Exhibit 99.1

CERTIFICATE OF DESIGNATIONS

OF

SERIES G REDEEMABLE CONVERTIBLE PERPETUAL PREFERRED SHARES

(Par Value US$1.00 Per Share)

OF

TSAKOS ENERGY NAVIGATION LIMITED

TSAKOS ENERGY NAVIGATION LIMITED, a Bermuda exempted company limited by shares (hereinafter called the “Company”), does hereby certify that pursuant to authority contained in Sections 3.4 and 27.6 of its Bye-laws, the Board of Directors of the Company, acting by unanimous written consent dated September 23, 2019, has duly adopted a resolution providing for the issuance of a series of preferred shares, of a par value US$1.00 per share, of the Company each with the rights set forth in this Certificate of Designations.

Special Terms of the Series G Preferred Shares

Section 1. Designation and Amount: Securities Depository.

(a) Designation Amount. There shall be created from the currently available 7,980,000 Preferred Shares of the Company authorized to be issued pursuant to the Memorandum of Association and the Bye-laws (each as herein defined), a series of preferred shares, designated as the “Series G Redeemable Convertible Perpetual Preferred Shares,” par value US$1.00 per share (the “Series G Preferred Shares”), and the designated number of shares of Series G Preferred Shares shall be 3,500,000.

(b) Securities Depository. The Series G Preferred Shares will be represented by one or more certificates registered in the name of the Holder, or if mutually agreed by the Company and the Holder, all or a portion of the Series G Preferred Shares may be issued in book-entry form or a single certificate registered in the name of the Securities Depository or its nominee. If and so long as the Securities Depository shall have been appointed and is serving, payments and communications made by the Company to Holders of the Series G Preferred Shares represented by a certificate registered in the name of the Securities Depository shall be made by making payments to, and communicating with, the Securities Depository.

Section 2. Dividends and Distributions.

(a) Dividends Not During an Event of Default. Except as provided in Section 2(b) and 2(c), the Series G Preferred Shares shall fully participate, on an as-converted basis as if the Series G Preferred Shares were converted into Common Shares, on the record date for any dividend or other distribution paid to holders thereof, at the Conversion Price in effect on such record date, in any dividends or other distributions paid to the holders of Common Shares.

(b) Dividends During a Cross Default or Failure to Redeem. Effective as of the date of a Cross Default or Failure to Redeem, and without duplication if more than one such event has occurred and is continuing at any time, dividends on each Series G Preferred Share shall be cumulative and shall accrue at the Dividend Rate from the date of the Cross Default or Failure to Redeem, whether or not such dividends shall have been declared, and whether or not there are profits, surplus, or other funds legally available for the payment of dividends. Holders of Series G Preferred Shares shall be entitled to receive dividends from time to time out of any assets of the Company legally available for the payment of dividends, when, as, and if declared by the Board of Directors. Dividends, to the extent declared to be paid by the Company in accordance with this Certificate of Designations and applicable Bermuda law, shall be paid quarterly on each Dividend Payment Date. Dividends shall accumulate during each Default Dividend Period, and dividends shall accrue on accumulated dividends at the Dividend Rate. If any Dividend Payment Date otherwise would fall on a date that is not a Business Day, declared dividends shall be paid on the immediately succeeding Business Day without the accumulation of additional dividends or interest. Dividends on the Series G Preferred Shares shall be payable based on a 360-day year consisting of twelve 30-day months. The Company shall promptly inform each Holder when a Cross Default or Failure to Redeem has occurred, and when such Cross Default or Failure to Redeem has ceased.

(c) Dividend Rate. The Dividend Rate during any period, other than a Default Dividend Period, shall equal 0%. Except as otherwise provided in this Section 2(c), during any Default Dividend Period the “Dividend Rate” shall be equal to the Base Dividend Rate. Effective as of the date of the Cross Default or Failure to Redeem, and without duplication if more than one such event has occurred and is continuing at any time, the Dividend Rate shall be 1.25 times the Dividend Rate payable on the Series G Preferred Shares as of the close of business on the day immediately preceding the date of the Cross Default or Failure to Redeem, as applicable, and on each subsequent Dividend Payment Date, the Dividend Rate payable in respect of the succeeding quarter shall increase to a number that is 1.25 times the Dividend Rate as in effect as of the close of business on the day immediately preceding such Dividend Payment Date, until no Cross Default and Failure to Redeem exists. Notwithstanding the foregoing, in no event shall dividends accrue on the Series G Preferred Shares at a rate greater than 30% per annum. If a Cross Default and Failure to Redeem ceases to exist, the Dividend Rate payable on the Series G Preferred Shares shall be 0%, effective as of the date such Cross Default and Failure to Redeem ceases to exist (as evidenced by the delivery of an Officer’s Certificate by the Company to the Holders), and Section 2(a) shall apply. Section 2(a) shall not apply during a Cross Default or Failure to Redeem.

(d) Payment and Priorities of Dividends. Not later than 5:00 p.m., New York City time, on each Dividend Payment Date, the Company shall pay those dividends, if any, on the Series G Preferred Shares that shall have been declared by the Board of Directors to the Holders of record of such shares as such Holders’ names appear on the stock transfer books of the Company maintained by the Company or Registrar and Transfer Agent on the applicable Record Date. The applicable record date (the “Record Date”) for any dividend payment shall be three Business Days immediately preceding the applicable Dividend Payment Date, except that in the case of payments of dividends in arrears, the Record Date with respect to a Dividend Payment Date shall be such date as may be designated by the Board of Directors in accordance with the Company’s Bye-laws and this Certificate of Designations. No dividend shall be declared or paid or set apart for payment on any Junior Securities (other than a dividend payable solely in shares of Junior Securities) unless full cumulative dividends have been or contemporaneously are being paid or provided for on all issued and outstanding Series G Preferred Shares and any Parity Securities through the most recent respective dividend payment dates. Accumulated dividends in arrears for any past Default Dividend Period may be declared by the Board of Directors and paid on any date fixed by the Board of Directors, whether or not a Dividend Payment Date, to Holders of the Series G Preferred Shares on the record date for such payment, which may not be more than 60 days, nor less than 15 days, before such payment date. Subject to the next succeeding sentence, if all accumulated dividends in arrears on all outstanding Series G Preferred Shares and any Parity Securities shall not have been declared and paid, or if sufficient funds for the payment thereof shall not have been set apart, payment of accumulated dividends in arrears on the Series G Preferred Shares and any such Parity Securities shall be made in order of their respective dividend payment dates, commencing with the earliest. If less than all dividends payable with respect to all Series G Preferred Shares and any Parity Securities are paid, any partial payment shall be made pro rata with respect to the Series G Preferred Shares and any Parity Securities entitled to a dividend payment at such time in proportion to the aggregate dividend amounts remaining due in respect of such shares at such time. Holders of the Series G Preferred Shares shall not be entitled to any dividend, whether payable in cash, property or shares, in excess of full cumulative dividends.

Section 3. Voting Rights.

(a) General. The Series G Preferred Shares shall have no voting rights except as set forth in this Section 3 (or elsewhere in this Certificate of Designations) or as otherwise provided by the Companies Act.

(b) Other Voting Rights. Unless the Company shall have received the affirmative vote or consent of the Holders of at least two-thirds of the outstanding Series G Preferred Shares, voting as a single class, the Company shall not:

(i) Adopt any amendment to the Memorandum of Association or Bye-laws (including by merger, consolidation or otherwise) that materially or adversely alters or affects the preferences, powers or rights of the Series G Preferred Shares in any respect.

 

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(ii) Adopt any amendment to this Certificate of Designations (including by merger, consolidation or otherwise).

(iii) Split, combine, reverse split or undertake a similar action with respect to the Series G Preferred Shares.

(c) Voting Power. For any matter described in this Section 3 in which the Holders of the Series G Preferred Shares are entitled to vote as a class (whether separately or together with the holders of any Parity Securities), such Holders shall be entitled to one vote per Series G Preferred Share. Any Series G Preferred Shares held by the Company or any of its subsidiaries or Affiliates shall not be entitled to vote and shall not be deemed outstanding for purposes of determining the number of shares of Series G Preferred Shares entitled to vote.

Section 4. Reacquired Shares. Subject to compliance with Bermuda law and the Companies Act, any Series G Preferred Shares may be purchased, redeemed (subject to Section 6 hereof), or otherwise acquired by the Company in any manner whatsoever. Any such purchased, redeemed or otherwise acquired Series G Preferred Shares shall be retired and canceled after the acquisition thereof. All such shares shall become authorized but unissued Preferred Shares and may be reissued as part of a new series of Preferred Shares to be created by resolution or resolutions of the Board of Directors.

Section 5. Liquidation Rights.

(a) Liquidation Event. Upon the occurrence of any Liquidation Event, Holders of outstanding Series G Preferred Shares shall be entitled to receive out of the assets of the Company or proceeds thereof legally available for distribution to shareholders of the Company, whether from capital, surplus or earnings, (i) after satisfaction of all liabilities, if any, to creditors of the Company, (ii) after all applicable distributions of such assets or proceeds being made to or set aside for the holders of any Senior Securities then outstanding in respect of such Liquidation Event, (iii) concurrently with any applicable distributions of such assets or proceeds being made to or set aside for holders of any Parity Securities then outstanding in respect of such Liquidation Event, and (iv) before any distribution of such assets or proceeds is made to or set aside for the holders of Common Shares and any other classes or series of Junior Securities as to such distribution, a liquidating distribution or payment in full redemption of such Series G Preferred Shares in an amount equal to the Series G Liquidation Preference per share. For purposes of clarity, upon the occurrence of any Liquidation Event, (x) the holders of then outstanding Senior Securities shall be entitled to receive the applicable Liquidation Preference on such Senior Securities before any distribution shall be made to the Holders of the Series G Preferred Shares or any Parity Securities, and (y) the Holders of outstanding Series G Preferred Shares shall be entitled to the Series G Liquidation Preference per share in cash concurrently with any distribution made to the holders of Parity Securities and before any distribution shall be made to the holders of Common Shares or any other Junior Securities. Holders of Series G Preferred Shares shall not be entitled to any other amounts from the Company, in their capacity as Holders of such shares, after they have received the full Series G Liquidation Preference. The payment of the Series G Liquidation Preference shall be a payment in redemption of the Series G Preferred Shares such that, from and after payment of the full Series G Liquidation Preference, any such Series G Preferred Share shall thereafter be cancelled and no longer be outstanding.

(b) Partial Payment. If, in the event of any distribution or payment described in Section 5(a) above where the Company’s assets available for distribution to holders of the outstanding Series G Preferred Shares and any Parity Securities are insufficient to satisfy the applicable Liquidation Preference for such Series G Preferred Shares and Parity Securities, the Company’s then remaining assets or proceeds thereof legally available for distribution to shareholders of the Company shall be distributed among the Series G Preferred Shares and such Parity Securities, as applicable, ratably on the basis of their relative aggregate Liquidation Preferences. To the extent that the Holders receive a partial payment of their Series G Liquidation Preference, such partial payment shall reduce the Series G Liquidation Preference of their Series G Preferred Shares, but only to the extent of such amount paid.

(c) Residual Distributions. After payment of the applicable Liquidation Preference to the holders of the outstanding Series G Preferred Shares and any Parity Securities, the Company’s remaining assets and funds shall be distributed among the holders of the Common Shares and any other Junior Securities then outstanding according to their respective rights and preferences.

 

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Section 6. Redemption.

 

(a)

Rights to Cause Redemption.

(i) Company’s Option to Redeem. (A) The Company may, at any time prior to September 1, 2020, redeem some or all Series G Preferred Shares, as more fully described in this Certificate of Designation, from any source of funds legally available for such purpose. The Company shall effect any such redemption by paying cash for each Series G Preferred Share to be redeemed in an amount equal to the Optional Redemption Price for such share on such Redemption Date. (B) The Company shall have the right, in connection with a Delisting Event that occurs at any time after the First Mandatory Redemption Date, to redeem the remaining issued and outstanding Series G Preferred Shares, at its option, from any source of funds legally available for such purpose, by paying cash at a per share price equal to the Mandatory Redemption Price.

