Bondholders' Meeting, see however clause 21.1. Resolutions passed at Bondholders' Meetings shall be binding upon all Bondholders and prevail for all the Bonds. |
19.2 | Procedural rules for Bondholders' Meetings |
(a) | A Bondholders' Meeting shall be held at the written request of: |
(i) | the Issuer; |
(ii) | Bondholders representing at least 1/10 of the Voting Bonds; |
(iii) | the Relevant Stock Exchange, if the Bonds are listed; or |
(iv) | the Bond Trustee. |
(b) | The Bondholders' Meeting shall be summoned by the Bond Trustee. A request for a Bondholders' Meeting shall be made in writing to the Bond Trustee, and shall clearly state the matters to be discussed. |
(c) | If the Bond Trustee has not summoned a Bondholders' Meeting within ten (10) Business Days after having received a valid request, then the requesting party may summons the Bondholders' Meeting itself. |
(d) | The summons to a Bondholders' Meeting shall be dispatched no later than ten (10) Business Days prior to the date of the Bondholders' Meeting. The summons and a confirmation of each Bondholder's holdings of Bonds shall be sent to all Bondholders registered in the Securities Depository at the time of distribution. The Relevant Stock Exchange shall also be informed if the Bonds are listed. |
(e) | The summons shall specify the agenda of the Bondholders' Meeting. The Bond Trustee may in the summons also set out other matters on the agenda than those requested. If amendments to this Bond Agreement have been proposed, the main content of the proposal shall be stated in the summons. |
(f) | The Bond Trustee may restrict the Issuer from making any changes in the number of Voting Bonds in the period from distribution of the summons until the Bondholders' Meeting, by serving notice to it to such effect. |
(g) | Matters that have not been reported to the Bondholders in accordance with the procedural rules for summoning of a Bondholders' Meeting may only be adopted with the approval of all Voting Bonds. |
(h) | The Bondholders' Meeting shall be held on premises designated by the Bond Trustee. The Bondholders' Meeting shall be opened and shall, unless otherwise decided by the Bondholders' Meeting, be chaired by the Bond Trustee. If the Bond Trustee is not present, the Bondholders' Meeting shall be opened by a Bondholder, and be chaired by a representative elected by the Bondholders' Meeting. |
(i) | Minutes of the Bondholders' Meeting shall be kept. The minutes shall state the numbers of Bondholders and Bonds represented at the Bondholders' Meeting, the resolutions passed at the meeting, and the result of the voting. The minutes shall be signed by the chairman and at least one other person elected by the Bondholders' Meeting. The minutes shall be deposited with the Bond Trustee and shall be available to the Bondholders. |
(j) | The Bondholders, the Bond Trustee and — provided the Bonds are listed — representatives of the Relevant Stock Exchange, have the right to attend the Bondholders' Meeting. The chairman may grant access to the meeting to other parties, unless the Bondholders' Meeting decides otherwise. Bondholders may attend by a representative holding proxy. Bondholders have the right to be assisted by an advisor. In case of dispute the chairman shall decide who may attend the Bondholders' Meeting and vote for the Bonds. |
(k) | Representatives of the Issuer have the right to attend the Bondholders' Meeting. The Bondholders' Meeting may resolve that the Issuer's representatives may not participate in particular matters. The Issuer has the right to be present under the voting. |
19.3 | Resolutions passed at Bondholders' Meetings |
(a) | At the Bondholders' Meeting each Bondholder may cast one vote for each Voting Bond owned at close of business on the day prior to the date of the Bondholders' Meeting in accordance with the records registered in the Securities Depository. The Bond Trustee may, at its sole discretion, accept other evidence of ownership. Whoever opens the Bondholders' Meeting shall adjudicate any question concerning which Bonds shall count as the Issuer's Bonds. The Issuer's Bonds shall not have any voting rights. |
(b) | For this purpose, a Bondholder that has a Bond that is nominee registered shall be deemed as the Bondholder of such Bond (instead of the nominee) provided that the Bondholder presents relevant evidence stating that the relevant Bondholder is the Bondholder of the Bond and the amount of Bonds held by such Bondholder. |
(c) | In all matters, the Issuer, the Bond Trustee and any Bondholder have the right to demand vote by ballot. In case of parity of votes, the chairman shall have the deciding vote, regardless of the chairman being a Bondholder or not. |
(d) | In order to form a quorum, at least half (1/2) of the Voting Bonds must be represented at the meeting, see however clause 19.4. Even if less than half (1/2) of the Voting Bonds are represented, the Bondholders' Meeting shall be held and voting completed. |
