Exhibit 3.1
Amended
and restated ARTICLES OF
INCORPORATION
OF
Diamond S Shipping
Inc
.
UNDER
SECTIONS 28 AND 93 OF THE MARSHALL ISLANDS BUSINESS
CORPORATIONS
ACT
ARTICLE I
The name of the corporation is Diamond S Shipping
Inc. (the “
Company
”).
ARTICLE II
The address of the Company’s registered
office in the Republic of the Marshall Islands is Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands
MH96960. The name of the Company’s registered agent at such address is The Trust Company of the Marshall Islands, Inc.
ARTICLE III
The purpose of the Company is to engage in any
lawful act or activity for which corporations now or hereinafter may be organized under the Marshall Islands Business Corporations
Act, as amended (the “
BCA
”). The Company shall have every power which a corporation now or hereafter
organized under the BCA may have.
ARTICLE IV
Section 1.
Authorized
Shares
. The Company is authorized to issue two classes of registered capital shares, designated common shares and preferred
shares. The aggregate number of registered shares that the Company is authorized to issue is 110,000,000, consisting of 100,000,000
registered common shares, par value $0.001 per share (“
Common Shares
”), and 10,000,000 registered preferred
shares, par value $0.001 per share (“
Preferred Shares
”).
Section 2.
Preferred
Shares
. The Preferred Shares may be issued in one or more series. The Board of Directors of the Company (the “
Board
”)
is hereby authorized, without any further vote or action by shareholders, to authorize the Company to designate and issue the
Preferred Shares in such series and to fix from time to time before issuance the number of shares to be included in any such series
and the designation, powers, preferences and relative, participating, option or other rights, if any, and the qualifications,
limitations or restrictions of such series. The authority of the Board with respect to each such series will include, without
limitation, the determination of any or all of the following:
(a) the
number of shares of any series and the designation to distinguish the shares of such series from the shares of all other series;
(b) the
voting powers, if any, and whether such voting powers are full or limited in such series;
(c) the
redemption provisions, if any, applicable to such series, including the redemption price or prices to be paid;
(d) whether
dividends, if any, will be cumulative or noncumulative, the dividend rate of such series, and the dates, conditions and preferences
of dividends on such series;
(e) the
rights of such series upon the voluntary or involuntary dissolution of, or upon any distribution of the assets of, the Company;
(f) the
provisions, if any, pursuant to which the shares of such series are convertible into, or exchangeable for, shares of any other
class or classes or any other series of the same or any other class or classes of shares of the Company, at such price or prices
or at such rate or rates of exchange and with such adjustments applicable thereto;
(g) the
right, if any, to subscribe for or to purchase any securities of the Company;
(h) the
provisions, if any, of a sinking fund applicable to such series; and
(i)
any other designations, powers, preferences and relative, participating, optional or other
special rights, and qualifications, limitations or restrictions thereof,
all as may be determined from time to time by the Board and stated
or expressed in the resolution or resolutions providing for the issuance of such Preferred Shares (collectively, a “
Preferred
Stock Designation
”).
Section 3.
Common
Shares
. Subject to the rights of the holders of any series of Preferred Shares, the holders of Common Shares will be entitled
to one vote on each matter submitted to a vote at a meeting of shareholders for each Common Share held of record by such holder
as of the record date for such meeting.
Section 4.
Preemptive
Rights
. Except as otherwise provided in a Preferred Stock Designation, no holder of shares of the Company of any class, now
or hereafter authorized, will have any preferential or preemptive rights to subscribe for, purchase or receive any shares of the
Company of any class, now or hereafter authorized or any options or warrants for such shares, or any rights to subscribe to or
purchase such shares, or any securities convertible into or exchangeable for such shares, which may at any time be issued, sold
or offered for sale by the Company.
Section 5.
Corporate
Existence
. The corporate existence of the Company commenced upon filing of the original Articles of Incorporation, dated as
of November 14, 2018, with the Registrar of Corporations, which is restated and amended in their entirety by these Amended and
Restated Articles of Incorporation (these “
Articles of Incorporation
”
), and will continue indefinitely
until dissolved in accordance with the BCA.
Section 6.
Compliance
with Law
. The corporation will comply with all applicable provisions of the Republic of the Marshall Islands Business Corporations
Act, including retention, maintenance, and production of accounting, shareholder, beneficial owner and director and officer records
in accordance with Division 8 of the Republic of the Marshall Islands Business Corporations Act.
ARTICLE V
The Board may make, adopt, amend and repeal
the bylaws of the Company (each, a “
Bylaw
” and, together, the “
Bylaws
”). Any
Bylaw made or adopted by the Board under the powers conferred hereby may be amended or repealed by the Board (except as specified
in any such Bylaw so made or amended) or by the shareholders in the manner provided in the Bylaws. The Company may in its Bylaws
confer powers upon the Board in addition to the foregoing and in addition to the powers and authorities expressly conferred upon
the Board by applicable law.
ARTICLE VI
Meetings of shareholders may be held within
or outside the Republic of the Marshall Islands, as the Bylaws may provide. At any annual meeting or special meeting of shareholders
of the Company, only such business will be conducted or considered as has been brought before such meeting in the manner provided
in the Bylaws.
ARTICLE VII
Section 1.
Business
and Affairs
. The business and affairs of the Company will be managed under the direction of the Board. In addition to the
powers and authority authorized by these Articles of Incorporation or by law, the Board is hereby empowered to exercise all such
powers and do all such acts and things as may be exercised or done by the Company, subject to the provisions of the BCA, these
Articles of Incorporation and any Bylaws, except that no Bylaws hereafter adopted by the shareholders may invalidate any prior
act of the Board that would have been valid if such Bylaws had not been adopted.
Section 2.
Number,
Election, Terms of Directors and Initial Directors
. Subject to the rights, if any, of the holders of any series of Preferred
Shares to elect additional directors as provided in a Preferred Stock Designation, the number of the directors of the Company
will not be fewer than three nor more than 15 and will be fixed from time to time in the manner provided in the Bylaws. Except
as provided in a Preferred Stock Designation, directors may only be elected by the shareholders of the Company at an annual meeting
and then only if nominated in accordance with the Bylaws. Election of directors of the Company need not be by written ballot unless
requested by the Chairman of the Board or by the holders of a majority of the Voting Shares present in person or represented by
proxy at a meeting of the shareholders at which directors are to be elected. If authorized by the Board, such requirement of written
ballot will be satisfied by a ballot submitted by electronic transmission, provided that any such electronic transmission must
either set forth or be submitted with information from which it can be determined that the electronic transmission was authorized
by the shareholder or proxy holder. Cumulative voting, as defined in Section 71(2) of the BCA, will not be used to elect directors
of the Company.
Section 3.
Nomination
of Director Candidates
. Advance notice of shareholder nominations for the election of directors must be given in the manner
provided in the Bylaws.
Section 4.
Newly
Created Directorships and Vacancies
. Subject to the rights, if any, of the holders of any series of Preferred Shares to elect
additional directors under circumstances specified in a Preferred Stock Designation, newly created directorships resulting from
any increase in the authorized number of directors and any vacancies on the Board resulting from death, resignation, disqualification,
removal or other cause may be filled by the affirmative vote of a majority of the remaining directors then in office, even though
less than a quorum of the Board, or by a sole remaining director. Any director elected in accordance with the preceding sentence
will hold office for the remainder of the term in which the new directorship was created or the vacancy occurred and until such
director’s successor has been elected and qualified. No decrease in the number of directors constituting the Board may shorten
the term of any incumbent director.
Section 5.
Removal
.
Subject to the rights, if any, of the holders of any series of Preferred Shares to elect additional directors under circumstances
specified in a Preferred Stock Designation, any director may be removed from office only by the shareholders only for cause or
pursuant to a plan of merger, consolidation or reorganization approved by shareholders.
ARTICLE VIII
To the full extent permitted by the BCA or any
other applicable law currently or hereafter in effect, no director of the Company will be personally liable to the Company or its
shareholders for or with respect to any acts or omissions in the performance of his or her duties as a director of the Company.
Any repeal or modification of this
Article VIII
may not adversely affect any right or protection of a director of the Company
existing prior to such repeal or modification.
ARTICLE IX
Section 1.
Right
to Indemnification
. Each person who was or is a party or is threatened to be made a party to or is otherwise involved in any
threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “
Proceeding
”),
by reason of the fact that the person is or was a director or an officer of the Company, or is or was serving at the request of
the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan (an “
Indemnitee
”), whether the basis of such
Proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while
serving as a director, officer, employee or agent, will be indemnified and held harmless by the Company to the fullest extent
permitted or required by the BCA, as the same exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company
to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines,
excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such Indemnitee in connection therewith;
provided
,
however
, that, except as provided in
Section 3
of this
Article IX
with respect to Proceedings
to enforce rights to indemnification, the Company will indemnify any such Indemnitee in connection with a Proceeding (or part
thereof) initiated by such Indemnitee only if such Proceeding (or part thereof) was authorized by the Board.
Section 2.
Right
to Advancement of Expenses
. The right to indemnification conferred in
Section 1
of this
Article IX
includes
the right to be paid by the Company the expenses (including, without limitation, attorneys’ fees and expenses) incurred
in defending any such Proceeding in advance of its final disposition (an “
Advancement of Expenses
”);
provided
,
however
, that, if the BCA so requires, an Advancement of Expenses incurred by an Indemnitee in such person’s
capacity as a director or officer (and not in any other capacity in which service was or is rendered by such Indemnitee, including,
without limitation, service to an employee benefit plan) will be made only upon delivery to the Company of an undertaking (an
“
Undertaking
”), by or on behalf of such Indemnitee, to repay all amounts so advanced if it is ultimately
determined by final judicial decision from which there is no further right to appeal (a “
Final Adjudication
”)
that such Indemnitee is not entitled to be indemnified for such expenses under this
Section 2
or otherwise. The rights
to indemnification and to the Advancement of Expenses conferred in
Sections 1
and
2
of this
Article IX
will
be contractual rights and such rights will continue as to an Indemnitee who has ceased to be a director, officer, employee or
agent and will inure to the benefit of the Indemnitee’s heirs, executors and administrators.
Section 3.