(ii) Mandatory Redemption and Conversion. (A) On the First Mandatory Redemption Date, (1) the Company shall redeem issued and outstanding Series G Preferred Shares having an aggregate Mandatory Redemption Price as of such date equal to the lesser of the Maximum Aggregate Redemption Price and the Permitted Redemption Amount, by paying cash, subject to Section 6(g) below, to the Holder thereof, at a per share price equal to the Mandatory Redemption Price; and (2) the remaining issued and outstanding Series G Preferred Shares, after giving effect to the redemption payment pursuant to Section 6(a)(ii)(A)(1), other than an amount of Series G Preferred Shares having an aggregate Mandatory Redemption Price as of such date equal to the Redemption Shortfall Amount, after giving effect to the redemption payment pursuant to Section 6(a)(ii)(A)(1), shall automatically convert into Common Shares at the Conversion Rate in accordance with Section 7 of this Certificate of Designations, unless the Company in its sole discretion determines to waive the Maximum Aggregate Redemption Price and redeem such excess Series G Preferred Shares for cash at the Mandatory Redemption Price.

(B) On each Subsequent Mandatory Redemption Date, the Company shall redeem issued and outstanding Series G Preferred Shares having an aggregate Mandatory Redemption Price as of such date equal to the lesser of the Redemption Shortfall Amount and the Permitted Redemption Amount, in each case as of such date, by paying cash, subject to Section 6(g) below, to the Holder thereof, at a per share price equal to the Mandatory Redemption Price; provided that if upon any such redemption payment the Redemption Shortfall Amount equals zero, then all remaining issued and outstanding Series G Preferred Shares shall automatically convert into Common Shares at the Conversion Rate in accordance with Section 7 of this Certificate of Designations, unless the Company in its sole discretion determines to redeem such excess Series G Preferred Shares for cash at the Mandatory Redemption Price.

(C) On the fifth anniversary of the Original Issue Date, if the value of the Common Shares, based on a 10-day trailing VWAP to such fifth anniversary date per Common Share, issuable upon the conversion of the Series G Preferred Shares that remain issued and outstanding is (1) equal to or higher than the Final Redemption Price of such issued and outstanding Series G Preferred Shares, all remaining issued and outstanding Series G Preferred Shares shall automatically convert into Common Shares at the Conversion Rate in accordance with Section 7 of this Certificate of Designations, unless the Company in its sole discretion determines to redeem some or all such Series G Preferred Shares at the Mandatory Redemption Price for cash; and (2) less than the Final Redemption Price of such issued and outstanding Series G Preferred Shares, the Company shall pay the Final Redemption Price of such Series G Preferred Shares in the form of Shyris Shipping Series B Preferred Shares having an aggregate stated liquidation preference equal to the Final Redemption Price of such Series G Preferred Shares, unless the Company in its sole discretion determines to redeem some or all such Series G Preferred Shares at the Mandatory Redemption Price for cash and/or, subject to compliance with Bermuda law and the Companies Act, Common Shares valued based on a 10-day trailing VWAP to such fifth anniversary date per Common Share.

(iii) Holder’s Right to Cause Redemption. If there has been a Shyris Shipping Failure, then upon a Holder’s request, the Company shall redeem all of such Holder’s Series G Preferred Shares. The Company shall effect any such redemption by paying the Shyris Shipping Failure Redemption Price in cash within 10 days of the Holder’s request, and the Company shall deposit funds sufficient to redeem all the Series G Preferred Shares no later than 5:00 p.m. New York City time on the Business Day immediately preceding the Redemption Date, and shall give the Paying Agent irrevocable instructions and authority to pay the Redemption Price to the Holders of the Series G Preferred Shares to be redeemed upon surrender or deemed surrender (which shall occur automatically if the certificate representing such shares is issued in the name of the Securities Depository or its nominee) of the certificates therefor. There shall be no redemption of any Series G Preferred Shares pursuant to this Section 6(a)(iii) until funds sufficient to pay the full Shyris Shipping Failure Redemption Price of such shares shall have been deposited by the Company with the Paying Agent or in an applicable bank account for use to effect such redemption.

 

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(b) Application of Payments. So long as the Series G Preferred Shares are held of record by the nominee of the Securities Depository, the Optional Redemption Price or Mandatory Redemption Price (as applicable, the “Redemption Price”) shall be paid by the Paying Agent to the Securities Depository on the Redemption Date.

(c) Redemption Notice. The Company shall give notice of a redemption made pursuant to Section 6(a)(i) or 6(a)(ii) by mail, postage prepaid, not less than 10 days and not more than 60 days before the scheduled Redemption Date, to the Holders of record (as of 5:00 p.m. New York City time on the Business Day next preceding the day on which notice is given) of any Series G Preferred Shares to be redeemed as such Holders’ names appear on the Company’s share transfer books maintained by the Company or the applicable Registrar and Transfer Agent and at the address of such Holders shown therein. Such notice (the “Redemption Notice”) shall state: (1) the Redemption Date, (2) the number of Series G Preferred Shares to be redeemed and, if less than all outstanding Series G Preferred Shares are to be redeemed, the number (and the identification) of shares to be redeemed from such Holder, (3) the Redemption Price, (4) the place where the Series G Preferred Shares are to be redeemed and shall be presented and surrendered for payment of the Redemption Price therefor and (5) that dividends on the shares to be redeemed shall cease to accumulate from and after such Redemption Date. Any Holder may elect to convert any or all Series G Preferred Shares pursuant to Section 7 after receipt of the Redemption Notice, but prior to the Redemption Date.

(d) Effect of Redemption; Partial Redemption. If fewer than all of the outstanding Series G Preferred Shares are redeemed on a Redemption Date, the number of shares to be redeemed shall be determined by the Company, and such shares shall be redeemed pro rata or by lot or by any other equitable method as the Securities Depository or the Company, as applicable, shall determine, with adjustments to avoid redemption of fractional shares. The aggregate Redemption Price for any such partial redemption of the outstanding Series G Preferred Shares shall be allocated correspondingly among the redeemed Series G Preferred Shares. The Series G Preferred Shares not redeemed shall remain outstanding and entitled to all the rights and preferences provided in this Certificate of Designations (it being noted that Series G Preferred Shares not redeemed pursuant to Section 6(a)(ii) or 6(a)(iii), as applicable, may convert into Common Shares in accordance with Sections 6(a)(ii) or 6(a)(iii), as applicable, and Section 7 hereof).

(e) Redemption Funds. If the Company gives or causes to be given a Redemption Notice, the Company shall deposit funds sufficient to redeem the Series G Preferred Shares as to which such Redemption Notice shall have been given no later than 5:00 p.m. New York City time on the Business Day immediately preceding the Redemption Date, and shall give the Paying Agent irrevocable instructions and authority to pay the Redemption Price to the Holders of the Series G Preferred Shares to be redeemed upon surrender or deemed surrender (which shall occur automatically if the certificate representing such shares is issued in the name of the Securities Depository or its nominee) of the certificates therefor as set forth in the Redemption Notice. If the Redemption Notice shall have been given, from and after the Redemption Date, unless the Company defaults in providing funds sufficient for such redemption at the time and place specified for payment pursuant to the Redemption Notice, all dividends on such Series G Preferred Shares to be redeemed shall cease to accumulate and all rights of Holders of such shares as the Company’s shareholders shall cease, except the right to receive the Redemption Price, and such shares shall not thereafter be transferred on the Company’s share transfer books maintained by the Company or the applicable Registrar and Transfer Agent or be deemed to be outstanding for any purpose whatsoever. The Company shall be entitled to receive from the Paying Agent the interest income, if any, earned on such funds deposited with the Paying Agent (to the extent that such interest income is not required to pay the Redemption Price of the Series G Preferred Shares to be redeemed), and the Holders of any shares so redeemed shall have no claim to any such interest income. Any funds deposited with the Paying Agent hereunder by the Company for any reason, including redemption of Series G Preferred Shares, that remain unclaimed or unpaid after two years after the applicable Redemption Date or other payment date, shall be, to the extent permitted by law, repaid to the Company upon its written request after which repayment the Holders of the Series G Preferred Shares entitled to such redemption or other payment shall have recourse only to the Company. Notwithstanding any Redemption Notice, there shall be no redemption of any Series G Preferred Shares called for redemption until funds sufficient to pay the full Redemption Price of such shares shall have been deposited by the Company with the Paying Agent or in an applicable bank account for use to effect such redemption.

 

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(f) Certificate. Any Series G Preferred Shares that are redeemed or otherwise acquired by the Company, if deemed cancelled by the Company, shall constitute Preferred Shares subject to designation by the Board of Directors as set forth in the Memorandum of Association and Bye-laws. If only a portion of the Series G Preferred Shares represented by a certificate shall have been called for redemption, upon surrender of the certificate to the Paying Agent (which shall occur automatically if the certificate representing such shares is registered in the name of the Securities Depository or its nominee), the Paying Agent shall issue to the Holder of such shares a new certificate (or adjust the applicable book-entry account) representing the number of Series G Preferred Shares represented by the surrendered certificate that have not been called for redemption.

(g) Consideration. The Company may pay the Mandatory Redemption Price, in an amount up to the Maximum Aggregate Redemption Price, in the form of Shyris Shipping Series B Preferred Shares having an aggregate stated liquidation preference equal to the Mandatory Redemption Price paid therewith, in lieu of cash, in accordance with the provisions of the Share Purchase Agreement.

(h) Redemption Priority. If the Company is required to redeem any Series G Preferred Shares, then the Company will take all reasonable action within its means to maximize the assets available for redeeming such Series G Preferred Shares and will use all such assets available therefor (and any additional assets that from time to time become available).

Section 7. Conversion. Series G Preferred Shares are not convertible into or exchangeable for any other property or securities of the Company, except as provided in this Section 7 and Section 6.

(a) Optional Conversion. Each Holder may elect to convert its Series G Preferred Shares, in whole or in part, at any time and from time to time into Common Shares at the Conversion Rate.

(b) Mandatory Conversion. If the VWAP for the Common Shares over any ten consecutive Trading Day period exceeds (i) 130% of the Conversion Price per share, then 25% of the Series G Preferred Shares issued and outstanding as of the Original Issue Date will mandatorily convert to Common Shares at the Conversion Rate then in effect (based on the formula contained in Section 7(a)), (ii) 150% of the Conversion Price per share, then 25% of the Series G Preferred Shares issued and outstanding as of the Original Issue Date will mandatorily convert to Common Shares at the Conversion Rate and (iii) exceeds 170% of the Conversion Price per share, then all Series G Preferred Shares will mandatorily convert to Common Shares at the Conversion Rate. Notwithstanding anything herein to the contrary, no Series G Preferred Shares shall be mandatorily converted (or otherwise be converted at the option of anyone but the Holder thereof) if there is not a registration statement covering the resale by the Holder of the Common Shares to be so issued upon such conversion, which registration statement has been filed and remains effective with the U.S. Securities and Exchange Commission (the “Commission”).

(c) Adjustment of Conversion Price as Result of Certain Corporate Actions. The Conversion Price in effect at any time shall be adjusted as follows:

(i) If the Company shall, at any time or from time to time, effect a subdivision or split of the outstanding Common Shares, the Conversion Price in effect immediately before such subdivision or split shall be proportionately decreased and, conversely, if the Company shall, at any time or from time to time, effect a combination of the outstanding Common Shares, the Conversion Price in effect immediately before such combination shall be proportionately increased. Any adjustment under this Section 7(c)(i) shall become effective at the close of business on the date of the applicable subdivision, split or combination.

(ii) In the event that the Company shall, at any time or from time to time, make or issue to all holders of Common Shares, a dividend or other distribution payable in Common Shares, then the Conversion Price in effect shall be decreased as of the time of such issuance in accordance with the following formula:

 

				O
C1		=		C x -----------------
				O + N

 

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where:

 

C1 =		The adjusted Conversion Price.
C =		The current Conversion Price.
O =		The number of Common Shares outstanding immediately prior to the applicable issuance.
N =		The number of additional Common Shares issued in payment of such dividend or distribution.

(d) Corporate Events. Prior to the consummation of any transaction pursuant to which holders of Common Shares are entitled to receive securities or other assets with respect to or in exchange for Common Shares, including a reclassification, exchange, substitution or reorganization (a “Corporate Event”), the Company shall make appropriate provision to ensure that each Holder will thereafter have the right to receive upon a conversion of all the Series G Preferred Shares held by such Holder, such securities and other assets (including cash) that such Holder would have been entitled to receive had such Holder converted its Series G Preferred Shares into Common Shares immediately prior to the consummation of such Corporate Event. The provisions of this Section 7(d) shall apply similarly and equally to successive Corporate Events.