(e) | Resolutions shall be passed by simple majority of the Voting Bonds represented at the Bondholders' Meeting, unless otherwise set out in clause 19.3(f) |
(f) | A majority of at least 2/3 of the Voting Bonds represented at the Bondholders' Meeting is required for any waiver or amendment of any terms of this Bond Agreement. |
(g) | The Bondholders' Meeting may not adopt resolutions which may give certain Bondholders or others an unreasonable advantage at the expense of other Bondholders. |
(h) | The Bond Trustee shall ensure that resolutions passed at the Bondholders' Meeting are properly implemented, however, the Bond Trustee may refuse to carry out resolutions being in conflict with this Bond Agreement or any applicable law. |
(i) | The Issuer, the Bondholders and the Exchange shall be notified of resolutions passed at the Bondholders' Meeting. |
19.4 | Repeated Bondholders' Meeting |
(a) | If the Bondholders' Meeting does not form a quorum pursuant to clause 19.3(d) a repeated Bondholders' Meeting may be summoned to vote on the same matters. The attendance and the voting result of the first Bondholders' Meeting shall be specified in the summons for the repeated Bondholders' Meeting. |
(b) | A valid resolution may be passed at a repeated Bondholders' Meeting even though less than half (1/2) of the Voting Bonds are represented. |
20 | THE BOND TRUSTEE |
20.1 | The role and authority of the Bond Trustee |
(a) | The Bond Trustee shall monitor the compliance by the Issuer of its obligations under this Bond Agreement and applicable laws and regulations which are relevant to the terms of this Bond Agreement, including supervision of timely and correct payment of principal or interest, (however, this shall not restrict the Bond Trustee from discussing matters of confidentiality with the Issuer), |
(b) | The Bond Trustee may take any step it in its sole discretion considers necessary or advisable to ensure the rights of the Bondholders in all matters pursuant to the terms of this Bond Agreement and is entitled to rely on advice from professional advisors. The Bond Trustee may in its sole discretion postpone taking action until such matter has been put forward to the Bondholders' Meeting. The Bond Trustee is not obliged to take any steps to ascertain whether any Event of Default has occurred and until it has actual knowledge or express notice to the contrary the Bond Trustee is entitled to assume that no Event of Default has occurred. |
(c) | The Bond Trustee may make decisions binding for all Bondholders concerning this Bond Agreement, including amendments to this Bond Agreement and waivers or modifications of certain provisions, which in the opinion of the Bond Trustee, do not materially and adversely affect the rights or interests of the Bondholders pursuant to this Bond Agreement. |
(d) | The Bond Trustee may reach decisions binding for all Bondholders in circumstances other than those mentioned in clause 20.1(c) provided that prior notification has been made to the Bondholders. Such notice shall contain a proposal of the amendment and the Bond Trustee's evaluation. Further, such notification shall state that the Bond Trustee may not reach a decision binding for all Bondholders in the event that any Bondholder submits a written protest against the proposal within a deadline set by the Bond Trustee. Such deadline may not be less than five (5) Business Days following the dispatch of such notification. |
(e) | The Bond Trustee may reach other decisions than set out in clauses 20.1(c) or 20.1(d) to amend or rectify decisions which due to spelling errors, calculation mistakes, misunderstandings or other obvious errors do not have the intended meaning. |
(f) | The Bond Trustee may not adopt resolutions which may give certain Bondholders or others an unreasonable advantage at the expense of other Bondholders. |
(g) | The Issuer, the Bondholders and the Exchange shall be notified of decisions made by the Bond Trustee pursuant to clause 20.1 unless such notice obviously is unnecessary. |
(h) | The Bondholders' Meeting can decide to replace the Bond Trustee without the Issuer's approval, as provided for in clause 19.3(e) |
(i) | The Bond Trustee may act as Bond Trustee and/or security agent for several bond issues relating to the Issuer notwithstanding potential conflicts of interest. The Bond Trustee may delegate exercise of its powers to other professional parties. |
(j) | The Bond Trustee may instruct the Paying Agent to split the Bonds to a lower denomination in order to facilitate partial redemptions or restructuring of the Bonds or other situations. |
20.2 | Liability and indemnity |