Right
of Indemnitee To Bring Suit
. If a claim under
Section 1
or
2
of this
Article IX
is not paid in full by
the Company within 60 calendar days after a written claim has been received by the Company, except in the case of a claim for
an Advancement of Expenses, in which case the applicable period will be 20 calendar days, the Indemnitee may at any time thereafter
bring suit against the Company to recover the unpaid amount of the claim. If successful in whole or in part in any such suit,
or in a suit brought by the Company to recover an Advancement of Expenses pursuant to the terms of an Undertaking, the Indemnitee
will be entitled to be paid also the expense of prosecuting or defending such suit. In (a) any suit brought by the Indemnitee
to enforce a right to indemnification hereunder (but not in a suit brought by the Indemnitee to enforce a right to an Advancement
of Expenses) it will be a defense, and (b) any suit brought by the Company to recover an Advancement of Expenses pursuant to the
terms of an Undertaking, the Company is entitled to recover such expenses upon a Final Adjudication, that the Indemnitee has not
met any applicable standard for indemnification set forth in the BCA. Neither the failure of the Company (including the Board,
a Board committee or the Company’s independent legal counsel or shareholders) to have made a determination prior to the
commencement of such suit that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met
the applicable standard of conduct set forth in the BCA, nor an actual determination by the Company (including the Board, a Board
committee, or the Company’s independent legal counsel or shareholders) that the Indemnitee has not met such applicable standard
of conduct, will create a presumption that the Indemnitee has not met the applicable standard of conduct or, in the case of such
a suit brought by the Indemnitee, be a defense to such suit. In any suit brought by the Indemnitee to enforce a right to indemnification
or to an Advancement of Expenses hereunder, or brought by the Company to recover an Advancement of Expenses pursuant to the terms
of an Undertaking, the burden of proving that the Indemnitee is not entitled to be indemnified, or to such Advancement of Expenses,
under this
Article IX
or otherwise will be on the Company.
Section 4.
Non-Exclusivity
of Rights
. The rights to indemnification and to the Advancement of Expenses conferred in this
Article IX
will not be
exclusive of any other right that any person may have or hereafter acquire under any statute, the Company’s Articles of
Incorporation, Bylaws, any agreement, vote of shareholders or disinterested directors or otherwise.
Section 5.
Insurance
.
The Company may maintain insurance, at its expense, to protect itself and any person who is or was a director, officer, employee
or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred
by such person in any such capacity, or arising out of such person’s status as such, whether or not the Company would have
the power to indemnify such person against such liability under the BCA.
Section 6.
Indemnification
of Employees and Agents of the Company
. The Company may, to the extent authorized from time to time by agreement, grant rights
to indemnification, contribution and to the Advancement of Expenses to any employee, underwriter or agent of the Company to the
extent set forth in such agreement whether or not subject to the provisions of this
Article IX
with respect to the indemnification
and Advancement of Expenses of directors and officers of the Company.
ARTICLE X
Section 1.
Competition
and Corporate Opportunities; Renouncement
. No non-employee director (including any non-employee director who serves as an
officer of the Company in both his or her director and officer capacities) or his or her Affiliates (each an “
Identified
Person
” and, collectively, as “
Identified Persons
”) will have any duty to refrain from
directly or indirectly (1) engaging in the same or similar business activities or lines of business in which the Company
or any of its Affiliates now engages or proposes to engage or (2) otherwise competing with the Company or any of its Affiliates
and no Identified Person will be liable to the Company or its shareholders or to any Affiliate of the Company for breach of any
fiduciary duty solely by reason of the fact that such Identified Person engages in any such activities. The Company hereby renounces
any interest or expectancy in, or right to be offered an opportunity to participate in, any business opportunity which may be
a corporate opportunity for an Identified Person and the Company or any of its Affiliates, except as provided in Section 3
of this Article X. Subject to Section 3 of this Article X, in the event that any Identified Person acquires knowledge
of a potential transaction or other business opportunity which may be a corporate opportunity for itself, herself or himself and
the Company or any of its Affiliates, such Identified Person will have no duty to communicate or offer such transaction or other
business opportunity to the Company or any of its Affiliates and will not be liable to the Company or its shareholders or to any
Affiliate of the Company for breach of any fiduciary duty as a shareholder, director or officer of the Company solely by reason
of the fact that such Identified Person pursues or acquires such corporate opportunity for itself, herself or himself, or offers
or directs such corporate opportunity to another Person.
Section 2.
Allocation
of Corporate Opportunities
. The Company does not renounce its interest in any corporate opportunity offered to any non-employee
director (including any non-employee director who serves as an officer of this Company) if such opportunity is expressly offered
to such person solely in his or her capacity as a director or officer of the Company, and the provisions of
Section 1
of this
Article X
will not apply to any such corporate opportunity.
Section 3.
Certain
Matters Deemed Not Corporate Opportunities
. In addition to and notwithstanding the foregoing provisions of this
Article
X
, a corporate opportunity will not be deemed to be a potential corporate opportunity for the Company if it is a business
opportunity that (i) the Company is neither financially or legally able, nor contractually permitted to undertake, (ii) from its
nature, is not in the energy shipping business or is of no practical advantage to the Company, or (iii) is one in which the Company
has no interest or reasonable expectancy.
Section 4.
Certain
Definitions
. For purposes of this
Article X
, (i) “
Affiliate
” means, with respect to a specified
Person (a) any Person that, directly or indirectly, is controlled by the specified Person, controls the specified Person
or is under common control with the specified Person and includes any principal, member, director, partner, shareholder, officer,
employee or other representative of any of the foregoing (other than the Company and any entity that is controlled by the Company),
(b) in respect of a non-employee director, any Person that, directly or indirectly, is controlled by such non-employee director
(other than the Company and any entity that is controlled by the Company), and (c) in respect of the Company, any Person
that, directly or indirectly, is controlled by the Company and (ii) “
Person
” means any individual,
corporation, general or limited partnership, limited liability company, joint venture, trust, association or any other entity.
Section 5.
Notice
of this Article
. Any Person purchasing or otherwise acquiring any interest in any shares of the Company will be deemed to
have notice of and to have consented to the provisions of this
Article X
.
ARTICLE XI
If any provision (or any part thereof) of these
Articles of Incorporation is be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever:
(i) the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of these
Articles of Incorporation (including each portion of any section of these Articles of Incorporation containing any such provision
held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) will not in any way
be affected or impaired thereby and (ii) to the fullest extent possible, the provisions of these Articles of Incorporation (including
each such portion of any section containing any such provision held to be invalid, illegal or unenforceable) will be construed
so as to permit the Company to protect its directors, officers, employees and agents from personal liability in respect of their
good faith service or for the benefit of the Company to the fullest extent permitted by law.
Exhibit 3.2
DIAMOND S SHIPPING INC.
AMENDED AND RESTATED BYLAWS
As Adopted on March 17, 2019
SHAREHOLDERS
MEETINGS
1.
Time
and Place of Meetings
. All meetings of shareholders will be held at such time and place, within or outside of the Republic
of the Marshall Islands, as may be designated by the Board of Directors (the “
Board
”) of Diamond S Shipping
Inc., a Republic of the Marshall Islands corporation (the “
Company
”), from time to time or, in the absence
of a designation by the Board, by the Chairman of the Board (the “
Chairman
”), the Chief Executive Officer
of the Company (the “
Chief Executive Officer
”) or the Secretary of the Company (the “
Secretary
”)
and stated in the notice of the meeting (“
Notice
”). The Board may postpone and reschedule any previously
scheduled annual or special meeting of shareholders.
2.
Annual
Meetings
. At each annual meeting of shareholders, the shareholders will (a) elect, by a plurality of the votes of the shares
present in person or represented by proxy at such meeting and entitled to vote on the election of directors, the directors and
(b) transact such other business as may properly be brought before the meeting in accordance with
Bylaws 8
,
9
,
10
and
11
.
3.
Special
Meetings
. A special meeting of shareholders may be called only (a) by (i) the Chairman, (ii) the Chief Executive
Officer, or (iii) the Secretary within 10 calendar days after receipt by the Chairman and the Secretary of the written request
of the Board or the holders of more than ten percent of the voting power of the outstanding common shares, par value $0.001 per
share (“
Common Shares
”), and preferred shares, par value $0.001 per share (“
Preferred Shares
”),
of the Company or (b) as specified in a Preferred Stock Designation (as defined in the Company’s Articles of Incorporation).
4.
Notice
of Meetings
. Written notice of every meeting of shareholders, stating the place, date and time thereof by which shareholders
and proxy holders may be deemed to be present in person and vote at such meeting and, in the case of a special meeting, the purpose
or purposes for which the meeting is called and that it is being issued by or at the direction of the person calling the meeting,
will be given, in a form provided by
Bylaw 27
or by the Marshall Islands Business Corporations Act, as amended (the “
BCA
”),
not fewer than 15 nor more than 60 calendar days before the date of the meeting to each shareholder of record entitled to vote
at such meeting, except as otherwise provided by law. When a meeting is adjourned to another place, date or time, Notice need not
be given of the adjourned meeting if the place, date and time thereof by which shareholders and proxy holders may be deemed to
be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken;
provided
,
however
, that if the adjournment is for more than 30 calendar days, the adjournment is for lack of quorum, or if after
the adjournment a new record date is fixed for the adjourned meeting, written Notice of the place, date and time thereof by which
shareholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting must be given in conformity
herewith. At any adjourned meeting, any business may be transacted which properly could have been transacted at the original meeting.
5.
Inspectors
.
The Board may, in advance of any meeting of shareholders, appoint one or more inspectors to act at the meeting and make a written
report thereof. The Board may designate one or more persons as alternate inspectors to replace any inspector who fails to act.
If no inspector or alternate is able to act at a meeting of shareholders, the presiding officer of the meeting may appoint one
or more inspectors to act at the meeting. Inspectors may be employees of the Company or any of its subsidiaries.
6.
Quorum
.
Except as otherwise provided by law or in a Preferred Stock Designation, the holders of a majority of the shares issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, will constitute a quorum at a meeting of shareholders
for the transaction of business thereat. If, however, such quorum is not present or represented at any meeting of shareholders,
the shareholders entitled to vote thereat, present in person or represented by proxy, will have the power to adjourn the meeting
7.
Voting;
Proxies
. Except as otherwise provided by law, by the Company’s Articles of Incorporation or in a Preferred Stock Designation,
each shareholder will be entitled at every meeting of the shareholders to one vote for each share having voting power standing
in the name of such shareholder on the books of the Company on the record date for the meeting and such votes may be cast either
in person or by proxy. When a quorum is present at any meeting of shareholders, the affirmative vote of a majority of the votes
cast by holders of shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter will
be the act of the shareholders in all matters other than the election of directors, or as otherwise provided in these Bylaws, the
Articles of Incorporation, a Preferred Stock Designation or by law.
8.
Order
of Business
. The Chairman, or an officer of the Company designated from time to time by the Board, will call meetings of shareholders
to order and will act as presiding officer thereof. Unless otherwise determined by the Board prior to the meeting, the presiding
officer of the meeting of shareholders will also determine the order of business and have the authority in his or her sole discretion
to determine the rules of procedure and regulate the conduct of any such meeting, including by imposing restrictions on the persons
(other than shareholders of the Company or their duly appointed proxy holders) that may attend any such shareholders’ meeting,
by ascertaining whether any shareholder or his or her proxy holder may be excluded from any meeting of shareholders based upon
any determination by the presiding officer, in his or her sole discretion, that any such person has disrupted or is likely to disrupt
the proceedings thereat, by determining the circumstances in which any person may make a statement or ask questions at any meeting
of shareholders, by ruling on all procedural questions that may arise during or in connection with the meeting and by determining
whether any nomination or business proposed to be brought before the meeting has been properly brought before the meeting.
9.