(e) Mechanics of Conversion; Accrued and Unpaid Dividends Paid in Cash. No fractional Common Shares shall be issued upon conversion of Series G Preferred Shares. In lieu of any fractional shares to which the Holder would otherwise be entitled, the Company shall pay cash equal to such fraction multiplied by the closing price of the Common Shares on the Trading Day prior to such conversion. Before any Holder shall be entitled to convert the same into full Common Shares, and to receive certificates therefor, the Holder shall surrender the certificate or certificates therefor, duly endorsed, at the office of the Company or of any Transfer Agent for the Series G Preferred Shares (to the extent not registered in the name of the Securities Depository or its nominee), and shall give written notice to the Company at such office that such Holder is converting the same; provided, however, that the Company shall not be obligated to issue certificates evidencing the Common Shares issuable upon conversion unless either the certificates evidencing such Series G Preferred Shares are delivered to the Company or its Transfer Agent as provided above, or the Holder notifies the Company or its Transfer Agent that such certificates have been lost, stolen or destroyed and executes an agreement satisfactory to the Company to indemnify the Company from any loss incurred by it in connection with such certificates.

The Company shall, as soon as practicable after such delivery (which shall occur automatically for such Series G Preferred Shares represented by a certificate registered in the name of the Securities Depository or its nominee), or after such agreement and indemnification, issue and deliver at such office to such Holder, a certificate or certificates for the number of Common Shares to which such Holder shall be entitled as aforesaid (or the applicable book-entry account shall be created and/or noted as credited with such Common Shares) and a check payable to the Holder in the amount of any accrued and unpaid dividends on the converted Series G Preferred Shares plus any cash amounts payable as the result of a conversion into fractional Common Shares. Such conversion shall be deemed to have been made immediately prior to the close of business on the date of such surrender of Series G Preferred Shares to be converted, and the Person or Persons entitled to receive the Common Shares issuable upon such conversion shall be treated for all purposes as the record holder or holders of such Common Shares on such date.

(f) Reservation of Stock Issuable Upon Conversion. The Company shall at all times after the Original Issue Date, reserve and keep available out of its authorized but unissued Common Shares solely for the purpose of effecting the conversion of the Series G Preferred Shares, such number of its Common Shares as shall from time to time be sufficient to effect the conversion of all then outstanding Series G Preferred Shares; and if at any time the number of authorized but unissued Common Shares shall not be sufficient to effect the conversion of all then outstanding Series G Preferred Shares, the Company will take such corporate action as may, in the opinion of its counsel, be necessary to increase its authorized but unissued Common Shares to such number of shares as shall be sufficient for such purpose, including engaging in best efforts to obtain the requisite stockholder approval of any necessary amendment to this Certificate of Designations or the Memorandum of Association and Bye-laws.

 

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(g) Treasury Stock. The number of Common Shares outstanding at any given time shall not include shares owned or held, directly or indirectly, by or for the account of the Company.

(h) Other Events. If any event occurs of the type contemplated by the foregoing provisions of this Section 7 but not expressly provided for by such provisions, then the Board of Directors will make an appropriate adjustment to the Conversion Price so as to maintain the conversion rights of the holders of the Series G Preferred Shares; provided, however, that no such adjustment will increase the Conversion Price as otherwise determined pursuant to this Section 7.

(i) Actions Relating to the Conversion Price. Notwithstanding the provisions of this Section 7, in no event shall the Company take any action or permit any Corporate Event or similar event to occur (including that the Company will not effect a subdivision or split of the Common Shares, or pay a dividend or other distribution payable in Common Shares), that would result in an effective Conversion Price of less than the par value of the Common Shares.

(j) Legal Method of Conversion. Any conversion of Series G Preferred Shares to Common Shares of the Company may be effected by way of variation of rights, share repurchase and issue, share consolidation, share subdivision and/or any other manner permitted by applicable law.

(k) Beneficial Ownership Limitation. Notwithstanding anything herein to the contrary, the Company shall not effect any conversion of the Series G Preferred Shares, and a Holder shall not have the right to convert any of its Series G Preferred Shares, to the extent that, after giving effect to an attempted conversion, such Holder (together with such Holder’s Affiliates, and any other Person whose beneficial ownership of Common Shares would be aggregated with the Holder’s for purposes of Section 13(d) of the U.S. Securities Exchange Act of 1934 (the “Exchange Act”) and the applicable rules and regulations of the Commission, including any “group” of which the Holder is a member) would beneficially own a number of Common Shares in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the aggregate number of Common Shares beneficially owned by such Holder and its Affiliates shall include the number of Common Shares issuable upon conversion of the Series G Preferred Shares subject to the notice of conversion with respect to which the determination of such sentence is being made, but shall exclude the number of Common Shares which are issuable upon (A) conversion of the remaining, unconverted Series G Preferred Shares beneficially owned by such Holder or any of its Affiliates, and (B) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such Holder or any of its Affiliates, in each case, that are subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this Section 7(k), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the applicable rules and regulations of the Commission. In addition, for purposes hereof, “group” has the meaning set forth in Section 13(d) of the Exchange Act and the applicable rules and regulations of the Commission. For purposes of this Section 7(k), in determining the number of outstanding Common Shares, a Holder may rely on the number of outstanding Common Shares as reflected in (A) the Company’s most recent Form 20-F, Report on Form 6-K or other public filing with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent notice by the Company or the Company’s transfer agent to the Holder setting forth the number of Common Shares then outstanding. For any reason at any time, upon the written or oral request of a Holder (which may be by email), the Company shall, within two (2) Business Days of such request, confirm orally and in writing to such Holder (which may be via email) the number of Common Shares then outstanding. In any case, the number of outstanding Common Shares shall be determined after giving effect to any actual conversion or exercise of securities of the Company, including shares of Series G Preferred Shares, by such Holder or its Affiliates since the date as of which such number of outstanding Common Shares was last publicly reported or confirmed to the Holder. The “Beneficial Ownership Limitation” shall be 9.99% of the number of Common Shares outstanding immediately after giving effect to the issuance of Common Shares pursuant to such notice of conversion (to the extent permitted pursuant to this Section 7(k)). The Holder, upon notice to the Company, may increase (or decrease, but not below 9.99%) the Beneficial Ownership Limitation provisions of this Section 7(k); however, any increase (or decrease, but not below 9.99%) in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The Company shall be entitled to rely on

 

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representations made to it by the Holder in any notice of conversion regarding its Beneficial Ownership Limitation. The provisions of this Section 7(k) shall be construed, corrected and implemented in a manner so as to effectuate the intended beneficial ownership limitation herein contained and the Common Shares underlying the Series G Preferred Shares in excess of the Beneficial Ownership Limitation shall not be deemed to be beneficially owned by the Holder for any purpose including for purposes of Section 13(d) of the Exchange Act.

Section 8. Rank. The Series G Preferred Shares shall be deemed to rank:

(a) Senior. Senior to (i) all classes of Common Shares, (ii) if issued, the Series A Preferred Shares (including any additional Series A Preferred Shares issued after the Original Issue Date), and (iii) any other class or series of share capital established after the Original Issue Date by the Board of Directors, the terms of which class or series expressly provide that it is made junior to the Series G Preferred Shares as to dividend distributions and distributions upon any Liquidation Event (collectively referred to with the Common Shares as “Junior Securities”);

(b) Parity. On a parity with (i) the Series C Preferred Shares (including any additional Series C Preferred Shares issued after the Original Issue Date); (ii) the Series D Preferred Shares (including any additional Series D Preferred Shares issued after the Original Issue Date); (iii) the Series E Preferred Shares (including any additional Series E Preferred Shares issued after the Original Issue Date); (iv) the Series F Preferred Shares (including any additional Series F Preferred Shares issued after the Original Issue Date); and (v) any class or series of share capital established after the Original Issue Date by the Board of Directors, the terms of which class or series are not expressly subordinated or senior to the Series G Preferred Shares as to dividend distributions and distributions upon any Liquidation Event (collectively referred to as “Parity Securities”); and

(c) Junior. Junior to (i) all of the Company’s indebtedness and other liabilities with respect to assets available to satisfy claims against the Company and (ii) any class or series of share capital established after the Original Issue Date by the Board of Directors, the terms of which class or series expressly provide that it ranks senior to the Series G Preferred Shares as to dividend distributions and distributions upon any Liquidation Event (collectively referred to as “Senior Securities”).

The Company may issue Junior Securities, Parity Securities or Senior Securities from time to time in one or more series without the consent of the holders of the Series G Preferred Shares. The Board of Directors has the authority to determine the preferences, powers, qualifications, limitations, restrictions and special or relative rights or privileges, if any, of any such series before the issuance of any shares of that series. The Board of Directors shall also determine the number of shares constituting each such series of securities.

Section 9. Definitions. As used herein with respect to the Series G Preferred Shares:

 

(a)

“Affiliate” means, in regard to a specified Person, a Person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the Person specified. As used in this definition, “control” (including the terms controlling, controlled by and under common control with) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.

 

(b)

“Base Dividend Rate” means a rate equal to 7.75% per annum of the Stated Liquidation Preference per share.

 

(c)

“Board of Directors” means the board of directors of the Company or any authorized committee thereof.

 

(d)

“Business Day” means a day on which the New York Stock Exchange is open for trading and which is not a Saturday, a Sunday or other day on which banks in New York City are authorized or required by law to close.

 

(e)

“Bye-laws” means the bye-laws of the Company, as they may be amended from time to time.

 

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(f)

“Certificate of Designations” means this Certificate of Designations relating to the Series G Preferred Shares, as it may be amended from time to time in a manner consistent with this Certificate of Designations, the Memorandum of Association, the Bye-laws and the Companies Act.

 

(g)

“Commission” has the meaning set forth in Section 7(b) of this Certificate of Designations.

 

(h)

“Common Shares” means the common shares of the Company, par value US$1.00 per share, and any other outstanding class of common shares of the Company.

 

(i)

“Companies Act” means The Companies Act 1981 of Bermuda, as amended from time to time.

 

(j)

“Company” has the meaning set forth in the introductory paragraph of this Certificate of Designations. For the avoidance of doubt, references to the Company refer to Tsakos Energy Navigation Limited specifically and not to any of its subsidiaries or Affiliates, except for purposes of calculating financial items expressly defined herein as calculated on a consolidated basis.

 

(k)

“Conversion Price” means US$3.00 (subject to adjustment pursuant to Sections 7(c), (d) and (h) hereof, as applicable).

 

(l)

“Conversion Rate” is equal to a fraction with the Series G Liquidation Preference (less any cash amounts paid with respect to accrued and unpaid dividends on such Series G Preferred Share pursuant to Section 7(e) of this Certificate of Designations) in the numerator and the Conversion Price (as then in effect) in the denominator. For the avoidance of doubt, accrued and unpaid dividends on converted Series G Preferred Shares shall be paid in cash pursuant to Section 7(e).

 

(m)

“Corporate Event” has the meaning set forth in Section 7(d) of this Certificate of Designations.

 

(n)

“Credit Facility” means, with respect to the Company or any subsidiary, any debt or commercial paper facilities with banks or other lenders providing for revolving credit or term loans or any agreement treated as a finance or capital lease in accordance with U.S. GAAP.

 

(o)

“Cross Default” means a default by the Company under any Credit Facility if such default is caused by a failure to pay principal of, or interest or premium, if any, on outstanding indebtedness under such Credit Facility (other than non-recourse indebtedness of any subsidiary) prior to the expiration of the grace period for payment of such indebtedness set forth in such Credit Facility (“payment default”), and the principal amount of any such indebtedness, together with the principal amount of any other such indebtedness under which there has been a payment default aggregates US$25 million or more, in each case whether or not such default is declared by the relevant lender.

 

(p)

“Default Dividend Period” means a period of time commencing on and including the date a Cross Default or Failure to Redeem occurs and ending on and including the calendar day preceding the day that no Cross Default or Failure to Redeem remains.

 

(q)

“Delisting Event” means an event that shall be deemed to have occurred at the time after the date hereof when the Company’s common stock ceases to be listed or admitted for trading on the New York Stock Exchange, the NASDAQ Capital Market, the NASDAQ Global Market or the NASDAQ Global Select Market (or any of their respective successors).

 

(r)

“Discretionary Redemption Percentage” means (i) 40%, or (ii), if agreed by all of the Holders, 49.9%.

 

(s)

“Dividend Payment Date” means each March 1, June 1, September 1 and December 1 of each calendar year.

 

(t)

“Dividend Rate” has the meaning set forth in Section 2(c) of this Certificate of Designations.

 

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(u)

“Exchange Act” has the meaning set forth in Section 7(k) of this Certificate of Designations.

 

(v)

“Failure to Redeem” means the failure of the Company to redeem, on the applicable date, all of the Series G Preferred Shares required to be redeemed on a Mandatory Redemption Date pursuant to Section 6(a) of this Certificate of Designations, whether or not the Board of Directors has authorized any such redemption and whether or not such redemption is legally permissible or is prohibited by any agreement to which the Company is subject.