(a) | The Bond Trustee is liable only for direct losses incurred by Bondholders or the Issuer as a result of gross negligence or wilful misconduct by the Bond Trustee in performing its functions and duties as set out in this Bond Agreement. Such liability is limited to the amount of convertible Bonds issued as set out in clause 2.3. The Bond Trustee is not liable for the content of information provided to the Bondholders on behalf of the Issuer. |
(b) | The Issuer is liable for, and shall indemnify the Bond Trustee fully in respect of, all losses, expenses and liabilities incurred by the Bond Trustee as a result of negligence by the Issuer (including its |
(c) | The Bond Trustee can as a condition for carrying out an instruction from the Bondholders (including, but not limited to, instructions set out in clause 18.10(b)(i) or 19.2(a)(i) require satisfactory security and indemnities for any possible liability and anticipated costs and expenses, from those Bondholders who requested that instruction and/or those who voted in favour of the decision to instruct the Bond Trustee. Any instructions from the Bondholders may be put forward to the Bondholders' Meeting by the Bond Trustee before the Bond Trustee takes any action. |
20.3 | Change of Bond Trustee |
(a) | Change of Bond Trustee shall be carried out pursuant to the procedures set out in clause 19. The Bond Trustee shall continue to carry out its duties as Bond Trustee until such time that a new Bond Trustee is elected. |
(b) | The fees and expenses of a new Bond Trustee shall be covered by the Issuer pursuant to the terms set out in clause 17, but may be recovered wholly or partially from the Bond Trustee if the change is due to a breach by the Bond Trustee of its duties pursuant to the terms of this Bond Agreement or other circumstances for which the Bond Trustee is liable. |
(c) | The Bond Trustee undertakes to co-operate so that the new Bond Trustee receives without undue delay following the Bondholders' Meeting the documentation and information necessary to perform the functions as set out under the terms of this Bond Agreement. |
21 | MISCELLANEOUS |
21.1 | The community of Bondholders |
(a) | the Bondholders are bound by the terms of this Bond Agreement; |
(b) | the Bond Trustee has power and authority to act on behalf of, and/or represent; the Bondholders, in all matters, included but not limited to taking any legal or other action, including enforcement of the Bond Issue and/or any security, opening of bankruptcy or other insolvency proceedings; |
(c) | the Bond Trustee has, in order to manage the terms of this Bond Agreement, access to the Securities Depository to review ownership of Bonds registered in the Securities Depository; and |
(d) | this Bond Agreement establishes a community between Bondholders meaning that: |
(i) | the Bonds rank pari passu between each other; |
(ii) | the Bondholders may not, based on this Bond Agreement, act directly towards the Issuer and may not themselves institute legal proceedings against the Issuer, however not restricting the Bondholders to exercise their individual rights derived from this Bond Agreement; |
(iii) | the Issuer may not, based on this Bond Agreement, act directly towards the Bondholders; |
(iv) | the Bondholders may not cancel the Bondholders' community; and |
(v) | the individual Bondholder may not resign from the Bondholders' community. |
21.2 | Limitation of claims |
21.3 | Access to information |
(a) | This Bond Agreement is available to anyone and copies may be obtained from the Bond Trustee or the Issuer. The Bond Trustee shall not have any obligation to distribute any other information to the Bondholders or others than explicitly stated in this Bond Agreement. The Issuer shall ensure that a copy of this Bond Agreement is available to the general public until all the Bonds have been fully discharged. |
(b) | The Bond Trustee shall, in order to carry out its functions and obligations under this Bond Agreement, have access to the Securities Depository for the purposes of reviewing ownership of the Bonds registered in the Securities Depository. |
21.4 | Amendments |
21.5 | Notices, contact information |
(a) | Written notices, warnings, summons etc to the Bondholders made by the Bond Trustee shall be sent via the Securities Depository with a copy to the Issuer and the Exchange. Information to the Bondholders may also be published at Stamdata only. Any such notice or communication shall be deemed to be given or made as follows: |
(i) | if by letter via the Securities Depository, when sent from the Securities Depository; and |
(ii) | if by publication on Stamdata, when publicly available. |
(b) | The Issuer's written notifications to the Bondholders shall be sent via the Bond Trustee, alternatively through the Securities Depository with a copy to the Bond Trustee and the Exchange. |