Notice
of Shareholder Proposals
. (a)
Business to Be Conducted at Annual Meeting
. At an annual meeting of shareholders, only
such business may be conducted as has been properly brought before the meeting. To be properly brought before an annual meeting,
business (other than the nomination of a person for election as a director, which is governed by
Bylaw 10
and, to the extent
applicable,
Bylaw 11
) must be (i) brought before the meeting by or at the direction of the Board or (ii) otherwise
properly brought before the meeting by a shareholder who (A) has complied with all applicable requirements of this
Bylaw 9
and
Bylaw 11
in relation to such business, (B) was a shareholder of record of the Company at the time of giving the notice
required by
Bylaw 11(a)
and is a shareholder of record of the Company at the time of the annual meeting, (C) is entitled
to vote at the annual meeting, (D) beneficially owns (as such term is defined in the SEC Rule 13d-3) at least ten percent
of the then outstanding Common Shares, or (E) is authorized to bring such matter before the meeting pursuant to a Preferred
Stock Designation. For the avoidance of doubt, the foregoing clause (ii) will be the exclusive means for a shareholder to submit
business before an annual meeting of shareholders (other than proposals properly made in accordance with Rule 14a-8 under the Securities
Exchange Act of 1934, as amended (such act, and the rules and regulations promulgated thereunder, the “
Exchange Act
”)
and included in the notice of meeting given by or at the direction of the Board).
(b)
Required
Form for Shareholder Proposals
. To be in proper written form, a shareholder’s notice to the Secretary must set forth:
(i)
Information
Regarding the Proposing Person
. As to each Proposing Person (as such term is defined in
Bylaw 11(d)(ii)
):
(A) the
name and address of such Proposing Person, as they appear on the Company’s share transfer book;
(B) the
class, series and number of shares of the Company beneficially owned or of record by such Proposing Person (including any shares
of any class or series of the Company as to which such Proposing Person has a right to acquire beneficial ownership, whether such
right is exercisable immediately or only after the passage of time);
(C) a
representation (1) that the shareholder giving the notice is a holder of record of shares of the Company entitled to vote at the
annual meeting and intends to appear in person or by proxy at the annual meeting to bring such business before the annual meeting
and (2) as to whether any Proposing Person intends to deliver a proxy statement and form of proxy to holders of at least the percentage
of shares of the Company entitled to vote and required to approve the proposal and, if so, identifying such Proposing Person;
(D) a
description of any (1) option, warrant, convertible security, share appreciation right or similar right (including any derivative
securities, as defined under Rule 16a-1 under the Exchange Act), whether or not presently exercisable, with an exercise or conversion
privilege or a settlement payment or mechanism at a price related to any class or series of securities of the Company or with a
value derived in whole or in part from the value of any class or series of securities of the Company, whether or not such instrument
or right is subject to settlement in whole or in part in the underlying class or series of securities of the Company or otherwise,
directly or indirectly held of record or owned beneficially by such Proposing Person and (2) each other direct or indirect opportunity
of such Proposing Person to profit or share in any profit derived from, or to manage the risk or benefit from, any increase or
decrease in the value of the Company’s securities, in each case regardless of whether (x) such interest conveys any voting
rights in such security to such Proposing Person, (y) such interest is required to be, or is capable of being, settled through
delivery of such security, or (z) such Proposing Person may have entered into other transactions that hedge the economic effect
of any such interest (any such interest referred to in this clause (D), being a “
Derivative Interest
”);
(E) any
proxy, contract, arrangement, understanding or relationship pursuant to which the Proposing Person has a right to vote any shares
of the Company or which has the effect of increasing or decreasing the voting power of such Proposing Person;
(F) any
rights directly or indirectly held of record or beneficially by the Proposing Person to dividends on the shares of the Company
that are separated or separable from the underlying shares of the Company;
(G) any
performance-related fees (other than an asset-based fee) to which the Proposing Person may be entitled as a result of any increase
or decrease in the value of shares of the Company or Derivative Interests; and
(H) any
other information relating to such Proposing Person that would be required to be disclosed in a proxy statement or other filing
required pursuant to Section 14(a) of the Exchange Act to be made in connection with a general solicitation of proxies or consents
by such Proposing Person in support of the business proposed to be brought before the meeting.
(ii)
Information
Regarding the Proposal
: As to each item of business that the shareholder giving the notice proposes to bring before the annual
meeting:
(A) a
description in reasonable detail of the business desired to be brought before the annual meeting and the reasons why such shareholder
or any other Proposing Person believes that the taking of the action or actions proposed to be taken would be in the best interests
of the Company and its shareholders;
(B) a
description in reasonable detail of any material interest of any Proposing Person in such business and a description in reasonable
detail of all agreements, arrangements and understandings among the Proposing Persons or between any Proposing Person and any other
person or entity in connection with the proposal; and
(C) the
text of the proposal or business (including the text of any resolutions proposed for consideration).
(c) A
shareholder is not entitled to have its proposal included in the Company’s proxy statement and form of proxy solely as a
result of such shareholder’s compliance with the foregoing provisions of this
Bylaw 9
.
(d) If
a shareholder does not appear at the annual meeting to present its proposal, such proposed business will not be transacted (notwithstanding
that proxies in respect of such vote may have been received by the Company).
10.
Notice
of Director Nominations
. (a)
Nomination of Directors
. Subject to the rights, if any, of any series of Preferred Shares
to nominate or elect directors under circumstances specified in a Preferred Stock Designation, only persons who are nominated in
accordance with the procedures set forth in this
Bylaw 10
will be eligible to serve as directors. Nominations of persons
for election as directors of the Company may be made only at an annual meeting of shareholders (i) by or at the direction
of the Board or (ii) by a shareholder who (A) has complied with all applicable requirements of this
Bylaw 10
and
Bylaw
11
in relation to such nomination, (B) was a shareholder of record of the Company at the time of giving the notice required
by
Bylaw 11(a)
and is a shareholder of record of the Company at the time of the annual meeting, and (C) is entitled
to vote at the annual meeting.
(b)
Required
Form for Shareholder Nominations
. To be in proper written form, a shareholder’s notice to the Secretary must set forth:
(i)
Information
Regarding the Proposing Person
. As to each Nominating Person (as such term is defined in
Bylaw 11(d)(iii))
, the information
set forth in
Bylaw 9(b)(i)
(except that for purposes of this
Bylaw 10
, the term “Nominating Person” will
be substituted for the term “Proposing Person” in all places it appears in
Bylaw 9(b)(i)
and any reference to
“business” or “proposal” therein will be deemed to be a reference to the “nomination” contemplated
by this
Bylaw 10
).
(ii)
Information
Regarding the Nominee
: As to each person whom the shareholder giving notice proposes to nominate for election as a director:
(A) all
information with respect to such proposed nominee that would be required to be set forth in a shareholder’s notice pursuant
to
Bylaw 9(b)(i)
if such proposed nominee were a Nominating Person;
(B) all
information relating to such proposed nominee that would be required to be disclosed in a proxy statement or other filing required
pursuant to Section 14(a) under the Exchange Act to be made in connection with a general solicitation of proxies for an election
of directors in a contested election (including such proposed nominee’s written consent to be named in the proxy statement
as a nominee and to serve as a director if elected);
(C) all
information that would be required to be disclosed pursuant to Items 403 and 404 under Regulation S-K if the shareholder giving
the notice or any other Nominating Person were the “registrant” for purposes of such rule and the proposed nominee
were a director or executive officer of such registrant;
(D) a
written questionnaire with respect to the identity, background and qualification of the proposed nominee and the background of
any other person or entity on whose behalf the nomination is being made (which questionnaire will be provided by the Secretary
upon written request);
(E) a
written representation and agreement (in the form provided by the Secretary upon written request) that the proposed nominee (1)
is not and will not become a party to (x) any agreement, arrangement or understanding with, and has not given any commitment or
assurance to, any person or entity as to how the proposed nominee, if elected as a director of the Company, will act or vote on
any issue or question (a “
Voting Commitment
”) that has not been disclosed to the Company or (y) any Voting
Commitment that could limit or interfere with the proposed nominee’s ability to comply, if elected as a director of the Company,
with the proposed nominee’s fiduciary duties under applicable law, (2) is not and will not become a party to any agreement,
arrangement or understanding with any person or entity other than the Company with respect to any direct or indirect compensation,
reimbursement or indemnification in connection with service or action as a director that has not been disclosed therein or is not
otherwise disclosed to, and approved by, the Company prior to entering into such agreement, arrangement or understanding, and (3)
if elected as a director of the Company, the proposed nominee would be in compliance, and will comply, with all applicable publicly
disclosed corporate governance, conflict of interest, confidentiality and share ownership and trading policies and guidelines of
the Company.
The Company may require any proposed nominee to furnish such other
information as the Board determines in good faith may be reasonably required by the Company to determine the qualifications and
eligibility of such proposed nominee to serve as a director.
(c) A
shareholder is not entitled to have its nominees included in the Company’s proxy statement solely as a result of such shareholder’s
compliance with the foregoing provisions of this
Bylaw 10
.
(d) Notwithstanding
the foregoing, at each annual meeting of shareholders until the annual meeting of shareholders held in 2024, (i) the number
of directors will be fixed at seven, (ii) unless the Board or a duly authorized committee of the Board determines in good
faith (A) that such individual nominated would not be qualified under applicable law, rule or regulation to serve as a director
of the Company or (B) after consultation with outside counsel, that so doing would be inconsistent with its fiduciary duties under
applicable law or violate applicable law, the Board or such committee will include in its nominees for election by the shareholders
three individuals nominated by Former DSS Holders (or such lesser number of nominees designated by Former DSS Holders) and two
individuals nominated by Former Citadel Holders (or such lesser number of nominees designated by Former Citadel Holders). Notwithstanding
the foregoing, if the Former Citadel Holders reduce their aggregate beneficial ownership (as defined in the SEC Rule 13d-3)
(A) by 25% or more but less than 50% from that owned by the Former Citadel Holders as at the closing of the transactions contemplated
by the Transaction Agreement (the “
Closing
”), they will, without further action, only be entitled to
nominate one individual and (B) by 50% or more from that owned by the Former Citadel Holders as at the Closing, they will, without
further action, no longer have any nomination rights hereunder. Furthermore, notwithstanding the foregoing, if the Former DSS Holders
reduce their aggregate beneficial ownership (as defined in the SEC Rule 13d-3) (A) by 50% or more but less than 75% from that owned
by such Former DSS Holders as at the Closing, they will, without further action, only be entitled to designate two individuals,
(B) by 75% or more from that owned by such Former DSS Holders at the Closing, they will, as long as WLR or FRC continues to own
at least five percent of the then outstanding Common Shares, without further action, only be entitled to designate one individual,
and (C) by an amount sufficient to cause each of WLR and FRC to no longer own at least five percent of the then outstanding Common
Shares, they will, without further action, no longer have any nomination rights hereunder.
11.