 

(w)

“Final Redemption Price” a U.S. dollar amount providing for a return of 7.75% per annum on an actual 360-day basis on the Stated Liquidation Preference, with such return calculation made on a share-by-share basis and taking into account all cash dividends actually received on the relevant Series G Preferred Share.

 

(x)

“First Mandatory Redemption Date” means the earlier of (i) the date on which the last of the Vessels is delivered from the relevant shipyard and (ii) February 1, 2021.

 

(y)

“Holder” means the Person in whose name the Series G Preferred Shares are registered on the share register of the Company maintained by the Company or the Registrar and Transfer Agent.

 

(z)

“Junior Securities” has the meaning set forth in Section 8(a) of this Certificate of Designations.

 

(aa)

“Liquidation Event” means the occurrence of a liquidation, dissolution or winding up of the affairs of the Company, whether voluntary or involuntary. Neither the sale of all or substantially all of the property or business of the Company nor the consolidation, amalgamation or merger of the Company with or into any other Person, individually or in a series of transactions, shall be deemed a Liquidation Event.

 

(bb)

“Liquidation Preference” means, in connection with any distribution in connection with a Liquidation Event pursuant to Section 5(a) of this Certificate of Designations and with respect to any holder of any class or series of share capital of the Company, the amount otherwise payable to such holder in such distribution with respect to such class or series of share capital (assuming no limitation on the assets of the Company available for such distribution), including an amount equal to any accrued but unpaid dividends thereon to the date fixed for such payment, whether or not declared (if the terms of the applicable class or series of share capital of the Company so provide). For avoidance of doubt, for the foregoing purposes the Series G Liquidation Preference is the Liquidation Preference with respect to the Series G Preferred Shares.

 

(cc)

“Mandatory Redemption Date” means the First Mandatory Redemption Date or a Subsequent Mandatory Redemption Date, as applicable.

 

(dd)

“Mandatory Redemption Price” means a price per Series G Preferred Share equal to the greater of (i) the Conversion Rate multiplied by 95% of the trailing six month VWAP (taken as a whole) of the Common Shares as of the Redemption Date and (ii) a U.S. dollar amount providing for a return of 7.75% per annum on an actual 360-day basis on the Stated Liquidation Preference, with such return calculation made on a share-by-share basis and taking into account all cash dividends actually received on the relevant Series G Preferred Share.

 

(ee)

“Maximum Aggregate Redemption Price” means US$35,000,000.

 

(ff)

“Memorandum of Association” means the Memorandum of Association of the Company, as it may be amended from time to time in a manner consistent with this Certificate of Designations, and shall include this Certificate of Designations.

 

 

11

(gg)

“Optional Redemption Price” means:

 

a.

For a Redemption Date that is prior to March 1, 2020, 115% of the relevant Conversion Price (on the Redemption Date) per share multiplied by the Conversion Rate, plus any accrued but unpaid dividends on the Series G Preferred Share, provided that no more than 25% of the Series G Preferred Shares issued on the Original Issue Date may be redeemed pursuant to this sentence.

 

b.

For a Redemption Date that is prior to September 1, 2020, 130% of the relevant Conversion Price (on the Redemption Date) per share multiplied by the Conversion Rate, plus any accrued but unpaid dividends on the Series G Preferred Share.

 

(hh)

“Original Issue Date” means September 25, 2019.

 

(ii)

“Ownership Certifications” means signed certifications of ownership satisfying the requirements of U.S. Treasury Regulation Section 1.883-4, which certifications are valid, or will be valid immediately following provision of the certifications, on such Mandatory Redemption Date.

 

(jj)

“Parity Securities” has the meaning set forth in Section 8(b) of this Certificate of Designations.

 

(kk)

“Paying Agent” means Computershare Inc., acting in its capacity as paying agent for the Series G Preferred Shares, and its respective successors and assigns, or any other payment agent appointed by the Company (which may be the Company).

 

(ll)

“Permitted Redemption Amount” shall mean, as of any Mandatory Redemption Date, an amount equal to (1) the maximum number of Shyris Shipping Series B Preferred Shares that could be issued on such date such that the Redemption Quotient does not exceed the Discretionary Redemption Percentage, multiplied by (2) US$10.00.

 

(mm)

“Person” means a legal person, including any individual, company, corporation, estate, partnership, joint venture, association, joint-stock company, limited liability company, trust or entity.

 

(nn)

“Preferred Shares” means any of the Company’s share capital, however designated, which entitles the holder thereof to a preference with respect to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of the Company’s affairs, over shares of the Common Shares, including, without limitation, the Series A Preferred Shares, the Series C Preferred Shares, the Series D Preferred Shares, the Series E Preferred Shares, the Series F Preferred Shares and the Series G Preferred Shares.

 

(oo)

“Principal Market” means the New York Stock Exchange, Inc., the NASDAQ Global Select Market, the NASDAQ Global Market, or the NASDAQ Capital Market, whichever is at the relevant time the principal trading exchange or market for the Common Shares.

 

(pp)

“Record Date” has the meaning set forth in Section 2(d) of this Certificate of Designations.

 

(qq)

“Redemption Date” means a Mandatory Redemption Date, if conducted pursuant to Section 6(a)(ii), or otherwise on such date as set by the Company in accordance with this Certificate of Designations.

 

(rr)

“Redemption Notice” has the meaning set forth in Section 6(c) of this Certificate of Designations.

 

(ss)

“Redemption Price” has the meaning set forth in Section 6(b) of this Certificate of Designations.

 

(tt)

“Redemption Quotient” means, as of any Mandatory Redemption Date, an amount equal to (1) the sum of (a) the fair market value of the outstanding Shyris Shipping Series B Preferred Shares with respect to which Shyris Shipping has not received Ownership Certifications and (b) the fair market value of the Shyris Shipping Series B Preferred Shares to be issued on such Mandatory Redemption

 

12

Date with respect to which Shyris Shipping has not received Ownership Certifications, divided by (2) the sum of (a) the fair market value of the outstanding shares of Shyris Shipping, including Shyris Shipping Series B Preferred Shares, and (b) the fair market value of the Shyris Shipping Series B Preferred Shares to be issued on such Mandatory Redemption Date; in each case with such fair market value determined by an independent expert with expertise in stock valuation; provided, that, if the Company and all of the Holders so agree in writing, the Redemption Quotient as of any specified Mandatory Redemption Date shall be zero.

 

(uu)

“Redemption Shortfall Amount” means (1) the Maximum Aggregate Redemption Price reduced by (2) the aggregate Mandatory Redemption Price previously paid pursuant to Section 6(a)(ii) of this Certificate of Designations.

 

(vv)

“Registrar” means Computershare Inc., acting in its capacity as registrar for the Series G Preferred Shares, and its successors and assigns or any other registrar appointed by the Company.

 

(ww)

“Securities Depository” means The Depository Trust Company, and its successors or assigns or any other securities depository selected by the Company.

 

(xx)

“Senior Securities” has the meaning set forth in Section 8(c) of this Certificate of Designations.

 

(yy)

“Series A Preferred Shares” means the Company’s Series A Junior Participating Preferred Shares, par value US$1.00 per share.

 

(zz)

“Series C Preferred Shares” means the Company’s 8.875% Series C Cumulative Redeemable Perpetual Preferred Shares, par value US$1.00 per share, liquidation preference US$25.00 per share.

 

(aaa)

“Series D Preferred Shares” means the Company’s 8.75% Series D Cumulative Redeemable Perpetual Preferred Shares, par value US$1.00 per share, liquidation preference US$25.00 per share.

 

(bbb)

“Series E Preferred Shares” means the Company’s 9.25% Series E Fixed-to-Floating Rate Cumulative Redeemable Perpetual Preferred Shares, par value US$1.00 per share, liquidation preference US$25.00 per share.

 

(ccc)

“Series F Preferred Shares” means the Company’s Series F Fixed-to-Floating Rate Cumulative Redeemable Perpetual Preferred Shares, par value US$1.00 per share, liquidation preference US$25.00 per share.

 

(ddd)

“Series G Liquidation Preference” means a Liquidation Preference for each Series G Preferred Share initially equal to US$10.00 per share, which Liquidation Preference shall be (i) increased by the per share amount of any accrued and unpaid dividends thereon to (but not including) the date fixed for payment of such amount (including the dividends that accrued pursuant to Section 2(a) and Section 2(b)) and (ii) decreased upon a distribution in connection with a Liquidation Event described in Section 5 of this Certificate of Designations, which does not result in payment in full of the Liquidation Preference of such Series G Preferred Share.

 

(eee)

“Series G Preferred Shares” has the meaning set forth in Section 1(a) of this Certificate of Designations.

 

(fff)

“Share Purchase Agreement” means that certain share purchase agreement dated September 23, 2019 among the Company, Shyris Shipping and the purchaser named therein.

 

(ggg)

“Shyris Shipping” means Shyris Shipping Company S.A., a Marshall Islands corporation (or its successor).

 

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(hhh)

“Shyris Shipping Failure” means that the conditions set forth in Section 7.4 of the Share Purchase Agreement shall not have been satisfied by the dates therein specified.

 

(iii)

“Shyris Shipping Failure Redemption Price” means a price per Series G Preferred Share equal to a U.S. dollar amount providing for a return of 7.75% per annum on an actual 360-day basis on the Stated Liquidation Preference, with such return calculation made on a share-by-share basis and taking into account all cash dividends actually received on the relevant Series G Preferred Share.

 

(jjj)

“Shyris Shipping Series B Preferred Shares” means the Series B Cumulative Redeemable Perpetual Preferred Shares of Shyris Shipping with the terms set forth in that Statement of Designation dated September 25, 2019.

 

(kkk)

“Stated Liquidation Preference” means a liquidation preference for each of the Series G Preferred Shares equal to US$10.00 per share.

 

(lll)

“Subsequent Mandatory Redemption Date” means, so long as the Redemption Shortfall Amount is greater than zero, (i) the six-month anniversary of the First Mandatory Redemption Date, (ii) each subsequent six-month anniversary of the prior Subsequent Mandatory Redemption Date prior to the five-year anniversary of the Original Issue Date, and (iii) the five-year anniversary of the Original Issue Date; provided that, if the Redemption Shortfall Amount is equal to zero on a Subsequent Mandatory Redemption Date, there shall be no further Subsequent Mandatory Redemption Dates.

 

(mmm)

“Trading Day” means any day other than a Saturday or a Sunday on which the Common Shares are traded on the Principal Market, provided, however, that “Trading Day” shall not include any day on which the Common Shares are scheduled to trade on such exchange or market for less than 4.5 hours or any day that the Common Shares are suspended from trading for any reason (i) for more than three (3) consecutive or non-consecutive hours, or (ii) during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00:00 p.m., New York time).

 

(nnn)

“Transfer Agent” means Computershare Trust Company, N.A., acting in its capacity as transfer agent for the Series G Preferred Shares, and its respective successors and assigns or any other transfer agent appointed by the Company.

 

(ooo)

“Vessel” means each of (i) MEDITERRANEAN VOYAGER (or any successor name to the same ship), with IMO No. 9857858, (ii) CARIBBEAN VOYAGER (or any successor name to the same ship), with IMO No. 9857860, (iii) H.N. 8041 (or any successor name to the same ship), with IMO No. 9878890, and (iv) H.N. 8042 (or any successor name to the same ship), with IMO No. 9878905.

 

(ppp)

“VWAP” means the volume weighted average price (the aggregate sales price of all trades of Common Shares during each period divided by the total number of Common Shares traded during such period) of the Common Shares as reported by Bloomberg (i.e., VWAP as reported by Bloomberg (TNP US Equity VWAP <GO>)).

For all purposes relevant to this Certificate of Designations: the terms defined in the singular have a comparable meaning when used in the plural and vice versa; whenever the words “include,” “includes,” or “including” are used, they are deemed followed by the words “without limitation;” all references to number of shares, amounts per share, prices, and the like shall be subject to appropriate adjustment for share splits, share combinations, share dividends and similar events; and, except as otherwise set forth in this Certificate of Designations, if any event under this Certificate of Designations occurs on a day that is not a Business Day, such event shall be deemed to occur on the first Business Day after such date. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.

 

 

14

Section 10. Fractional Shares. No Series G Preferred Shares may be issued or redeemed in fractions of a share.

Section 11. No Sinking Fund. The Series G Preferred Shares shall not have the benefit of any sinking fund.