(c) | Unless otherwise specifically provided, all notices or other communications under or in connection with this Bond Agreement between the Bond Trustee and shall be given or made in writing, by letter, e-mail or fax. Any such notice or communication shall be deemed to be given or made as follows: |
(i) | if by letter, when delivered at the address of the relevant Party; |
(ii) | if by e-mail, when received; and |
(iii) | if by fax, when received. |
(d) | The Issuer and the Bond Trustee shall ensure that the other party is kept informed of changes in postal address, e-mail address, telephone and fax numbers and contact persons. |
(e) | When determining deadlines set out in this Bond Agreement, the following shall apply (unless otherwise stated): |
(i) | If the deadline is set out in days, the first day when the deadline is in force shall not be inclusive, however, the meeting day or the occurrence the deadline relates to, shall be included. |
(ii) | If the deadline is set out in weeks, months or years, the deadline shall end on the day in the last week or the last month which, according to its name or number, corresponds to the first day the deadline is in force. If such day is not a part of an actual month, the deadline shall be the last day of such month. |
(iii) | If a deadline ends on a day which is not a Business Day, the deadline is postponed to the next Business Day. |
21.6 | Dispute resolution and legal venue |
(a) | This Bond Agreement and all disputes arising out of, or in connection with this Bond Agreement between the Bond Trustee, the Bondholders and the Issuer, shall be governed by Norwegian law. |
(b) | All disputes arising out of, or in connection with this Bond Agreement between the Bond Trustee, the Bondholders and the Issuer, shall, subject to paragraph (c) below, be exclusively resolved by the courts of Norway, with the District Court of Oslo as sole legal venue. |
(c) | Clause 21.6(b) is for the benefit of the Bond Trustee only. As a result, the Bond Trustee shall not be prevented from taking proceedings relating to a dispute in any other courts with jurisdiction. To the extent allowed by law, the Bond Trustee may take concurrent proceedings in any number of jurisdictions. |
Golden Ocean Group Ltd
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Norsk Tillitsmann ASA
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Issuer
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Bond Trustee
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/s/ Per Heiberg | /s/ Fredrik Lundberg | |
Per Heiberg | Fredrik Lundberg | |
Attorney-in-fact |
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(name in block letters) | (name in block letters) |
1. | all information contained herein is true and accurate and there has been no change which would have a Material Adverse Effect on the financial condition of the Issuer since the date of the last accounts or the last Compliance Certificate submitted to you; |
2. | the covenants set out in clauses 16 are satisfied. |
Name of authorized person
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Enclosure: [copy of any written documentation]
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Clause
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Page
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1.
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DEFINITIONS
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3
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2.
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CONDITIONS PRECEDENT
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3
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3.
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REPRESENTATIONS
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4
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4.
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AMENDMENT
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4
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5.
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MISCELLANEOUS
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5
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6.
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GOVERNING LAW
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5
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(1) | Golden Ocean Group Ltd., a company incorporated under the laws of Bermuda with registration number 36066 (the "Original Issuer"); |
(2) | Knightsbridge Shipping Limited, a company incorporated under the laws of Bermuda with registration number 22353, to be re-named "Golden Ocean Group Limited" (the "New Issuer"); and |
(3) |
Nordic Trustee ASA, a company incorporated under the laws of Norway with company registration number 963 342 624 as the bond trustee on behalf of the Bondholders as defined in the Bond Agreement (the "Bond Trustee"),
collectively referred to as the "Parties".