Additional
Provisions Relating to the Notice of Shareholder Business and Director Nominations
. (a)
Timely Notice
. To be timely,
a shareholder’s notice required by
Bylaw 9
or
Bylaw 10
must be delivered to or mailed and received by the Secretary
at the principal executive offices of the Company not fewer than 90 nor more than 120 calendar days prior to the anniversary of
the date on which the Company held the preceding year’s annual meeting of shareholders;
provided
,
however
,
that if the date of the annual meeting is advanced more than 30 calendar days prior to or delayed by more than 30 calendar days
after the anniversary of the preceding year’s annual meeting, notice by the shareholder to be timely must be so delivered
not later than the close of business on the later of the 90th calendar day prior to such annual meeting and the 10th calendar day
following the day on which public disclosure of the date of such meeting is first made.
(b)
Updating
Information in Notice
. A shareholder providing notice of business proposed to be brought before an annual meeting pursuant
to
Bylaw 9
or notice of any nomination to be made at an annual meeting pursuant to
Bylaw 10
must further update and
supplement such notice, if necessary, so that the information provided or required to be provided in such notice pursuant to
Bylaw
9
or
Bylaw 10
, as applicable, is true and correct at all times up to and including the date of the meeting and any adjournment
or postponement thereof. Such update and supplement will be delivered to, or mailed and received by, the Secretary at the principal
executive offices of the Company, (i) in the case of the update and supplement required to be made as of the record date, not later
than the later of five business days after the record date for the meeting and five business days after the first public disclosure
of the record date for the meeting and (ii) in the case of the update and supplement required to be made as of 10 business days
prior to the meeting or any adjournment or postponement thereof, not later than eight business days prior to the date for the meeting,
if practicable (or, if not practicable, on the first practicable date prior to any adjournment or postponement thereof).
(c)
Determinations
of Form, Etc.
The presiding officer of any annual meeting will, if the facts warrant, determine that a proposal was not made
in accordance with the procedures prescribed by
Bylaw 9
and this
Bylaw 11
or that a nomination was not made in accordance
with the procedures prescribed by
Bylaw 10
and this
Bylaw 11
, and if he or she should so determine, he or she will
so declare to the meeting and the defective proposal or nomination, as applicable, will be disregarded. If the Proposing Person
or Nominating Person, as applicable, does not appear at the annual meeting to present its proposal or nomination, as applicable,
such proposed business will not be transacted (notwithstanding that proxies in respect of such vote may have been received by the
Company) and such nomination will be disregarded, respectively.
(d)
Certain
Definitions
. For purposes of these Bylaws:
(i) “
Affiliate
”
of a person or entity means any person or entity who or which controls, is controlled by or is under common control with the first
person or entity and “
control
” means the power to direct the action or polices of a person or entity,
whether by ownership, contract, or by law.
(ii) “
Former
Citadel Holders
” means Capital Maritime & Trading Corp., Capital GP L.L.C., Crude Carriers Investments Corp.
(collectively, the “
Current Holders
”) and/or their respective Affiliates and/or any other company under
the beneficial ownership or control of either (i) the persons owning or controlling any of the Current Holders (collectively, the
“
UBOs
”) or (ii) any of the UBOs’ lineal descendants in direct line or spouse or former spouse or
widow (either directly and/or through companies, trusts or foundations of which such persons are beneficiaries and/or through a
similar structure achieving a comparable result).
(iii) “
Former
DSS Holders
” means WL Ross & Co. and its controlled Affiliates or successors by operation of law (collectively,
“
WLR
”) or First Reserve Corporation and its controlled Affiliates or successors by operation of law (collectively,
“
FRC
”),
provided
,
however
, that if WLR and FRC submit more than three nominees for election
to the Board pursuant to
Bylaw 10(c)
, the nominees for election to the Board will be as agreed to by WLR and FRC within
ten days of the last such nomination or, absent agreement, as determined in good faith by the Board or a duly authorized committee
thereof.
(iv) “
Nominating
Person
” means (A) the shareholder providing the notice of the nomination proposed to be made at an annual meeting,
(B) the beneficial owner or beneficial owners, if different, on whose behalf the notice of nomination proposed to be made at the
annual meeting is made, and (C) any Affiliate or Associate (each within the meaning of Rule 12b-2 under the Exchange Act) of such
shareholder or beneficial owner.
(v) “
Proposing
Person
” means (A) the shareholder providing the notice of business proposed to be brought before an annual meeting,
(B) the beneficial owner or beneficial owners, if different, on whose behalf the notice of the business proposed to be brought
before the annual meeting is made, and (C) any Affiliate or Associate (each within the meaning of Rule 12b-2 under the
Exchange Act) of such shareholder or beneficial owner.
(vi) “
Public
Disclosure
” means disclosure in a press release reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document filed by the Company with the Securities and Exchange Commission pursuant to
Exchange Act or furnished by the Company to shareholders.
(vii) “
Transaction
Agreement
” means that certain Transaction Agreement dated November 27, 2018, among DSS Holdings L.P., Capital Product
Partners L.P. and the other parties named therein.
12.
Record
Dates
. (a) In order that the Company may determine the shareholders entitled to notice of or to vote at any meeting of shareholders
or any adjournment thereof, the Board may fix in advance a record date, which may not be more than 60 nor fewer than 15 calendar
days before the date of such meeting. If no record date is fixed by the Board, the record date for determining shareholders entitled
to notice of or to vote at a meeting of shareholders will be at the close of business on the calendar day preceding the day on
which notice is given, or, if notice is waived, at the close of business on the calendar day preceding the day on which the meeting
is held. A determination of shareholders of record entitled to notice of or to vote at a meeting of the shareholders will apply
to any adjournment of the meeting;
provided
,
however
, that the Board may fix a new record date for the adjourned
meeting.
(b) In
order that the Company may determine the shareholders entitled to receive payment of any dividend or other distribution or allotment
of any rights or the shareholders entitled to exercise any rights in respect of any change, conversion or exchange of shares, or
for the purpose of any other lawful action, the Board may fix a record date, which record date will not be more than 60 calendar
days prior to such action. If no record date is fixed, the record date for determining shareholders for any such purpose will be
at the close of business on the calendar day on which the Board adopts the resolution relating thereto.
(c) The
Company will be entitled to treat the person in whose name any of its shares is registered as the owner thereof for all purposes,
and will not be bound to recognize any equitable or other claim to, or interest in, such share on the part of any other person,
whether or not the Company has notice thereof, except as expressly provided by applicable law.
13.
Adjournments
.
A meeting of shareholders may be adjourned from time to time by the presiding officer of the meeting or the holders of a majority
of the shares present in person or represented by proxy at such meeting.
DIRECTORS
14.
Number,
Election and Terms
. Subject to the rights, if any, of any series of Preferred Shares to elect additional directors under circumstances
specified in a Preferred Stock Designation, the number of directors will be seven. All directors will be elected annually.
15.
Chairman
.
The Chairman will be elected by the Board, and will not have any additional voting rights in addition to those the Chairman has
as a director.
16.
Vacancies
and Newly Created Directorships
. Subject to the rights, if any, of the holders of any series of Preferred Shares to elect additional
directors under circumstances specified in a Preferred Stock Designation, newly created directorships resulting from any increase
in the authorized number of directors and any vacancies on the Board resulting from death, resignation, disqualification, removal
or other cause may be filled only by the affirmative vote of a majority of the remaining directors then in office, even though
less than a quorum of the Board, or by a sole remaining director. No decrease in the authorized number of directors will shorten
the term of any incumbent director.
17.
Removal
.
Subject to the rights, if any, of the holders of any series of Preferred Shares specified in a Preferred Stock Designation, any
director may be removed from office by the shareholders only in the manner provided in the Articles of Incorporation.
18.
Resignation
.
Any director may resign at any time upon notice given in writing or by electronic transmission to the Chairman, the Secretary,
any Vice President or the Company’s regular outside counsel. Any resignation is effective when the resignation is so delivered
unless the resignation specified a later effective date or an effective date determined upon the happening of an event or events.
19.
Regular
Meetings
. Regular meetings of the Board will be held immediately after the annual meeting of the shareholders and at such other
times and places either within or outside of the Republic of the Marshall Islands as may from time to time be determined by
the Board. Notice of regular meetings of the Board need not be given.
20.
Special
Meetings
. Special meetings of the Board may be called by the Chairman or the Chief Executive Officer on two business days’
prior notice to each director by whom such notice is not waived, given in a form permitted by
Bylaw 27
or by the BCA, and
will be called by the Chairman or the Chief Executive Officer, in like manner and on like notice, on the written request of the
Board. Special meetings of the Board may be held at such time and place either within or outside of the Republic of the Marshall
Islands as is determined by the Board or specified in the notice of any such meeting.
21.
Quorum
.
At all meetings of the Board, a majority of the Board will constitute a quorum for the transaction of business. The act of a majority
of the directors present at any meeting at which there is a quorum will be the act of the Board. If a quorum is not present at
any meeting of the Board, the directors present thereat may adjourn the meeting from time to time to another place, time, or date,
without notice other than announcement at the meeting, until a quorum is present.
22.
Participation
in Meetings by Electronic Communications
. Members of the Board or any committee designated by the Board may participate in
a meeting of the Board or any such committee, as the case may be, by means of conference telephone or other communications equipment
by means of which all persons participating in the meeting can communicate with each other, and such participation in a meeting
will constitute presence in person at the meeting.
23.
Committees
.
The Board may designate one or more committees, by resolution adopted by a majority of the total number of directors that the Company
would have if there were no vacancies on the Board, each committee to consist of one or more of the directors. The Board may designate
one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of
the committee. Any such committee, to the extent provided in the resolution of the Board, or in these Bylaws, will have and may
exercise all the powers and authority of the Board in the management of the business and affairs of the Company, and may authorize
the seal of the Company to be affixed to all papers which may require it; but no such committee will have the power or authority
in reference to the following matters: (a) the submission to shareholders of any action that requires shareholder approval under
the Act or (b) the filling of vacancies in the Board or in a committee; (c) the fixing of compensation of the directors for serving
on the Board or on any committee; (d) making, adopting, amending or repealing any provision of these Bylaws; or (e) the amendment
or repeal of any resolution of the Board which by its terms is not so amenable or repealable. In the absence of a provision by
the Board or a provision in the rules of such committee to increase the voting threshold, a majority of the committee members at
the time of such vote shall be the act of such committee.
24.
Compensation
.
The Board may establish the compensation of directors, including compensation for membership on the Board and on committees of
the Board, attendance at meetings of the Board or committees of the Board, and for other services provided to the Company or at
the request of the Board.
25.
Rules
.
The Board may adopt rules and regulations for the conduct of meetings and the oversight of the management of the affairs of the
Company.
26.
Interested
Directors
. No contract or other transaction between the Company and one or more of its directors, or between the Company and
any other corporation, firm, association or other entity in which one or more of its directors or officers are directors or officers,
or have a substantial financial interest, will be void or voidable solely for this reason, or solely because the director is present
at or participates in the meeting of the Board or committee thereof that authorizes the contract or transaction, or solely because
his or her or their votes are counted for such purpose, if the material facts as to his or her interest in such contract or transaction
and as to any such common directorship, officership or financial interest are disclosed in good faith or are known to (i) the Board
or the committee, as the case may be, and the Board or committee, as the case may be, approves such contract or transaction by
a vote sufficient for such purpose without counting the vote of such interested director or, if the votes of the disinterested
directors are insufficient to constitute an act of the Board, by a unanimous vote of the disinterested directors or (ii) the shareholders
entitled to vote thereon, and such contract or transaction is approved by vote of such shareholders. Common or interested directors
may be counted in determining the presence of a quorum at a meeting of the Board or of a committee which authorizes the contract
or transaction.