Section 12. Record Holders. To the fullest extent permitted by applicable law, the Company, the Registrar, the Transfer Agent and the Paying Agent may deem and treat the Holder of any Series G Preferred Shares as the true, lawful and absolute owner thereof for all purposes, and neither the Company nor the Registrar, the Transfer Agent or the Paying Agent shall be affected by any notice to the contrary.

Section 13. Notices. All notices or communications in respect of the Series G Preferred Shares shall be sufficiently given if given in writing and delivered in person or by first class mail, postage prepaid, or if given in such other manner as may be permitted in this Certificate of Designations, in the Memorandum of Association and Bye-laws or by applicable law.

Section 14. No Impairment. The Company shall not, by amendment of this Certificate of Designations, through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid or reduce the observance or performance of any of the terms to be observed or performed under this Certificate of Designations by the Company, but shall at all times in good faith assist in the carrying out of all the provisions of this Certificate of Designation and in the taking of all such action as may be necessary or appropriate in order to protect the redemption, voting, conversion, dividend and other rights of the Holders against impairment.

Section 15. Taxes. The Company shall pay any and all issue, stamp and other taxes that may be payable in respect of any issuance of Series G Preferred Shares. The Company shall not, however, pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of any Series G Preferred Shares. The Company shall pay any and all issue, stamp and other taxes that may be payable in respect of any conversion of Series G Preferred Shares. The Company shall not, however, pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of any certificate of Common Shares in a name other than the Holder of the Series G Preferred Shares so converted, and the Company shall not be required to issue or deliver any such certificate of Common Shares unless and until the Holder converting such Series G Preferred Shares requesting the issue thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid.

Section 16. Lost or Stolen Certificates. Upon receipt by the Company of evidence of the loss, theft, destruction or mutilation of any Series G Preferred Share certificates, and (in the case of loss, theft or destruction) of indemnity or security reasonably satisfactory to the Company, and upon surrender and cancellation of the Series G Preferred Share certificate(s), if any, the Company shall execute and deliver new Series G Preferred Share certificate(s) of like tenor and date.

Section 17. Maturity. The Series G Preferred Shares shall be perpetual, unless redeemed or converted in accordance with this Certificate of Designations or repurchased by the Company.

Section 18. Transfer. The Series G Preferred Shares are not transferable without the consent of the Company, which it may withhold in its absolute discretion.

[Signature Page Follows]

 

15

IN WITNESS WHEREOF, TSAKOS ENERGY NAVIGATION LIMITED has caused this certificate to be signed this 25th day of September, 2019.

 

TSAKOS ENERGY NAVIGATION LIMITED
By:		/s/ Nikolas P. Tsakos
Name:		Nikolas P. Tsakos
Title:		President and Chief Executive Officer

Exhibit 99.2

STATEMENT OF DESIGNATION OF THE RIGHTS, PREFERENCES AND PRIVILEGES OF

SERIES B CUMULATIVE REDEEMABLE PERPETUAL PREFERRED SHARES OF

SHYRIS SHIPPING COMPANY S.A.

(Pursuant to Section 35 of the Business Corporations Act of the Republic of the Marshall Islands)

The undersigned, Georgios Saroglou, and Athanasios Korvesis, do hereby certify:

1. That they are the duly elected and acting President and Secretary, respectively, of Shyris Shipping Company S.A., a Marshall Islands corporation (the “Company”).

2. That pursuant to the authority conferred by the Company’s Articles of Incorporation, the Board on September 23, 2019 adopted the following resolution authorizing the creation, designation and issuance of a series of preferred stock with the relative rights, preferences and privileges as stated below, with the voting and other powers, preferences and relative, participating, optional or special rights and qualifications, limitations and restrictions thereof, of the shares of such series, as follows.

Section 1. Designation and Amount: Securities Depository.

(a) Designation Amount. There shall be created out of its authorized, unissued and undesignated Preferred Shares authorized to be issued pursuant to the Articles of Incorporation, a series of Preferred Shares, designated as the “Series B Cumulative Redeemable Perpetual Preferred Shares,” par value US$0.001 per share (the “Series B Preferred Shares”). The number of authorized Series B Preferred Shares shall initially be 3,500,000, which number the Board may from time to time decrease (but not below the number of shares then outstanding), or, with the consent of the Holders as required pursuant to this Statement of Designation, increase. Each Series B Preferred Share shall be identical in all respects to every other Series B Preferred Share, except as to the respective dates that any such Series B Preferred Shares are issued, including the date from which dividends or the Agency Fee may begin accruing on such Series B Preferred Shares and any changes in the Series B Liquidation Preference resulting therefrom.

(b) Securities Depository. The Series B Preferred Shares will be represented by one or more certificates registered in the name of the Holder, or if mutually agreed by the Company and the Holder, all or a portion of the Series B Preferred Shares may be issued in book-entry form or a single certificate registered in the name of the Securities Depository or its nominee. If and so long as the Securities Depository shall have been appointed and is serving, payments and communications made by the Company to Holders of the Series B Preferred Shares represented by a certificate registered in the name of the Securities Depository shall be made by making payments to, and communicating with, the Securities Depository.

Section 2. Dividends and Distributions.

(a) Dividends. Dividends on each Series B Preferred Share shall be cumulative and shall accrue (whether or not earned or declared, whether or not there are funds legally available for the payment thereof, whether the Company has any earnings or net profits, and whether or not restricted by the terms of any of the Company’s indebtedness outstanding at any time) at a rate equal to 7.50% per annum of the Deemed Purchase Price per share, subject to adjustment pursuant to Section 2(c) hereof (the “Dividend Rate”), from the Original Issue Date (or, for any subsequently issued and newly outstanding shares, from the Dividend Payment Date immediately preceding the issuance date of such shares until such time as the Company pays the dividend in cash or redeems the shares in full in accordance with Section 6 below. Holders shall be entitled to receive dividends from time to time out of any assets of the Company legally available for the payment of dividends at the Dividend Rate per share, when, as, and if declared by the Board of Directors. Dividends, to the extent declared to be paid by the Company in accordance with this Statement of Designation, shall be paid in cash semi-annually on each Dividend Payment Date. Dividends shall accumulate in each Dividend Period from and including the preceding Dividend Payment Date (other than the initial Dividend Period, which shall commence on and include the Original Issue Date), to but excluding the next Dividend Payment Date for such Dividend Period (if the dividend is paid in full on such next Dividend Payment Date). If any Dividend Payment Date otherwise would fall on a date that is not a Business Day, declared dividends shall be paid on

the immediately succeeding Business Day, and with the accumulation of additional dividends or interest at the Dividend Rate. Dividends on the Series B Preferred Shares shall be payable based on a 360-day year consisting of twelve 30-day months. Dividends that are required by the terms of this Statement of Designation to be paid in cash shall be paid in cash unless prohibited by applicable law.

(b) Payment and Priorities of Dividends. Not later than 5:00 p.m., New York City time, on each Dividend Payment Date, the Company shall pay those dividends, if any, on the Series B Preferred Shares that shall have been declared by the Board of Directors to the Holders of record of such shares as such Holders’ names appear on the stock transfer books of the Company maintained by the Company or the applicable Registrar and Transfer Agent on the applicable record date. The record date for any dividend payment shall be three Business Days immediately preceding the applicable Dividend Payment Date. No dividend shall be declared or paid or set apart for payment on any Junior Securities for so long as there are any Series B Preferred Shares issued and outstanding. Accumulated dividends in arrears for any past Dividend Period may be declared by the Board of Directors and paid on any date fixed by the Board of Directors, whether or not a Dividend Payment Date, to Holders of the Series B Preferred Shares on the record date for such payment, which may not be more than 60 days, nor less than 15 days, before such payment date. Subject to the next succeeding sentence, if all accumulated dividends in arrears on all outstanding Series B Preferred Shares and any Parity Securities shall not have been declared and paid, or if sufficient funds for the payment thereof shall not have been set apart, payment of accumulated dividends in arrears on the Series B Preferred Shares and any such Parity Securities shall be made in order of their respective dividend payment dates, commencing with the earliest such date. If less than all dividends payable with respect to all Series B Preferred Shares and any Parity Securities are paid, any partial payment shall be made pro rata with respect to the Series B Preferred Shares and any Parity Securities entitled to a dividend payment at such time in proportion to the aggregate dividend amounts remaining due in respect of such shares at such time. Holders shall not be entitled to any dividend, whether payable in cash, property or stock, in excess of full cumulative dividends. For the avoidance of doubt, dividend payments that are in arrears on the Series B Preferred Shares shall continue to accrue dividends at the Dividend Rate, and the Agency Fee is not a dividend. So long as the Series B Preferred Shares are held of record by the nominee of the Securities Depository, declared dividends shall be paid to the Securities Depository in same-day funds on each Dividend Payment Date.

(c) Dividend Rate Adjustment. If for any taxable year ending after the Series G Discretionary Redemption Percentage has been increased to 49.9%, the Company is obligated to pay U.S. transportation tax under Section 887 of the U.S. Internal Revenue Code of 1986, as amended, as a result of failing to qualify for the 883 Exemption for such tax year, and Parent has provided the Company with a signed certification of ownership satisfying the requirements of U.S. Treasury Regulation Section 1.883-4, which certificate is and remains valid for such taxable year, then the Dividend Rate applicable for the twelve-month period (the “Subsequent Period”) immediately succeeding the final determination of the amount of such tax obligation (the “US Tax Liability”) shall be reduced by an amount such that the aggregate amount of dividends payable by the Company on the Series B Preferred Shares during such Subsequent Period is reduced by an amount equal to 50% of such US Tax Liability (the “Dividend Rate Adjustment”). The foregoing Dividend Rate Adjustment shall not apply during any period (1) after the issuance of Series B Preferred Shares pursuant to Section 6(a)(ii)(C) of the Parent Series G Certificate of Designations and (2) prior to the redemption of all such Series B Preferred Shares by the Company, if for the relevant taxable year US Tax Liability would not have been imposed but for the issuance of such Series B Preferred Shares.

Section 3. Voting Rights.

(a) General. The Series B Preferred Shares shall have no voting rights except as set forth in this Section 3 or as otherwise provided by the BCA, or applicable law.

(b) Right to Elect Director. In the event that six semi-annual dividends, whether consecutive or not, payable on the Series B Preferred Shares are in arrears, the Holders shall have the right, voting separately as a class together with holders of any Parity Securities upon which like voting rights have been conferred and are exercisable, to elect one member of the Board, and the size of the Board shall be increased as needed to accommodate such change (unless the size of the Board already has been increased by reason of the election of one director by holders of Parity Securities upon which like voting rights have been conferred and with which the Series B Preferred Shares vote as a class for the election of such director). The right of such Holders to elect one member of the Board shall continue until such time as all dividends accumulated and in arrears on the Series B Preferred Shares shall have been paid in

 

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full, at which time such right shall terminate, subject to revesting in the event of each and every subsequent failure to pay six semi-annual dividends with respect to the Series B Preferred Shares as described above in this Section 3(b). Upon any termination of the right of the Holders and, if applicable, any other Parity Securities to vote as a class for such director, the term of office of the director then in office elected by such Holders and the holders of any such Parity Securities voting as a class shall terminate immediately. Any director elected by the Holders and, if applicable, any other Parity Securities shall be entitled to one vote on any matter before the Board. A person elected as a director pursuant to the foregoing provisions of this Section 3 shall be removed only by a resolution of the Holders, provided that where the holders of any Parity Securities voted together with the Holders as a class on the resolution for the election of the said person as a director, the holders of such Parity Securities shall also be entitled to vote together with the Holders as a class on any resolution for the removal of such director.

(c) Other Voting Rights. Unless the Company shall have received the affirmative vote or consent of the Holders of at least two-thirds of the outstanding Series B Preferred Shares (not to be unreasonably withheld), voting as a single class, the Company shall not:

(1) Adopt any amendment to the Articles of Incorporation or Bylaws (including by merger, consolidation or otherwise) that materially or adversely changes, alters or affects the preferences, powers or rights of the Series B Preferred Shares in any respect. For the avoidance of doubt, the following is a non-exclusive list of matters which shall be deemed to adversely affect the preferences, powers or rights of the Series B Preferred Shares: (i) any reduction of the distribution or the Agency Fee payable on the Series B Preferred Shares; any change in form of payment of dividends or the Agency Fee on the Series B Preferred Shares; any deferral of the date on which dividends or the Agency Fee on the Series B Preferred Shares will accrue; any cancellation of accrued and unpaid distributions on the Series B Preferred Shares or any interest accrued thereon (including any accrued and unpaid dividends) or on the Agency Fee; or any change in the seniority or priority rights of the Holders; (ii) any reduction of the amount payable; any change in the form of payment to the Holders upon the voluntary or involuntary liquidation, dissolution or winding up, or sale of all or substantially all of the assets, of the Company; or any change in the seniority of the Series B Liquidation Preference; and (iii) making the Series B Preferred Shares redeemable at the option of the Company, other than as set forth herein, or making the Series B Preferred Shares exchangeable or convertible into another security (including by way of merger).