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(A) | Pursuant to a bond agreement dated 21 January 2014 between the Issuer and the Bond Trustee (the "Bond Agreement"), the Original Issuer issued a series of bonds in the maximum amount of USD 200,000,000 (the "Bonds"). |
(B) | The Original Issuer and the New Issuer have entered into an agreement and plan of merger, pursuant to which the two companies have agreed to merge, with the New Issuer as the surviving entity (the "Merger"). |
(C) | The Parties have entered into this Agreement to reflect the new corporate structure contemplated by the Merger in the Bond Agreement. |
1. | DEFINITIONS |
2. | CONDITIONS PRECEDENT |
3. | REPRESENTATIONS |
(a) | on the date of this Agreement (provided that at the time of making the representations and warranties, neither the implementation of the Merger nor any of the transactions contemplated by the Merger shall give rise to a misrepresentation); and |
(b) | (in respect of the New Issuer Only) on the Effective Date (provided that at the time of making the representations and warranties, neither the implementation of the Merger nor any of the transactions contemplated by the Merger shall give rise to a misrepresentation). |
4. | AMENDMENT |
4.1 | Change of Issuer |
(a) | the Original Issuer shall be replaced by the New Issuer which shall be the issuer under the Bond Agreement and all Finance Documents and which shall bear all commitments and obligations and enjoy all rights thereunder; and |
(b) | the New Issuer shall assume all the obligations previously held by the Original Issuer under the Bond Agreement and the Finance Documents as if it had originally been named as the 'Issuer' therein. |
4.2 | Amendments to definitions |
(a) | From and including the Effective Date, the definition of "Conversion Price" shall be deleted in its entirety and be replaced by the following: |
(b) | From and including the Effective Date, the definition of "Conversion Right" shall be deleted in its entirety and be replaced by the following: |
(c) | From and including the Effective Date, the definition of "Reference Price" shall be deleted in its entirety and be replaced by the following: |
(d) | From and including the Effective Date, the definition of "Shares" shall be deleted in its entirety and be replaced by the following: |
4.3 | Continuing obligations |
5. | MISCELLANEOUS |
5.1 | Incorporation of terms |
5.2 | Additional Finance Document |
5.3 | Invalidity |
6. | GOVERNING LAW |
The Original Issuer:
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Golden Ocean Group Ltd.
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By:
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/s/ Birgitte R. Vartdal
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Name:
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Birgitte R. Vartdal
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Title:
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Attorney-in-fact
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The New Issuer
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Knightsbridge Shipping Limited By:
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By:
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Aage Kr. Østern
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Name:
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Aage Kr. Østern
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Title:
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Attorney-in-fact
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The Bond Trustee
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Nordic Trustee ASA
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By:
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/s/ Morten S. Bredesen
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Name:
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Morten S. Bredesen
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Title:
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1. | In respect of the each of the Original Issuer and the New Issuer: |
(a) | Certificate of Incorporation, Memorandum of Association and Bye-laws; |
(b) | resolutions passed at a board meeting evidencing: |
(i) | the approval of the terms of, and the transactions contemplated by, this Agreement; and |
(ii) | the authorisation of its appropriate officer or officers or other representatives to execute this Agreement on its behalf; |
(c) | unless granted directly by the board pursuant to the resolutions referred to in item (b) above powers of attorney to its representative(s) for the execution of the relevant Finance Documents (as required by lawyers of the Bond Trustee in the relevant jurisdiction). |
2. | Finance Documents |
(a) | Original counterparts of this Agreement duly executed on behalf of the Parties |
(b) | Any other Finance Document. |
3. | Miscellaneous |
(a) | evidence that the Merger is completed; and |
(b) | any other documents as reasonably requested by the Bond Trustee. |
4. | Legal Opinions: |
(a) | Bermudian legal opinion in respect of Bermudan law issues in relation to the Finance Documents; and |
(b) | any such other favourable legal opinions in form and substance satisfactory to the Bond Trustee. |