NOTICES
27.
Generally
.
(a) Except as otherwise provided by law, these Bylaws or the Articles of Incorporation, whenever by law or under the provisions
of the Articles of Incorporation or these Bylaws notice is required to be given to any director or shareholder, it will not be
construed to require personal notice, but such notice may be given personally, in writing, by mail or by electronic transmission,
addressed to such director or shareholder. Any notice sent to shareholders by mail will be sent to the address of such shareholder
as it appears on the records of the Company, with postage thereon prepaid, and such notice will be deemed to be given at the time
when the same is deposited in the mail. Notices sent by electronic transmission to the email address in the Company’s records
will be deemed effective. For purposes of these Bylaws, “
electronic transmission
” means any form of communication
permitted by the BCA, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved
and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated
process.
(b) Notices
to directors may be given personally or by mail or courier service, telephone, electronic transmission or as otherwise may be permitted
by these Bylaws.
28.
Waivers
.
Whenever any notice is required to be given by law or under the provisions of the Articles of Incorporation or these Bylaws, a
waiver thereof in writing, signed by the person entitled to such notice, or a waiver by electronic transmission by the person entitled
to such notice, whether before or after the time of the event for which notice is to be given, will be deemed equivalent to such
notice. Attendance of a person at a meeting will constitute a waiver of notice of such meeting, except when the person attends
a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened.
OFFICERS
29.
Generally
.
The officers of the Company will be elected by the Board and will consist of a Secretary. The Board may also choose any or all
of the following: a Chief Executive Officer, a President, a Treasurer, a Chief Operating Officer, a Chief Financial Officer, one
or more Senior Vice Presidents (who may be given particular designations with respect to authority, function, or seniority), one
or more Vice Presidents (who may be given particular designations with respect to authority, function, or seniority), one or more
Assistant Secretaries, one or more Assistant Treasurers and such other officers as the Board may from time to time determine. Notwithstanding
the foregoing, the Board may authorize the Chief Executive Officer to appoint any person to any office other than Secretary or
Treasurer. Any number of offices may be held by the same person. In the case of the absence or disability of any officer of the
Company or for any other reason deemed sufficient by a majority of the Board, the Board may delegate the absent or disabled officer’s
powers or duties to any other officer or to any director. For the avoidance of doubt, the Chairman is not an officer of the Company.
30.
Compensation
.
The compensation of all officers and agents of the Company who are also directors of the Company will be fixed by the Board or
by a committee of the Board. The Board may fix, or delegate the power to fix, the compensation of other officers and agents of
the Company to an officer of the Company.
31.
Succession
.
The officers of the Company will hold office for an indefinite period until their successors are elected and qualified or until
such officer’s earlier death, resignation or removal. Any officer may be removed at any time by the Board. Any vacancy occurring
in any office of the Company may be filled by the Board or by the Chief Executive Officer (if so delegated such power).
32.
Authority
and Duties
. Each of the officers of the Company will have such authority and will perform such duties as are customarily incident
to their respective offices or as may be specified from time to time by the Board.
SHARES
33.
Certificates
.
The shares of the Company will be represented by certificates unless the Board provides by resolution or resolutions that some
or all of any or all classes or series of shares will be uncertificated shares. Any such resolution will not apply to shares represented
by a certificate until such certificate is surrendered to the Company.
34.
Classes
of Shares
. The powers, designations, preferences and relative, participating, optional or other special rights of each class
or series of shares represented by certificates, if any, and the qualifications, limitations or restrictions of such preferences
and/or rights will be set forth in such manner as may be required by law or the rules of the stock exchange applicable to the Company.
Except as otherwise expressly provided by law, the rights and obligations of the holders of uncertificated shares and the rights
and obligations of the holders of certificates representing shares of the same class and series will be identical.
35.
Lost,
Stolen or Destroyed Certificates
. The Secretary may direct a new certificate or certificates or uncertificated shares to be
issued in place of any certificate or certificates theretofore issued by the Company alleged to have been lost, stolen or destroyed,
upon the making of an affidavit of that fact, satisfactory to the Secretary, by the person claiming the certificate of share to
be lost, stolen or destroyed. As a condition precedent to the issuance of a new certificate or certificates, the Secretary may
require the owners of such lost, stolen or destroyed certificate or certificates to give the Company a bond in such sum and with
such surety or sureties as the Secretary may direct as indemnity against any claims that may be made against the Company with respect
to the certificate alleged to have been lost, stolen or destroyed or the issuance of the new certificate or uncertificated shares.
GENERAL
36.
Fiscal
Year
. The fiscal year of the Company will be fixed from time to time by the Board.
37.
Reliance
Upon Books, Reports and Records
. Each director, each member of a committee designated by the Board, and each officer of the
Company will, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company
and upon such information, opinions, reports, or statements presented to the Company by any of the Company’s officers or
employees, or committees of the Board, or by any other person or entity as to matters the director, committee member, or officer
believes are within such other person’s professional or expert competence and who has been selected with reasonable care
by or on behalf of the Company.
38.
Amendments
.
Except as otherwise provided by law or by the Articles of Incorporation or these Bylaws, these Bylaws or any of them may be amended
in any respect or repealed at any time, either (a) at any meeting of shareholders (
provided
that any amendment or supplement
proposed to be acted upon at any such meeting has been described or referred to in the notice of such meeting) or (b) by the Board.
39.
Certain
Defined Terms
. Capitalized terms used herein and not otherwise defined have the meanings given to them in the Articles of Incorporation.
40.
Severability
.
If any provision (or any part thereof) of these Bylaws is be held to be invalid, illegal or unenforceable as applied to any circumstance
for any reason whatsoever: (i) the validity, legality and enforceability of such provisions in any other circumstance and of the
remaining provisions of these Bylaws (including each portion of any section of these Bylaws containing any such provision held
to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) will not in any way be
affected or impaired thereby and (ii) to the fullest extent possible, the provisions of these Bylaws (including each such portion
of any section containing any such provision held to be invalid, illegal or unenforceable) will be construed so as to permit the
Company to protect its directors, officers, employees and agents from personal liability in respect of their good faith service
or for the benefit of the Company to the fullest extent permitted by law.
Exhibit 10.2
DIAMOND S SHIPPING
INC.
FORM OF INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this “
Agreement
”),
dated [●], is made by and between Diamond S Shipping Inc., a shipping company incorporated in the Marshall Islands (the “
Company
”),
and [●] (the “
Indemnitee
” and, together with the Company, the “
Parties
”).
RECITALS:
The Indemnitee is a director or officer of the
Company and his or her willingness to serve in such capacity is predicated, in substantial part, upon the Company’s willingness
to indemnify him or her, to the fullest extent permitted by the laws of the Marshall Islands, and upon the other undertakings set
forth in this Agreement;
The Company desires to indemnify the Indemnitee
to the fullest extent permitted by the laws of the Marshall Islands; and
In recognition of the need to provide the Indemnitee
with substantial protection against personal liability, and in order to procure the Indemnitee’s continued service as a director
or officer of the Company, enhance the Indemnitee’s ability to serve the Company in an effective manner and provide such
protection pursuant to express contract rights (intended to be enforceable irrespective of, among other things, any amendment of
the articles of incorporation or bylaws of the Company (collectively, the “
Constituent Documents
”), any
change in the composition of the Company’s board of directors (the “
Board
”) or any change-in-control
or business combination transaction relating to the Company), the Company wishes to provide in this Agreement for the indemnification
of and the advancement of Expenses (as defined in Section 1(e)) to the Indemnitee as set forth in this Agreement and for the continued
coverage of the Indemnitee under the Company’s directors’ and officers’ liability insurance policies.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual
covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties hereby agree as follows:
1.
Certain Definitions
. In addition to terms defined elsewhere herein, the following terms have
the following meanings when used in this Agreement with initial capital letters:
“
Claim
” means (i) any
threatened, asserted, pending or completed claim, demand, action, suit or proceeding, whether civil, criminal, administrative,
arbitrative, investigative or other, and whether made pursuant to federal, state or other law in any jurisdiction; and (ii) any
threatened, pending or completed inquiry or investigation, whether made, instituted or conducted by or at the behest of the Company
or any other person, including any applicable court or governmental entity or agency and any committee or other representative
of any corporate constituency, that the Indemnitee determines might lead to the institution of any such claim, demand, action,
suit or proceeding.
“
Controlled Affiliate
”
means any corporation, limited liability company, partnership, joint venture, trust or other entity or enterprise, whether or not
for profit, that is directly or indirectly controlled by the Company. For purposes of this definition, “control” means
the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity
or enterprise, whether through the ownership of voting securities, through other voting rights, by contract or otherwise;
provided
that direct or indirect beneficial ownership of capital stock or other interests in an entity or enterprise entitling the holder
to cast 20% or more of the total number of votes generally entitled to be cast in the election of directors (or persons performing
comparable functions) of such entity or enterprise shall be deemed to constitute control for purposes of this definition.
“
Disinterested Director
”
means a director of the Company who is not and was not a party to the Claim in respect of which indemnification is sought by the
Indemnitee.
“
ERISA Losses
” means
any taxes, penalties or other liabilities under the Employee Retirement Income Security Act of 1974, as amended, or Section 4975
of the Internal Revenue Code of 1986, as amended.
“
Expenses
” means attorneys’
and experts’ fees and expenses and all other costs and expenses paid or payable in connection with investigating, defending,
being a witness in or participating in (including on appeal), or advising or preparing to investigate, defend, be a witness in
or participate in (including on appeal), any Claim, other than the fees, expenses and costs in respect of which the Company is
expressly stated in Section 15 to have no obligation.
“
Incumbent Directors
”
means the individuals who, as of the date hereof, are members of the Board and any individual becoming a member of the Board subsequent
to the date hereof whose election, nomination for election by the Company’s stockholders, or appointment, was approved by
a vote of at least two-thirds of the then Incumbent Directors (either by a specific vote or by approval of the proxy statement
of the Company in which such person is named as a nominee for director, without objection to such nomination);
provided
,
however
, that an individual shall not be an Incumbent Director if such individual’s election or appointment to the
Board occurs as a result of an actual or threatened election contest (as described in Rule 14a-12(c) of the Securities Exchange
Act of 1934, as amended) with respect to the election or removal of directors or other actual or threatened solicitation of proxies
or consents by or on behalf of a person other than the Board.