(2) Adopt any amendment to this Statement of Designation.

(3) Merge or consolidate with any Person.

(4) Create or issue any Parity Securities (including Series B Preferred Shares) or Senior Securities, except that the Company may issue (but not reissue) all authorized Series B Preferred Shares to the Holder or its Affiliates.

(5) Issue any Junior Securities to the extent such issuance would result in Parent, directly or indirectly through one or more wholly-owned subsidiaries, owning less than 50.1% of the issued and outstanding Common Shares of the Company, other than pursuant to a pledge pursuant to the Senior Loan Agreements.

(6) Split, combine, reverse split or undertake a similar action with respect to the Series B Preferred Shares.

(7) Nor shall it permit any subsidiary of the Company to, incur or assume or guarantee any indebtedness, guarantee obligation or similar event (even intra group), or pledge, transfer or sell shares of any subsidiary of the Company (whether directly, by merger or otherwise), in each case except pursuant to the Senior Loan Agreements.

(8) Permit any shareholder to pledge shares of the Company other than pursuant to the Senior Loan Agreements.

(9) Conduct any business other than directly or indirectly owning, operating, financing, managing, chartering and selling the Vessels, whether directly or indirectly through subsidiaries, and the Company will not acquire, own, hold, lease, operate or manage any assets other than the Vessels or subsidiaries owning the Vessels.

 

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(10) Redeem, repurchase or otherwise acquire any shares or other securities of the Company, other than Series B Preferred Shares.

(11) Permit Parent to transfer Common Shares to the extent such transfer would result in Parent, directly or indirectly through one or more wholly-owned subsidiaries, owning less than 50.1% of the issued and outstanding Common Shares of the Company, other than pursuant to a pledge pursuant to the Senior Loan Agreements.

(12) And shall not permit any of its subsidiaries to: (a) file a voluntary petition in bankruptcy on behalf of the Company or a subsidiary of the Company; (b) consent to the filing of any involuntary petition in bankruptcy against the Company or a subsidiary of the Company; (c) file any petition seeking, or consenting to, the reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency; (d) consent to the appointment of a receiver, liquidator, trustee or other similar official of the Company or a substantial part of its property or a subsidiary or a substantial part of its property; or (e) dissolve, terminate or wind up the Company or a subsidiary of the Company; provided, however, that if the Holders receive from the Board for and on behalf of the Company certification that the Company has received a written report, from a major accounting or financial advisory firm, that the Company cannot, or that there are substantial doubts regarding its ability to, continue as a “going concern” or that its liabilities exceeds the market value of its assets, then no affirmative vote or consent of the Holders is required for any of the actions contained in clauses (a) - (e). This clause (12) shall not apply (a) at any time after the fourth anniversary of the date of the original filing of this Statement of Designation with the Marshall Islands Registrar of Corporations, or (b) at any time after the sum of the following amounts, in each case since the original filing date of this Statement of Designation, equals or exceeds US$35 million: (i) the aggregate amount of dividend payments actually received on all Series B Preferred Shares and Series G Redeemable Convertible Perpetual Preferred Shares of Parent, plus (ii) the aggregate amount of all cash redemption payments made for Series B Preferred Shares and Series G Redeemable Convertible Perpetual Preferred Shares of Parent, plus (iii) the dollar amount of all common shares of the Parent issued upon conversion of Series G Redeemable Convertible Perpetual Preferred Shares of Parent, with such common shares of Parent valued at the closing price of the common shares on the date of conversion reported by the New York Stock Exchange (or other securities exchange on which the common shares of Parent are then listed).

(d) Voting Power. For any matter described in this Section 3 in which the Holders are entitled to vote as a class (whether separately or together with the holders of any Parity Securities), such Holders shall be entitled to one vote per Series B Preferred Share. Any Series B Preferred Shares held by the Company or any of its subsidiaries or Affiliates shall not be entitled to vote and shall not be deemed outstanding for purposes of determining the number of shares of Series B Preferred Shares entitled to vote.

Section 4. Reacquired Shares. Any Series B Preferred Shares may be purchased, redeemed (subject to Section 6 hereof), or otherwise acquired by the Company in any manner whatsoever. Any such purchased, redeemed or otherwise acquired Series B Preferred Shares shall be retired and canceled after the acquisition thereof. All such shares shall become authorized but unissued Preferred Shares and may be reissued as part of a new series of Preferred Shares to be created by resolution or resolutions of the Board.

Section 5. Liquidation Rights.

(a) Liquidation Event. Upon the occurrence of any Liquidation Event, Holders shall be entitled to receive out of the assets of the Company or proceeds thereof, whether from capital, surplus or earnings, (i) after satisfaction of all liabilities, if any, to creditors of the Company, (ii) after all applicable distributions of such assets or proceeds being made to or set aside for the holders of any Senior Securities then outstanding in respect of such Liquidation Event, (iii) concurrently with any applicable distributions of such assets or proceeds being made to or set aside for holders of any Parity Securities then outstanding in respect of such Liquidation Event, and (iv) before any distribution of such assets or proceeds is made to or set aside for the holders of Common Shares and any other classes or series of Junior Securities as to such distribution, a liquidating distribution or payment in full redemption of such Series B Preferred Shares in an amount equal to the Series B Liquidation Preference per share. For purposes of clarity, upon the occurrence of any Liquidation Event, (x) the holders of then outstanding Senior Securities shall be entitled to receive the applicable Liquidation Preference on such Senior Securities before any distribution shall be made to the

 

4

Holders or holders of any Parity Securities, and (y) the Holders shall be entitled to the Series B Liquidation Preference per share in cash concurrently with any distribution made to the holders of Parity Securities and before any distribution shall be made to the holders of Common Shares or any other Junior Securities. Holders shall not be entitled to any other amounts from the Company, in their capacity as Holders, after they have received the full Series B Liquidation Preference. The payment of the Series B Liquidation Preference shall be a payment in redemption of the Series B Preferred Shares such that, from and after payment of the full Series B Liquidation Preference, any such Series B Preferred Share shall thereafter be cancelled and no longer be outstanding.

(b) Partial Payment. If, in the event of any distribution or payment described in Section 5(a) above where the Company’s assets available for distribution to holders of the outstanding Series B Preferred Shares and any Parity Securities are insufficient to satisfy the applicable Liquidation Preference for such Series B Preferred Shares and Parity Securities, the Company’s then remaining assets or proceeds thereof legally available for distribution to shareholders of the Company shall be distributed among the Series B Preferred Shares and such Parity Securities, as applicable, ratably on the basis of their relative aggregate Liquidation Preferences. To the extent that the Holders receive a partial payment of their Series B Liquidation Preference, such partial payment shall reduce the Series B Liquidation Preference of their Series B Preferred Shares, but only to the extent of such amount paid.

(c) Residual Distributions. After payment of the applicable Liquidation Preference to the holders of the outstanding Series B Preferred Shares and any Parity Securities, the Company’s remaining assets and funds shall be distributed among the holders of the Common Shares and any other Junior Securities then outstanding according to their respective rights and preferences.

Section 6. (a) Redemption. The Company shall have the right at any time:

(i) on or after the first anniversary of the Initial Issuance Date to redeem the Series B Preferred Shares, in whole or in part, from any source of funds legally available for such purpose;

(ii) after the Initial Issuance Date, to redeem Series B Preferred Shares with (1) Free Cash Available for Distribution or (2) proceeds or other monies received due to events outside of the Company’s or the relevant subsidiary’s control, such as (A) insurance proceeds from the loss of a vessel (including a Vessel) (but excluding insurance proceeds to repair damages to a vessel) owned, directly or indirectly by the Company or any subsidiary, (B) proceeds from, relating to or due to the termination or cancellation of any charter or management agreement on any vessel (including a Vessel) owned, directly or indirectly by the Company or any subsidiary (other than due to the action or inaction of the Company or any subsidiary of the Company), or (C) a similar transaction or proceeds; and

(iii) after the Initial Issuance Date, to redeem such amount of the outstanding Series B Preferred Shares that the Company reasonably determines is necessary in order for the Company to comply with the 883 Limitation at such time and qualify for the exemption from taxation provided by Section 883 of the U.S. Internal Revenue Code of 1986, as amended (the “883 Exemption”).

Any such redemption shall occur on a date set by the Company (the “Redemption Date”).

(b) Redemption Price. The Company shall effect any such redemption by paying cash for each Series B Preferred Share to be redeemed equal to the applicable Series B Redemption Price for such share on such Redemption Date (the “Redemption Price”).

(c) Redemption Notice. The Company shall give notice of any redemption by mail, postage prepaid, not less than 10 days and not more than 60 days before the scheduled Redemption Date, to the Holders (as of 5:00 p.m. New York City time on the Business Day next preceding the day on which notice is given) of any Series B Preferred Shares to be redeemed as such Holders’ names appear on the Company’s stock transfer books maintained by Company or the applicable Registrar and Transfer Agent and at the address of such Holders shown therein. Such notice (the “Redemption Notice”) shall state: (1) the Redemption Date, (2) the number of Series B Preferred Shares to be redeemed and, if less than all outstanding Series B Preferred Shares are to be redeemed, the number (and the identification) of shares to be redeemed from such Holder, (3) the Redemption Price, (4) the place where the Series B Preferred Shares are to be redeemed and shall be presented and surrendered for payment of the Redemption Price therefor and (5) that dividends and the Agency Fee on the shares to be redeemed shall cease to accumulate from and after such Redemption Date.

 

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(d) Effect of Redemption; Partial Redemption. If the Company elects to redeem fewer than all of the outstanding Series B Preferred Shares, the number of shares to be redeemed shall be determined by the Company, and such shares shall be redeemed pro rata or by lot or by any other equitable method as the Securities Depository or the Company, as applicable, shall determine, with adjustments to avoid redemption of fractional shares. The aggregate Redemption Price for any such partial redemption of the outstanding Series B Preferred Shares shall be allocated correspondingly among the redeemed Series B Preferred Shares. The Series B Preferred Shares not redeemed shall remain outstanding and entitled to all the rights and preferences provided in this Statement of Designation.

(e) Redemption Funds. If the Company gives or causes to be given a Redemption Notice, the Company shall deposit funds sufficient to redeem the Series B Preferred Shares as to which such Redemption Notice shall have been given no later than 5:00 p.m. New York City time on the Business Day immediately preceding the Redemption Date, and shall give the Paying Agent irrevocable instructions and authority to pay the Redemption Price to the Holders of the Series B Preferred Shares to be redeemed upon surrender or deemed surrender (which shall occur automatically if the certificate representing such shares is issued in the name of the Securities Depository or its nominee) of the certificates therefor as set forth in the Redemption Notice. If the Redemption Notice shall have been given, from and after the Redemption Date, unless the Company defaults in providing funds sufficient for such redemption at the time and place specified for payment pursuant to the Redemption Notice, all dividends and Agency Fee on such Series B Preferred Shares to be redeemed shall cease to accumulate and all rights of Holders of such shares as the Company’s shareholders shall cease, except the right to receive the Redemption Price, and such shares shall not thereafter be transferred on the Company’s stock transfer books maintained by the Company or the applicable Registrar and Transfer Agent or be deemed to be outstanding for any purpose whatsoever. The Company shall be entitled to receive from the Paying Agent the interest income, if any, earned on such funds deposited with the Paying Agent (to the extent that such interest income is not required to pay the Redemption Price of the Series B Preferred Shares to be redeemed), and the Holders of any shares so redeemed shall have no claim to any such interest income. Any funds deposited with the Paying Agent hereunder by the Company for any reason, including redemption of Series B Preferred Shares, that remain unclaimed or unpaid after two years after the applicable Redemption Date or other payment date, shall be, to the extent permitted by law, repaid to the Company upon its written request after which repayment the Holders of the Series B Preferred Shares entitled to such redemption or other payment shall have recourse only to the Company. Notwithstanding any Redemption Notice, there shall be no redemption of any Series B Preferred Shares called for redemption until funds sufficient to pay the full Redemption Price of such shares shall have been deposited by the Company with the Paying Agent or in an applicable bank account for use.

(f) Certificate. Any Series B Preferred Shares that are redeemed or otherwise acquired by the Company, if deemed cancelled by the Company, shall constitute Preferred Shares subject to designation by the Board of Directors as set forth in the Articles of Incorporation. If only a portion of the Series B Preferred Shares represented by a certificate shall have been called for redemption, upon surrender of the certificate to the Paying Agent (which shall occur automatically if the certificate representing such shares is registered in the name of the Securities Depository or its nominee), the Paying Agent shall issue to the Holder of such shares a new certificate (or adjust the applicable book-entry account) representing the number of Series B Preferred Shares represented by the surrendered certificate that have not been called for redemption.

(g) Redemption Priority. Notwithstanding anything to the contrary in this Section 6, in the event that full cumulative dividends on the Series B Preferred Shares and any Parity Securities shall not have been paid or declared and set apart for payment, the Company shall not be permitted to repurchase, redeem or otherwise acquire, in whole or in part, any Series B Preferred Shares or Parity Securities except pursuant to a purchase or exchange offer made on the same terms to all holders of Series B Preferred Shares, unless otherwise approved in writing in advance by the Holders of all Series B Preferred Shares then issued and outstanding. The Company shall not be permitted to redeem, repurchase or otherwise acquire any Common Shares or any other Junior Securities unless full cumulative dividends on the Series B Preferred Shares and any Parity Securities for all prior and the then-ending Dividend Periods shall have been paid or declared and set apart for payment. If the Company is required to redeem any Series B Preferred Shares, then the Company will take all reasonable action within its means to maximize the assets available for redeeming such Series B Preferred Shares and will use all such assets available therefor (and any additional assets that from time to time become available).

 

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(h) Mandatory Redemption upon Sale of Vessel. If the Company or any of its subsidiaries, directly or indirectly, sells or otherwise voluntarily disposes (whether directly, by merger, or otherwise) one or more vessels (including a Vessel) or a stake in any vessel owning company (or a transaction with the same or a similar effect as any of the foregoing), or causes (through action or inaction) a vessel to be damaged or a charter or management agreement relating to any vessel) to be terminated or breached, then all net proceeds (after payment of related expenses and associated debt) received therefrom shall be used to redeem Series B Preferred Shares pursuant to Section 6(b)-(g).

Section 7. Rank. The Series B Preferred Shares shall be deemed to rank:

(a) Senior. Senior to (i) all classes of Common Shares and (ii) any other class or series of capital stock established after the Original Issue Date by the Board of Directors, the terms of which class or series expressly provide that it is made junior to the Series B Preferred Shares as to dividend distributions and distributions upon any Liquidation Event (collectively referred to with the Common Shares as “Junior Securities”);

(b) Parity. On a parity with (i) the Series B Preferred Shares (including any additional Series B Preferred Shares issued after the Original Issue Date); and (ii) any class or series of capital stock established after the Original Issue Date by the Board of Directors, the terms of which class or series are not expressly subordinated or senior to the Series B Preferred Shares as to dividend distributions and distributions upon any Liquidation Event (collectively referred to as “Parity Securities”); and

(c) Junior. Junior to (i) all of the Company’s indebtedness and other liabilities with respect to assets available to satisfy claims against the Company and (ii) any class or series of capital stock established after the Original Issue Date by the Board of Directors, the terms of which class or series expressly provide that it ranks senior to the Series B Preferred Shares as to dividend distributions and distributions upon any Liquidation Event (collectively referred to as “Senior Securities”).

Section 8. Definitions. As used herein with respect to the Series B Preferred Shares:

 

(a)

“Affiliate” means, in regard to a specified Person, a Person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the Person specified. As used in this definition, “control” (including the terms controlling, controlled by and under common control with) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.

 

(b)

“Agency Fee” has the meaning set forth in Section 18 of this Statement of Designation.

 

(c)

“Articles of Incorporation” means the articles of incorporation of the Company, as they may be amended from time to time consistent with this Statement of Designation, and shall include this Statement of Designation.

 

(d)

“BCA” means the Marshall Islands Business Corporations Act, as amended from time to time.

 

(e)

“Board” means the board of directors of the Company or any authorized committee thereof.

 

(f)

“Business Day” means a day on which the New York Stock Exchange is open for trading and which is not a Saturday, a Sunday or other day on which banks in New York City are authorized or required by law to close.

 

(g)

“Bylaws” means the Bylaws of the Company, as they may be amended from time to time.

 

(h)

“Common Shares” means the common shares of the Company, par value US$0.001 per share, and any other outstanding class of common shares of the Company.

 

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(i)

“Company” has the meaning set forth in the introductory paragraph of this Statement of Designation.

 

(j)

“Deemed Purchase Price” means US$10.00 per share, subject to adjustment in the event of a stock split, share combinations, stock dividend or similar event applicable to the Series B Preferred Shares.

 

(k)

“Dividend Payment Date” means each March 1 and September 1 of each year.

 

(l)

“Dividend Period” means a period of time commencing on and including a Dividend Payment Date (other than the initial Dividend Period, which shall commence on and include the Original Issue Date) and ending on and including the calendar day next preceding the next Dividend Payment Date.

 

(m)

“Dividend Rate” has the meaning set forth in Section 2(a) of this Statement of Designation.

 

(n)

“Dividend Rate Adjustment” has the meaning set forth in Section 2(c) of this Statement of Designation.

 

(o)

“Free Cash Available for Distribution” means the Company’s consolidated operating cash flow less any amounts required to pay cash expenses and capital expenditures, service debt and maintain reserves for drydockings, surveys and other purposes as the Board may from time to time determine.

 

(p)

“Holder” means the Person in whose name the Series B Preferred Shares are registered on the stock register of the Company maintained by the Company or, if applicable, the Registrar and Transfer Agent.

 

(q)

“Initial Issuance Date” means the earlier of (x) the earlier of (i) the date on which the last of the Vessels is delivered from the relevant shipyard and (ii) February 1, 2021 and (y) the date Series B Preferred Shares are first issued by the Company.

 

(r)

“Junior Securities” has the meaning set forth in Section 7(a) of this Statement of Designation.

 

(s)

“Liquidation Event” means the occurrence of a liquidation, dissolution or winding up of the affairs of the Company, whether voluntary or involuntary. Neither the sale of all or substantially all of the property or business of the Company nor the consolidation, amalgamation or merger of the Company with or into any other Person, individually or in a series of transactions, shall be deemed a Liquidation Event.

 

(t)

“Liquidation Preference” means, in connection with any distribution in connection with a Liquidation Event pursuant to Section 5(a) of this Statement of Designation and with respect to any holder of any class or series of capital stock of the Company, the amount otherwise payable to such holder in such distribution with respect to such class or series of capital stock (assuming no limitation on the assets of the Company available for such distribution), including an amount equal to any accrued but unpaid dividends thereon to the date fixed for such payment, whether or not declared (if the terms of the applicable class or series of capital stock of the Company so provide). For avoidance of doubt, for the foregoing purposes the Series B Liquidation Preference is the Liquidation Preference with respect to the Series B Preferred Shares.

 

(u)

“Original Issue Date” means the date a Series B Preferred Share is first issued.

 

(v)

“Parent” means Tsakos Energy Navigation Limited, a Bermuda company, or its successor and assigns.

 

(w)

“Parity Securities” has the meaning set forth in Section 7(b) of this Statement of Designation.

 

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(x)

“Paying Agent” means either the Company or Computershare Inc., acting in its capacity as paying agent for the Series B Preferred Shares, and its respective successors and assigns or any other payment agent appointed by the Company.

 

(y)

“Person” means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint-stock company, limited liability company, trust or entity.

 

(z)

“Preferred Shares” means any of the Company’s capital stock, however designated, which entitles the holder thereof to a preference with respect to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of the Company’s affairs, over shares of the Common Shares, including, without limitation, the Series B Preferred Shares.

 

(aa)

“Redemption Date” has the meaning set forth in Section 6(a) of this Statement of Designation.

 

(bb)

“Redemption Notice” has the meaning set forth in Section 6(c) of this Statement of Designation.

 

(cc)

“Redemption Price” has the meaning set forth in Section 6(b) of this Statement of Designation.

 

(dd)

“Registrar” means Computershare Inc., acting in its capacity as registrar for the Series B Preferred Shares, and its successors and assigns or any other registrar appointed by the Company.

 

(ee)

“Securities Depository” means The Depository Trust Company, and its successors or assigns or any other securities depository selected by the Company.

 

(ff)

“Senior Loan Agreements” means (i) that certain loan agreement dated July 12, 2019 between Parent as borrower and National Australia Bank Limited as lender relating to pre- and post-facilities of up to US$56,351,760, (ii) that certain term loan facility dated August 7, 2019 among Parent as borrower, Zeus Shipping Company Ltd as guarantor, and KfW Ipex-Bank GmbH as original lender of up to US$54,386,720, and (iii) that certain term loan facility dated December 6, 2018 among Prosale Navigation S.A. and Hermes Shipping Company Ltd as joint and several borrowers, Parent as parent guarantor, The Korea Development Bank as mandated lead arranger, The Korea Development Bank as facility agent, The Korea Development Bank as security agent and The Korea Development Bank, London Branch as account bank relating to pre- and post-deliver loan facility of up to US$82,752,000.

 

(gg)

“Senior Securities” has the meaning set forth in Section 7(c) of this Statement of Designation.

 

(hh)

“Series B Liquidation Preference” means a Liquidation Preference for each Series B Preferred Share initially equal to the Series B Liquidation Preference Amount, which Liquidation Preference shall be subject to (i) increase by the per share amount of any accumulated and unpaid dividends thereon to (but not including) the date fixed for payment of such amount (whether or not such dividends shall have been declared) and (ii) decrease upon a distribution in connection with a Liquidation Event described in Section 5 of this Statement of Designation, which does not result in payment in full of the Liquidation Preference of such Series B Preferred Share.

 

(ii)

“Series B Liquidation Preference Amount” means the Deemed Purchase Price per share.

 

(jj)

“Series B Preferred Shares” has the meaning set forth in Section 1(a) of this Statement of Designation.

 

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(kk)

“Series B Redemption Percentage” means, (A) for a redemption pursuant to Section 6(a)(i) or Section 6(h) of this Statement of Designation, if the Redemption Date is:

 

a.

on or after the Initial Issuance Date, but prior to the first anniversary date of the Initial Issuance Date, 112.5%;

 

b.

on or after the first anniversary of the Initial Issuance Date, but prior to the fourth anniversary date of the Initial Issuance Date, 110%;

 

c.

on or after the fourth anniversary date of the Initial Issuance Date, but prior to the fifth anniversary date of the Initial Issuance Date, 105%; and

 

d.

on or after the fifth anniversary date of the Initial Issuance Date, 100%;

or (B) for a redemption pursuant to Section 6(a)(ii) or 6(a)(iii) of this Statement of Designation, 100%.

 

(ll)

“Series B Redemption Price” means, per Series B Preferred Share, (i) the Deemed Purchase Price multiplied by the Series B Redemption Percentage, (ii) plus accrued but unpaid dividends and (iii) less a distribution in connection with a Liquidation Event described in Section 5 of this Statement of Designation which does not result in payment in full of the Liquidation Preference of such Series B Preferred Share.

 

(mm)

“Series G Discretionary Redemption Percentage” means the Discretionary Redemption Percentage as such term is defined in the Certificate of Designations of Series G Redeemable Convertible Perpetual Preferred Shares of Parent dated September 25, 2019, as it may be amended from time to time (the “Parent Series G Certificate of Designations”).

 

(nn)

“Statement of Designation” means this Statement of Designation relating to the Series B Preferred Shares, as it may be amended from time to time in a manner consistent with this Statement of Designation, the Articles of Incorporation, the Bylaws and the BCA.

 

(oo)

“Subsequent Period” has the meaning set forth in Section 2(c) of this Statement of Designation.

 

(pp)

“Transfer Agent” means Computershare Trust Company, N.A., acting in its capacity as transfer agent for the Series B Preferred Shares, and its respective successors and assigns or any other transfer agent appointed by the Company.

 

(qq)

“US Tax Liability” has the meaning set forth in Section 2(c) of this Statement of Designation.

 

(rr)

“Vessel” means each of (i) MEDITERRANEAN VOYAGER (or any successor name to the same ship), with IMO No. 9857858, (ii) CARIBBEAN VOYAGER (or any successor name to the same ship), with IMO No. 9857860, (iii) H.N. 8041 (or any successor name to the same ship), with IMO No. 9878890, and (iv) H.N. 8042 (or any successor name to the same ship), with IMO No. 9878905.

 

(ss)

“883 Exemption” has the meaning set forth in Section 6(a)(iii) of this Statement of Designation.

 

(tt)

“883 Limitation” means an amount that equals 49.9% of the fair market value of all outstanding shares of the Company, at any given time.