“
Indemnifiable Claim
”
means any Claim based upon, arising out of or resulting from (i) any actual, alleged or suspected act or failure to act by
the Indemnitee in his or her capacity as a director, officer, employee, member, manager, trustee or agent of the Company or as
a director, officer, employee, member, manager, trustee or agent of any other corporation, limited liability company, partnership,
joint venture, trust or other entity or enterprise, whether or not for profit (including any employee benefit plan or related trust),
as to which the Indemnitee is or was serving at the request of the Company as a director, officer, employee, member, manager, trustee
or agent, (ii) any actual, alleged or suspected act or failure to act by the Indemnitee in respect of any business, transaction,
communication, filing, disclosure or other activity of the Company or any other entity or enterprise referred to in clause (i)
of this sentence, or (iii) the Indemnitee’s status as a current or former director, officer, employee, member, manager, trustee
or agent of the Company or as a current or former director, officer, employee, member, manager, trustee or agent of the Company
or any other entity or enterprise referred to in clause (i) of this sentence or any actual, alleged or suspected act or failure
to act by the Indemnitee in connection with any obligation or restriction imposed upon the Indemnitee by reason of such status;
provided
,
however
, that except for compulsory counterclaims, Indemnifiable Claim shall not include any Claim initiated
by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the
initiation of such Claim. In addition to any service at the actual request of the Company, for purposes of this Agreement, the
Indemnitee shall be deemed to be serving or to have served at the request of the Company as a director, officer, employee, member,
manager, trustee or agent of another entity or enterprise if the Indemnitee is or was serving as a director, officer, employee,
member, manager, trustee or agent of such entity or enterprise and (i) such entity or enterprise is or at the time of such
service was a Controlled Affiliate, (ii) such entity or enterprise is or at the time of such service was an employee benefit
plan (or related trust) sponsored or maintained by the Company or a Controlled Affiliate, or (iii) the Company or a Controlled
Affiliate directly or indirectly caused or authorized the Indemnitee to be nominated, elected, appointed, designated, employed,
engaged or selected to serve in such capacity.
“
Indemnifiable Losses
”
means any and all Losses relating to, arising out of or resulting from any Indemnifiable Claim.
“
Independent Counsel
”
means a law firm, or a member of a law firm, that is experienced in matters of corporation and limited liability company law and
neither presently is, nor in the past five years has been, retained to represent: (i) the Company (or any Subsidiary) or the
Indemnitee in any matter material to either such party (other than with respect to matters concerning the Indemnitee under this
Agreement, or of other indemnitees under similar indemnification agreements), or (ii) any other named (or, as to a threatened
matter, reasonably likely to be named) party to the Indemnifiable Claim giving rise to a claim for indemnification hereunder. Notwithstanding
the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional
conduct then prevailing, would have a conflict of interest in representing either the Company or the Indemnitee in an action to
determine the Indemnitee’s rights under this Agreement.
“
Losses
” means any
and all Expenses, damages, losses, liabilities, judgments, fines, penalties (whether civil, criminal or other), any liabilities
under employee benefit plans (including ERISA Losses) and amounts paid in settlement, including all interest, assessments and other
charges paid or payable in connection with or in respect of any of the foregoing.
“
Subsidiary
” means
an entity in which the Company directly or indirectly beneficially owns 50% or more of the outstanding Voting Stock.
“
Voting Stock
” means
securities entitled to vote generally in the election of directors (or similar governing bodies).
2.
Indemnification Obligation
. Subject to Section 8, the Company shall indemnify and
hold harmless the Indemnitee, to the fullest extent permitted or required by the laws of the Marshall Islands in effect on
the date hereof or as such laws may from time to time hereafter be amended to increase the scope of such permitted or
required indemnification, against any and all Indemnifiable Claims and Indemnifiable Losses;
provided
,
however
,
that no repeal or amendment of any law of the Marshall Islands shall in any way diminish or adversely affect the rights of
the Indemnitee pursuant to this Agreement in respect of any occurrence or matter arising prior to any such repeal or
amendment.
3.
Advancement of Expenses
. The Indemnitee shall have the right to advancement by the
Company prior to the final disposition of any Indemnifiable Claim of any and all Expenses relating to, arising out of or
resulting from any Indemnifiable Claim paid or incurred by the Indemnitee or which the Indemnitee determines are reasonably
likely to be paid or incurred by the Indemnitee. The Indemnitee’s right to such advancement is not subject to the
satisfaction of any standard of conduct and is not conditioned upon any prior determination that the Indemnitee is entitled
to indemnification under this Agreement with respect to the Indemnifiable Claim or the absence of any prior determination to
the contrary. Without limiting the generality or effect of the foregoing, within five business days after any written request
by the Indemnitee, the Company shall, in accordance with such request (but without duplication), (a) pay such Expenses
on behalf of the Indemnitee, (b) advance to the Indemnitee funds in an amount sufficient to pay such Expenses, or (c)
reimburse the Indemnitee for such Expenses;
provided
that the Indemnitee shall repay, without interest any
amounts actually advanced to the Indemnitee that, at the final disposition of the Indemnifiable Claim to which the advance
related, were in excess of amounts paid or payable by the Indemnitee in respect of Expenses relating to, arising out of or
resulting from such Indemnifiable Claim. In connection with any such payment, advancement or reimbursement, if delivery of an
undertaking is a legally required condition precedent to such payment, advance or reimbursement, the Indemnitee shall execute
and deliver to the Company an undertaking in the form attached hereto as
Exhibit A
(subject to the Indemnitee filling
in the blanks therein and selecting from among the bracketed alternatives therein), which need not be secured and shall be
accepted by the Company without reference to the Indemnitee’s ability to repay the Expenses. In no event shall the
Indemnitee’s right to the payment, advancement or reimbursement of Expenses pursuant to this Section 3 be conditioned
upon any undertaking that is less favorable to the Indemnitee than, or that is in addition to, the undertaking set forth in
Exhibit
A
.
4.
Indemnification for Additional Expenses
. Without limiting the generality or effect of
the foregoing, the Company shall indemnify and hold harmless the Indemnitee against and, if requested by the Indemnitee,
shall reimburse the Indemnitee for, or advance to Indemnitee, within five business days of such request, any and all
Expenses paid or incurred by the Indemnitee or which the Indemnitee determines are reasonably likely to be paid or incurred
by the Indemnitee in connection with any Claim made, instituted or conducted by the Indemnitee, in each case to the fullest
extent permitted or required by applicable law in effect on the date hereof or as such laws may from time to time hereafter
be amended to increase the scope of such permitted or required indemnification, reimbursement or advancement of such
Expenses, for (a) indemnification or payment, advancement or reimbursement of Expenses by the Company under any
provision of this Agreement, or under any other agreement or provision of the Constituent Documents now or hereafter in
effect relating to Indemnifiable Claims, and/or (b) recovery under any directors’ and officers’ liability
insurance policies maintained by the Company;
provided
,
however
, that the Indemnitee shall return, without
interest, any such advance of Expenses (or portion thereof) which remains unspent at the final disposition of the Claim to
which the advance related.
5.
Contribution
. To the fullest extent permissible under applicable law in
effect on the date hereof or as such law may from time to time hereafter be amended to increase the scope of permitted or
required indemnification, if the indemnification provided for in this Agreement is unavailable to the Indemnitee for any
reason whatsoever, the Company, in lieu of indemnifying the Indemnitee, shall contribute to the payment of any and all
Indemnifiable Claims or Indemnifiable Losses, in such proportion as is fair and reasonable in light of all of the
circumstances in order to reflect (i) the relative benefits received by the Company and the Indemnitee as a result of the
event(s) and/or transaction(s) giving cause to such Indemnifiable Claim or Indemnifiable Loss; and/or (ii) the relative fault
of the Company (and its other directors, officers, employees, members, managers, trustees and agents) and the Indemnitee in
connection with such event(s) and/or transaction(s);
provided
that such contribution shall not be required where it
is determined, pursuant to a final disposition of such Indemnifiable Claim or Indemnifiable Loss in accordance with Section
8, that the Indemnitee is not entitled to indemnification by the Company with respect to such Indemnifiable Claim or
Indemnifiable Loss.
6.
Partial Indemnity
. If the Indemnitee is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of any Indemnifiable Loss, but not for all of the total amount thereof,
the Company shall nevertheless indemnify the Indemnitee for the portion thereof to which the Indemnitee is entitled.
7.
Procedure for Notification
. To obtain indemnification under this Agreement in respect of
an Indemnifiable Claim or Indemnifiable Loss, the Indemnitee shall submit to the Company a written request therefor,
including a brief description (based upon information then available to Indemnitee) of such Indemnifiable Claim or
Indemnifiable Loss. If, at the time of the receipt of such request, the Company has directors’ and officers’
liability insurance in effect under which coverage for such Indemnifiable Claim or Indemnifiable Loss is potentially
available, the Company shall give prompt written notice of such Indemnifiable Claim or Indemnifiable Loss to the applicable
insurers in accordance with the procedures set forth in the applicable policies. The Company shall provide to the Indemnitee
a copy of such notice delivered to the applicable insurers, and copies of all subsequent correspondence between the Company
and such insurers regarding the Indemnifiable Claim or Indemnifiable Loss, in each case substantially concurrently with the
delivery or receipt thereof by the Company. If requested by Indemnitee, the Company shall use its reasonable efforts, at the
Company’s expense, to enforce on behalf of and for the benefit of Indemnitee all rights (including rights to
receive payment) that may exist under the applicable policies of insurance in relation to such Indemnifiable Claim or
Indemnifiable Loss. The failure by the Indemnitee to timely notify the Company of any Indemnifiable Claim or Indemnifiable
Loss shall not relieve the Company from any liability hereunder unless, and only to the extent that, the Company did not
otherwise learn of such Indemnifiable Claim or Indemnifiable Loss and such failure results in forfeiture by the Company of
substantial defenses, rights or insurance coverage.
8.
Determination of Right to Indemnification
.
(a) To
the extent that the Indemnitee shall have been successful on the merits or otherwise in defense of any Indemnifiable Claim or any
portion thereof or in defense of any issue or matter therein, including dismissal without prejudice, the Indemnitee shall be indemnified
against Indemnifiable Losses relating to, arising out of or resulting from such Indemnifiable Claim in accordance with Section 2
and no Standard of Conduct Determination (as defined in Section 8(b)) shall be required with respect to such Indemnifiable
Claim.
(b) To
the extent that the provisions of Section 8(a) are inapplicable to an Indemnifiable Claim that shall have been finally disposed
of, any determination of whether the Indemnitee has satisfied the applicable standard of conduct that such person did not act with
gross negligence, bad faith, fraudulently or willful misconduct (the “
Standard of Conduct
”) shall be
made as follows: (i) by a majority vote of the Disinterested Directors, even if less than a quorum of the Board, (ii) if
such Disinterested Directors so direct, by a majority vote of a committee of Disinterested Directors designated by a majority vote
of all Disinterested Directors, or (iii) if there are no such Disinterested Directors or if the Indemnitee so requests, by
Independent Counsel, selected by the Indemnitee and approved by the Board (such approval not to be unreasonably withheld, delayed
or conditioned), in a written opinion addressed to the Board, a copy of which shall be delivered to Indemnitee (a “
Standard
of Conduct Determination
”);
provided
,
however
, that if at the time of any Standard of Conduct Determination
the Indemnitee is neither a director nor an officer of the Company, such Standard of Conduct Determination may be made by or in
the manner specified by the Board, any duly authorized committee of the Board or any duly authorized officer of the Company (unless
the Indemnitee requests that such Standard of Conduct Determination be made by Independent Counsel, in which case such Standard
of Conduct Determination shall be made by Independent Counsel). The Indemnitee will cooperate with the person or persons making
such Standard of Conduct Determination, including providing to such person or persons, upon reasonable advance request, any documentation
or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee
and reasonably necessary to such determination. The Company shall indemnify and hold harmless the Indemnitee against and, if requested
by Indemnitee, shall reimburse the Indemnitee for, or advance to the Indemnitee, within five business days of such request, any
and all costs and expenses (including attorneys’ and experts’ fees and expenses) incurred by the Indemnitee in so cooperating
with the person or persons making such Standard of Conduct Determination.
(c) The
Company shall use its reasonable efforts to cause any Standard of Conduct Determination required under Section 8(b) to be
made as promptly as practicable. If (i) the person or persons empowered or selected under Section 8 to make the Standard
of Conduct Determination shall not have made a determination within 30 days after the later of (A) receipt by the Company
of written notice from the Indemnitee advising the Company of the final disposition of the applicable Indemnifiable Claim (the
date of such receipt being the “
Notification Date
”) and (B) the selection of an Independent Counsel, if
such determination is to be made by Independent Counsel, and (ii) the Indemnitee shall have fulfilled his or her obligations
set forth in the second sentence of Section 8(b), then the Indemnitee shall be deemed to have satisfied the applicable standard
of conduct;
provided
that such 30-day period may be extended for a reasonable time, not to exceed an additional 30 days,
if the person or persons making such determination in good faith requires such additional time for obtaining or evaluating any
documentation or information relating thereto.
(d) If
(i) the Indemnitee shall be entitled to indemnification hereunder against any Indemnifiable Losses pursuant to Section 8(a),
(ii) no determination of whether the Indemnitee has satisfied any applicable standard of conduct under Marshall Islands law
is a legally required condition precedent to indemnification of the Indemnitee hereunder against any Indemnifiable Losses, or (iii) the
Indemnitee has been determined or deemed pursuant to Section 8(b) or (c) to have satisfied any applicable standard of conduct
under Marshall Islands law which is a legally required condition precedent to indemnification of the Indemnitee hereunder against
any Indemnifiable Losses, then the Company shall pay to Indemnitee, within five business days after the later of (x) the
Notification Date in respect of the Indemnifiable Claim or portion thereof to which such Indemnifiable Losses are related, out
of which such Indemnifiable Losses arose or from which such Indemnifiable Losses resulted and (y) the earliest date on which
the applicable criterion specified in clause (i), (ii) or (iii) above shall have been satisfied, an amount equal to the amount
of such Indemnifiable Losses.
9.
Presumption of Entitlement
.
(a) In
making a determination of whether the Indemnitee has been successful on the merits or otherwise in defense of any Indemnifiable
Claim or any portion thereof or in defense of any issue or matter therein, the Company acknowledges that a resolution, disposition
or outcome short of dismissal or final judgment, including outcomes that permit the Indemnitee to avoid expense, delay, embarrassment,
injury to reputation, distraction, disruption or uncertainty, may constitute such success. In the event that any Indemnifiable
Claim or any portion thereof or issue or matter therein is resolved or disposed of in any manner other than by adverse judgment
against the Indemnitee (including any resolution or disposition thereof by means of settlement with or without payment of money
or other consideration), it shall be presumed that the Indemnitee has been successful on the merits or otherwise in defense of
such Indemnifiable Claim or portion thereof or issue or matter therein. The Company may overcome such presumption only by its adducing
clear and convincing evidence to the contrary.
(b) In
making any Standard of Conduct Determination, the person or persons making such determination shall presume that the Indemnitee
has satisfied the Standard of Conduct, and the Company may overcome such presumption only by its adducing clear and convincing
evidence to the contrary. Any Standard of Conduct Determination that the Indemnitee has satisfied the applicable standard of conduct
shall be final and binding in all respects, including with respect to any litigation or other action or proceeding initiated by
Indemnitee to enforce his or her rights hereunder. Any Standard of Conduct Determination that is adverse to the Indemnitee may
be challenged by the Indemnitee in the courts of the Marshall Islands. No determination by the Company (including by its directors
or any Independent Counsel) that the Indemnitee has not satisfied the Standard of Conduct shall be a defense to any Claim by the
Indemnitee for indemnification or reimbursement or advance payment of Expenses by the Company hereunder or create a presumption
that the Indemnitee has not met any applicable Standard of Conduct.
(c) Without
limiting the generality or effect of Section 9(b), (i) to the extent that any Indemnifiable Claim relates to any entity or
enterprise (other than the Company) referred to in clause (i) of the first sentence of the definition of “Indemnifiable
Claim,” the Indemnitee shall be deemed to have satisfied the applicable Standard of Conduct if the Indemnitee acted in good
faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the interests of such entity or enterprise
(or the owners or beneficiaries thereof, including in the case of any employee benefit plan the participants and beneficiaries
thereof) and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was
unlawful, and (ii) in all cases, any belief of the Indemnitee that is based on the records or books of account of the Company,
including financial statements, or on information supplied to the Indemnitee by the directors or officers of the Company in the
course of their duties, or on the advice of legal counsel for the Company, the Board, any committee of the Board or any director,
or on information or records given or reports made to the Company, the Board, any committee of the Board or any director by an
independent certified public accountant or by an appraiser or other expert selected by or on behalf of the Company, the Board,
any committee of the Board or any director shall be deemed to be reasonable.
10.
No
Adverse Presumption
. For purposes of this Agreement, the termination of any Claim by judgment, order, settlement (whether with
or without court approval) or conviction, or upon a plea of
nolo contendere
or its equivalent, will not create a presumption
that the Indemnitee did not meet the Standard of Conduct or that indemnification hereunder is otherwise not permitted.
11.
Non-Exclusivity;
[Primary of Company’s Obligations]
.
(a) The
rights of the Indemnitee hereunder will be in addition to any other rights the Indemnitee may have against the Company under the
Constituent Documents, or the substantive laws of the Company’s jurisdiction of registration, any other contract or otherwise
(collectively, “
Other Indemnity Provisions
”);
provided
,
however
, that (a) to the extent
that the Indemnitee otherwise would have any greater right to indemnification under any Other Indemnity Provision, the Indemnitee
will be deemed to have such greater right hereunder and (b) to the extent that any change is made to any Other Indemnity Provision
which permits any greater right to indemnification than that provided under this Agreement as of the date hereof, the Indemnitee
will be deemed to have such greater right hereunder. The Board will not adopt any amendment to any of the Constituent Documents
the effect of which would be to deny, diminish or encumber Indemnitee’s right to indemnification under this Agreement or
any Other Indemnity Provision.
(b) [The
Company hereby acknowledges that the Indemnitee has certain rights to indemnification, advancement of expenses and/or insurance
provided by [applicable Fund] and certain of its affiliates (collectively, the “
Fund Indemnitors
”). The
Company hereby agrees (i) that it is the indemnitor of first resort (i.e., its obligations to the Indemnitee are primary and any
obligation of the Fund Indemnitors to advance expenses or to provide indemnification to the Indemnitee in respect of any Indemnifiable
Claim or Indemnifiable Loss is secondary), (ii) that it shall be required to advance the full amount of Expenses incurred by the
Indemnitee and shall be liable for the full amount of all Expenses and Indemnifiable Losses to the extent legally permitted and
as required by the terms of this Agreement or any Other Indemnity Provisions, without regard to any rights the Indemnitee may have
against the Other Indemnitors, and (iii) that it irrevocably waives, relinquishes and releases the Other Indemnitors from
any and all claims against the Other Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof.
The Company further agrees that no advancement or payment by the Other Indemnitors on behalf of the Indemnitee with respect to
any claim for which the Indemnitee has sought indemnification from the Company shall affect the foregoing and the Other Indemnitors
shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery
of the Indemnitee against the Company. The Company and the Indemnitee agree that the Other Indemnitors are express third-party
beneficiaries of the provisions of this Section 11(b).]
12.
Liability
Insurance and Funding
. For the duration of Indemnitee’s service as a director and/or officer of the Company, and thereafter
for so long as the Indemnitee shall be subject to any pending or possible Indemnifiable Claim, the Company shall use reasonable
efforts (taking into account the scope and amount of coverage available relative to the cost thereof) to cause to be maintained
in effect policies of directors’ and officers’ liability insurance providing coverage for directors and/or officers
of the Company that is at least substantially comparable in scope and amount to that provided by the Company’s current policies
of directors’ and officers’ liability insurance. The Company shall provide the Indemnitee with a copy of all directors’
and officers’ liability insurance applications, binders, policies, declarations, endorsements and other related materials,
and shall provide the Indemnitee with a reasonable opportunity to review and comment on the same. Without limiting the generality
or effect of the two immediately preceding sentences, the Company shall not discontinue or significantly reduce the scope or amount
of coverage from one policy period to the next (i) without the prior approval thereof by a majority vote of the Incumbent Directors,
even if less than a quorum of the Board, or (ii) if at the time that any such discontinuation or significant reduction in
the scope or amount of coverage is proposed there are no Incumbent Directors, without the prior written consent of the Indemnitee
(which consent shall not be unreasonably withheld, conditioned or delayed). In all policies of directors’ and officers’
liability insurance obtained by the Company, the Indemnitee shall be named as an insured in such a manner as to provide the Indemnitee
the same rights and benefits, subject to the same limitations, as are accorded to the Company’s directors and officers most
favorably insured by such policy. The Company may, but shall not be required to, create a trust fund, grant a security interest
or use other means, including a letter of credit, to ensure the payment of such amounts as may be necessary to satisfy its obligations
to indemnify and advance expenses pursuant to this Agreement.
13.
Subrogation
.
[Except as provided in Section 11(b),] In the event of payment under this Agreement, the Company shall be subrogated to the extent
of such payment to all of the related rights of recovery of the Indemnitee against other persons or entities (other than Indemnitee’s
successors), including any entity or enterprise referred to in clause (i) of the definition of “Indemnifiable Claim”
in Section 1(g). The Indemnitee shall execute all papers reasonably required to evidence such rights (all of Indemnitee’s
reasonable Expenses, including attorneys’ fees and charges, related thereto to be reimbursed by or, at the option of Indemnitee,
advanced by the Company).
14.
No
Duplication of Payments
. [Except as provided in Section 11(b),] The Company shall not be liable under this Agreement to make
any payment to the Indemnitee in respect of any Indemnifiable Losses to the extent the Indemnitee has otherwise actually received
and is entitled to retain payment (net of any Expenses incurred in connection therewith and any repayment by the Indemnitee made
with respect thereto) under any insurance policy, the Constituent Documents and Other Indemnity Provisions or otherwise (including
from any entity or enterprise referred to in clause (i) of the definition of “Indemnifiable Claim” in Section 1(g))
in respect of such Indemnifiable Losses otherwise indemnifiable hereunder.
15.
Defense
of Claims
. The Company shall be entitled to participate in the defense of any Indemnifiable Claim or to assume the defense
thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable
Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement,
including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing
at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and continuing
for so long as the Company shall be using its reasonable efforts to provide an effective defense of such Indemnifiable Claim, the
Company shall have the right to control the defense of such Indemnifiable Claim and shall have no obligation under this Agreement
in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee
in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection
with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the
request of the Company or with the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed));
provided
that if the Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use
of counsel chosen by the Company to represent the Indemnitee would present such counsel with an actual or potential conflict, (b) the
named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and the Indemnitee and
the Indemnitee shall conclude that there may be one or more legal defenses available to him or her that are different from or in
addition to those available to the Company, or (c) any such representation by such counsel would be precluded under the applicable
standards of professional conduct then prevailing, then the Indemnitee shall be entitled to retain and use the services of separate
counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at
the Company’s expense. Nothing in this Agreement shall limit the Indemnitee’s right to retain or use his or her own
counsel at his or her own expense in connection with any Indemnifiable Claim;
provided
that in all events the Indemnitee
shall not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company shall
have assumed and of which the Company shall be using its reasonable best efforts to provide an effective defense. The Company shall
not be liable to the Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable
Claim effected without the Company’s prior written consent. The Company shall not, without the prior written consent of Indemnitee,
effect any settlement of any threatened or pending Indemnifiable Claim to which the Indemnitee is, or could have been, a party
unless such settlement solely involves the payment of money and includes a complete and unconditional release of the Indemnitee
from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor the Indemnitee
shall unreasonably withhold, condition or delay its consent to any proposed settlement;
provided
that the Indemnitee may
withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.
16.
Successors
and Binding Agreement
.
The Company shall require any successor (whether
direct or indirect, by purchase, merger, consolidation, reorganization or otherwise) to all or substantially all of the business
or assets of the Company, by agreement in form and substance satisfactory to the Indemnitee and his or her counsel, expressly to
assume and agree to perform this Agreement in the same manner and to the same extent the Company would be required to perform if
no such succession had taken place. This Agreement shall be binding upon and inure to the benefit of the Company and any successor
to the Company, including any person acquiring directly or indirectly all or substantially all of the business or assets of the
Company whether by purchase, merger, consolidation, reorganization or otherwise (and such successor will thereafter be deemed the
“
Company
” for purposes of this Agreement), but shall not otherwise be assignable or delegatable by the
Company.
(b) This
Agreement shall inure to the benefit of and be enforceable by Indemnitee’s personal or legal representatives, executors,
administrators, heirs, distributees, legatees and other successors.
(c) This
Agreement is personal in nature and neither of the Parties shall, without the consent of the other, assign or delegate this Agreement
or any rights or obligations hereunder except as expressly provided in Sections 16(a) and 16(b). Without limiting the generality
or effect of the foregoing, Indemnitee’s right to receive payments hereunder shall not be assignable, whether by pledge,
creation of a security interest or otherwise, other than by a transfer by Indemnitee’s will or by the laws of descent and
distribution, and, in the event of any attempted assignment or transfer contrary to this Section 16(c), the Company shall
have no liability to pay any amount so attempted to be assigned or transferred.
17.
Notices
.
For all purposes of this Agreement, all communications, including notices, consents, requests or approvals, required or permitted
to be given hereunder shall be in writing and shall be deemed to have been duly given when hand delivered or dispatched by electronic
facsimile transmission or electronic mail (with receipt thereof orally confirmed), or five business days after having been mailed
by registered or certified mail, return receipt requested, postage prepaid or one business day after having been sent for next-day
delivery by a nationally recognized overnight courier service, addressed to the Company (to the attention of the Corporate Secretary)
and to the Indemnitee at the applicable address shown on the signature page hereto, or to such other address as any of the Parties
hereto may have furnished to the other in writing and in accordance herewith, except that notices of changes of address will be
effective only upon receipt. Sections 8 and 19(3) of the Electronic Transactions Law (2003 Revision) shall not apply to this Agreement.
18.
Governing
Law
. The validity, interpretation, construction and performance of this Agreement shall be governed by and construed in accordance
with the laws of the Marshall Islands. The Company and the Indemnitee each hereby irrevocably consent to the jurisdiction of the
courts of the Marshall Islands for all purposes in connection with any action or proceeding which arises out of or relates to this
Agreement and agree that any action instituted under this Agreement shall be brought only in the courts of the Marshall Islands.
19.
Validity
.
If any provision of this Agreement or the application of any provision hereof to any person or circumstance is held invalid, unenforceable
or otherwise illegal, the remainder of this Agreement and the application of such provision to any other person or circumstance
shall not be affected, and the provision so held to be invalid, unenforceable or otherwise illegal shall be reformed to the extent,
and only to the extent, necessary to make it enforceable, valid or legal. In the event that any court or other adjudicative body
shall decline to reform any provision of this Agreement held to be invalid, unenforceable or otherwise illegal as contemplated
by the immediately preceding sentence, the parties thereto shall take all such action as may be necessary or appropriate to replace
the provision so held to be invalid, unenforceable or otherwise illegal with one or more alternative provisions that effectuate
the purpose and intent of the original provisions of this Agreement as fully as possible without being invalid, unenforceable or
otherwise illegal.
20.
Miscellaneous
.
No provision of this Agreement may be waived, modified or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Indemnitee and the Company. No waiver by either Party hereto at any time of any breach by the other Party
hereto or compliance with any condition or provision of this Agreement to be performed by such other Party shall be deemed a waiver
of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, expressed or implied with respect to the subject matter hereof have been made by either Party hereto that are
not set forth expressly in this Agreement.
21.
Legal
Fees and Expenses; Interest
.
(a) It
is the intent of the Company that the Indemnitee not be required to incur legal fees and or other Expenses associated with the
interpretation, enforcement or defense of Indemnitee’s rights under this Agreement by litigation or otherwise because the
cost and expense thereof would substantially detract from the benefits intended to be extended to the Indemnitee hereunder. Accordingly,
without limiting the generality or effect of any other provision hereof, if it should appear to the Indemnitee that the Company
has failed to comply with any of its obligations under this Agreement (including its obligations under Section 3) or in the event
that the Company or any other person takes or threatens to take any action to declare this Agreement void or unenforceable, or
institutes any litigation or other action or proceeding designed to deny, or to recover from, the Indemnitee the benefits provided
or intended to be provided to the Indemnitee hereunder, the Company irrevocably authorizes the Indemnitee from time to time to
retain counsel of Indemnitee’s choice, at the expense of the Company as hereafter provided, to advise and represent the Indemnitee
in connection with any such interpretation, enforcement or defense, including the initiation or defense of any litigation or other
legal action, whether by or against the Company or any director, officer, manager, stockholder or other person affiliated with
the Company, in any jurisdiction. Notwithstanding any existing or prior attorney-client relationship between the Company and such
counsel, the Company irrevocably consents to Indemnitee’s entering into an attorney-client relationship with such counsel,
and in that connection the Company and the Indemnitee agree that a confidential relationship shall exist between the Indemnitee
and such counsel. The Company will pay and be solely financially responsible for any and all attorneys’ and related fees
and expenses incurred by the Indemnitee in connection with any of the foregoing to the fullest extent permitted or required by
the laws of the Marshall Islands in effect on the date hereof or as such laws may from time to time hereafter be amended to increase
the scope of such permitted or required payment of such fees and expenses.
(b) Any
amount due to the Indemnitee under this Agreement that is not paid by the Company by the date on which it is due will accrue interest
at the maximum legal rate provided under Marshall Islands law from the date on which such amount is due to the date on which such
amount is paid to Indemnitee.
22.
Certain
Interpretive Matters
. Unless the context of this Agreement otherwise requires, (a) “it” or “its”
or words of any gender include each other gender, (b) words using the singular or plural number also include the plural or
singular number, respectively, (c) the terms “hereof,” “herein,” “hereby” and derivative
or similar words refer to this entire Agreement, (d) the terms “Section” or “Exhibit” refer to the
specified Section or Exhibit of or to this Agreement, (e) the terms “include,” “includes” and “including”
will be deemed to be followed by the words “without limitation” (whether or not so expressed), (f) the word “or”
is disjunctive but not exclusive, and (g) “gross negligence” in relation to a person means a standard of conduct beyond
negligence whereby that person acts with reckless disregard for the consequences of a breach of a duty of care owed to another.
Whenever this Agreement refers to a number of days, such number will refer to calendar days unless business days are specified
and whenever action must be taken (including the giving of notice or the delivery of documents) under this Agreement during a certain
period of time or by a particular date that ends or occurs on a non-business day, then such period or date will be extended until
the immediately following business day. As used herein, “business day” means any day other than Saturday, Sunday or
a United States federal holiday or a Marshall Islands public holiday.
23.
No
Third-Party Beneficiary
. This Agreement is made solely for the benefit of the Parties hereto and a person who is not a party
to this Agreement may not, in its own right or otherwise, enforce any term of this Agreement except as expressly contemplated by
the provisions of [Section 11(b) and] Section 16 of this Agreement. Notwithstanding any term of this Agreement, the consent of
or notice to any person who is not a party to this Agreement shall not be required for any termination, rescission or agreement
to any variation, waiver, assignment, novation, release or settlement under this Agreement at any time.
24.
Counterparts
.
This Agreement may be executed in one or more counterparts (delivery of which may be by facsimile, via electronic mail as a portable
document format (.pdf) or by other electronic means), each of which will be deemed to be an original but all of which together
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the Indemnitee has executed
and the Company has caused its duly authorized representative to execute this Agreement on the date first above written.
|
|
DIAMOND S SHIPPING INC.
|
|
|
|
|
|
c/o Corporate Secretary
|
|
|
33 Benedict Place
|
|
|
Greenwich, CT 06830
|
|
|
USA
|
|
|
|
|
|
|
By:
|
|
|
|
|
Name:
|
|
|
|
Title:
|
EXHIBIT A
UNDERTAKING
This Undertaking is submitted pursuant to the
Indemnification Agreement, dated ___________, 2019 (the “
Indemnification Agreement
”), between Diamond
S Shipping Inc., a shipping company incorporated in the Marshall Islands (the “
Company
”), and the undersigned.
Capitalized terms used and not otherwise defined herein have the meanings ascribed to such terms in the Indemnification Agreement.
The undersigned hereby requests
[payment],
[advancement], [reimbursement]
by the Company of Expenses which the undersigned
[has incurred] [reasonably expects to incur]
in connection with ___________ ___ (the “
Indemnifiable Claim
”).
The undersigned hereby undertakes to repay the
[payment]
,
[advancement]
,
[reimbursement]
of Expenses made by the Company to or on behalf of the undersigned
in response to the foregoing request to the extent it is determined, following the final disposition of the Indemnifiable Claim
and in accordance with Section 8 of the Indemnification Agreement, that the undersigned is not entitled to indemnification by the
Company under the Indemnification Agreement with respect to the Indemnifiable Claim.
IN WITNESS WHEREOF, the undersigned has executed
this Undertaking on this ____ day of ___________ ___, ____.