For all purposes relevant to this Statement of Designation: the terms defined in the singular have a comparable meaning when used in the plural and vice versa; whenever the words “include,” “includes,” or “including” are used, they are deemed followed by the words “without limitation;” all references to number of shares, amounts per share, prices, and the like shall be subject to appropriate adjustment for share splits, share combinations, share dividends and similar events; and, except as otherwise set forth in this Statement of Designation, if any event under this Statement of Designation occurs on a day that is not a Business Day, such event shall be deemed to occur on the first Business Day after such date. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.

 

10

Section 9. Fractional Shares. No Series B Preferred Shares may be issued or redeemed in fractions of a share.

Section 10. No Sinking Fund. The Series B Preferred Shares shall not have the benefit of any sinking fund.

Section 11. Record Holders. To the fullest extent permitted by applicable law, the Company, the Registrar, the Transfer Agent and the Paying Agent may deem and treat any Holder of any Series B Preferred Share as the true, lawful and absolute owner thereof for all purposes, and neither the Company nor the Registrar, the Transfer Agent or the Paying Agent shall be affected by any notice to the contrary.

Section 12. Notices. All notices or communications in respect of the Series B Preferred Shares shall be sufficiently given if given in writing and delivered in person or by first class mail, postage prepaid, or if given in such other manner as may be permitted in this Statement of Designation, in the Articles of Incorporation and Bylaws or by applicable law.

Section 13. Transfer. No Holder may transfer any Series B Preferred Shares without the prior written consent of Parent, which consent shall not be unreasonably withheld. The previous sentence shall not apply once an event of default has occurred under any indebtedness or similar obligation of Parent, the Company or any one or more of their subsidiaries; provided that, no Holder shall transfer Series B Preferred Shares to a competitor of Parent. A “competitor of Parent” means any independent owner or operator of crude oil, petroleum product or LNG tankers and its affiliates, provided that a “competitor of Parent” shall not include any financial investor or private equity fund, hedge fund or similar investor (excluding any such investor or fund whose principal business is engaging in maritime shipping) regardless of the assets that they may own. The Company shall promptly inform each Holder when an event of default has occurred under any indebtedness or similar obligation of Parent, the Company or any one or more of their subsidiaries, and when such event of default has ceased.

Section 14. No Impairment. The Company shall not, by amendment of this Statement of Designation, through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid or reduce the observance or performance of any of the terms to be observed or performed under this Statement of Designation by the Company, but shall at all times in good faith assist in the carrying out of all the provisions of this Statement of Designation and in the taking of all such action as may be necessary or appropriate in order to protect the redemption, voting, dividend and other rights of the Holders against impairment.

Section 15. Taxes. The Company shall pay any and all issue, stamp and other taxes that may be payable in respect of any issuance of Series B Preferred Shares. The Company shall not, however, pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of any Series B Preferred Shares.

Section 16. Lost or Stolen Certificates. Upon receipt by the Company of evidence of the loss, theft, destruction or mutilation of any Series B Preferred Share certificates, and (in the case of loss, theft or destruction) of indemnity or security reasonably satisfactory to the Company, and upon surrender and cancellation of the Series B Preferred Share certificate(s), if any, the Company shall execute and deliver new Series B Preferred Share certificate(s) of like tenor and date.

Section 17. Maturity. The Series B Preferred Shares shall be perpetual, unless redeemed in accordance with this Statement of Designation.

Section 18. Agency Fee. The Company shall pay each Holder as such Holders’ names appear on the stock transfer books of the Company maintained by the Company or the applicable Registrar and Transfer Agent on each twelve-month anniversary of the Initial Issuance Date (to holders of record as of the next preceding Business Day) an agency fee in cash at a rate equal to 0.25% per annum of the Deemed Purchase Price per share of each Series B Preferred Share (the “Agency Fee”) and the pro rata portion of any accrued but unpaid Agency Fee shall be paid to the Holder upon redemption of Series B Preferred Shares pursuant to Section 6 of this Statement of Designation or upon a Liquidation Event. The Agency Fee shall be paid in cash unless prohibited by applicable law, without regard to the availability of funds.

[Signature Page Follows]

 

11

IN WITNESS WHEREOF, each of the undersigned, being duly authorized thereto, does hereby affirm that this Statement of Designation is the act and deed of the Company and that the facts herein stated are true, and accordingly has hereunto set his or her hand on September 25, 2019.

 

/s/ Georgios Saroglou

Name: Georgios Saroglou

Title: President

/s/ Athanasios Korvesis

Name: Athanasios Korvesis

Title: Secretary

Exhibit 99.3

REGISTRATION RIGHTS AGREEMENT

This REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of September 25, 2019, among Tsakos Energy Navigation Limited, a Bermuda exempted company limited by shares (the “Company”), and each of the person(s) set forth on Schedule A to this Agreement (the “Shareholders”).

WHEREAS, this Agreement is made in connection with the entry into the Share Purchase Agreement (the “Purchase Agreement”), dated September 23, 2019, by and among the Company, Shyris Shipping Company S.A. and the Shareholders; and

WHEREAS, the Company has agreed to provide the Shareholders with certain registration rights with respect to its shares of Common Stock (as hereinafter defined) for the benefit of the Shareholders pursuant to the Purchase Agreement.

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valid consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement hereby agree as follows:

1. Certain Definitions.

In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following meanings:

“Affiliate” of any Person means any other Person which directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person.

“Business Day” means a day on which the New York Stock Exchange is open for trading and which is not a Saturday, a Sunday or other day on which banks in New York City are authorized or required by law to close.

“Common Stock” means common shares, par value $1.00 per share, of the Company, including common shares issuable upon conversion of or in exchange for preferred equity or other securities of the Company or issuable in exchange for or with respect to the common shares, par value $1.00 per share, of the Company by way of a stock dividend, stock split or combination of shares or in connection with a reclassification, recapitalization, exchange, merger, consolidation or other reorganization, including common shares issuable upon conversion of the Company’s Series G Redeemable Convertible Perpetual Preferred Shares, par value $1.00 per share (the “Series G Preferred Shares”).

“Control,” including the terms “controlling,” “controlled by” and “under common control with,” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting shares, by contract or otherwise. A Person who is the owner of 20% or more of the outstanding voting shares of any company, corporation, limited liability company, partnership, unincorporated association or other entity shall be presumed, for purposes of this Agreement, to have control of such entity, in the absence of proof by a preponderance of the evidence to the

contrary. Notwithstanding the foregoing, a presumption of control shall not apply where such Person holds voting shares, in good faith and not for the purpose of circumventing this provision, as an agent, bank, broker, nominee, custodian or trustee for one or more owners who do not individually or as a group have control of such entity.

“Dissolution” has the meaning set forth in Section 5 hereof.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Governmental Entity” means any national, federal, state, municipal, local, territorial, foreign or other government or any department, commission, board, bureau, agency, regulatory authority or instrumentality thereof, or any court, judicial, administrative or arbitral body or public or private tribunal.

“Holder” means any Person that owns Registrable Shares, including the Shareholders, and their Affiliates on the date hereof. For purposes of this Agreement, the Company may deem and treat the registered holder of Registrable Shares as the Holder and absolute owner thereof, and the Company shall not be affected by any notice to the contrary.

“Losses” has the meaning set forth in Section 6(a) hereof.

“Person” means any individual, sole proprietorship, partnership, limited liability company, joint venture, trust, incorporated or unincorporated organization, association, company, corporation, institution, public benefit corporation, Governmental Entity or any other entity.

“Prospectus” means the prospectus or prospectuses included in any Registration Statement, as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Shares covered by such Registration Statement and by all other amendments and supplements to the prospectus, including post-effective amendments and all material incorporated by reference in such prospectus or prospectuses.

“Registrable Shares” means shares of Common Stock received or receivable upon the conversion of the Series G Preferred Shares of the Company held by the Shareholders, or any Affiliate of the Shareholders or acquired pursuant to the Purchase Agreement or any other document referred to therein, or any shares of any successor or acquiror of the Company issued in exchange or substitution for any of the foregoing in connection with any acquisition, merger, combination or similar transaction involving the Company or any successor of the Company, or any transferee thereof; provided, however, that Registrable Shares shall not include any securities sold by a Person to the public either pursuant to a Registration Statement or Rule 144.

“Registration Expenses” has the meaning set forth in Section 4(a) hereof.

“Registration Statement” means any registration statement of the Company which covers any of the Registrable Shares pursuant to the provisions of this Agreement, including the Prospectus, amendments and supplements to such Registration Statement, including post-effective amendments, all exhibits and all materials incorporated by reference in such Registration Statement.

 

2

“SEC” means the U.S. Securities and Exchange Commission.

“Securities Act” means the Securities Act of 1933, as amended.

“Shelf Registration” has the meaning set forth in Section 2(a) hereof.

“Suspension Notice” has the meaning set forth in Section 3(d) hereof.

“Trading Day” means any day on which the Common Stock is traded on the principal securities exchange or securities market on which the Common Stock is then traded; provided that “Trading Day” shall not include any day on which the Common Stock is scheduled to trade on such exchange or market for less than 4.5 hours or any day that the Common Stock is suspended from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00:00 p.m., New York Time).

2. Shelf Registration.

(a) Not later than 30 days of the date hereof, the Company shall file a Registration Statement on Form F-3 (or successor form) providing for the sale by the Holders (or their donees, pledgees, transferees or other successors-in-interest) of the Holders’ Registrable Shares (the “Shelf Registration”). The Company shall use its commercially reasonable efforts to cause such Registration Statement to become effective as promptly as practicable, but no more than 90 days from the date of the request (or 60 days if the Registration Statement is not reviewed by the SEC). The Company shall maintain the effectiveness of such Registration Statement (subject to the terms and conditions herein) for a period ending on the earlier of (i) the date on which all Registrable Shares covered by such Registration Statement have been sold, and the distribution contemplated thereby has been completed, and (ii) the date on which all Registrable Shares covered by such Registration Statement have become freely saleable pursuant to Rule 144 without restriction or limitation on volume or manner of sale and without the need for current public information required by Rule 144(c)(1) (or Rule 144(i)(2), if applicable); provided that clause (ii) shall not apply with respect to any beneficial owner of 10% or more of the Common Stock. For the avoidance of doubt, if the Holders can no longer use the Form F-3 filed pursuant to this Section 2(a), the Company will either file a new Form F-3 or a Form F-1/S-1 (or successor form).

(b) The Registration Statement pursuant to this Section 2 shall, to the extent possible under applicable law, be effected to permit sales on a continuous basis pursuant to Rule 415 under the Securities Act. Any sale pursuant to the Shelf Registration pursuant to this Section 2 may or may not be underwritten. The Company agrees that it will use its commercially reasonable efforts to maintain a registration statement covering the sale by the Holders (or their donees, pledgees, transferees or other successors-in-interest) of the Holders’ Registrable Shares until the earlier of (i) the date on which all Registrable Shares covered by such Registration Statement have been sold, and the distribution contemplated thereby has been completed, and (ii) the date on which all Registrable Shares covered by such Registration Statement have become freely saleable pursuant to Rule 144 without restriction or limitation on volume or manner of sale and without the need for current public information required by Rule 144(c)(1) (or Rule 144(i)(2), if applicable); provided that clause (ii) shall not apply with respect to any beneficial owner of 10% or more of the Common Stock.

 

3

(c) The number, percentage, fraction or kind of shares referred to in this Section 2 shall be appropriately adjusted for any stock dividend, stock split, reverse stock split, combination, recapitalization, reclassification, merger or consolidation, exchange or distribution in respect of the shares of Common Stock.

(d) The Company, and any other holder of the Company’s securities who has registration rights, may include its securities in any Shelf Registration effected pursuant to this Section 2.

3. Registration Procedures.

(a) Whenever any Registrable Shares are registered pursuant to this Agreement, the Company shall use its commercially reasonable efforts to effect the registration and the sale of such Registrable Shares in accordance with the intended methods of disposition thereof, and pursuant thereto the Company shall:

(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Shares and use its commercially reasonable efforts to cause such Registration Statement to become effective as soon as practicable thereafter;

(ii) prepare and file with the SEC such amendments (including, without limitation, post-effective amendments) and supplements to such Registration Statement and the Prospectus used in connection therewith, which Prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement continuously effective to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement; provided, however, that by 8:30 a.m. (New York time) on the Business Day immediately following the effective date of such Registration Statement, the Company shall file with the SEC in accordance with Rule 424(b) under the Securities Act the final prospectus to be used in connection with sales pursuant to the applicable Registration Statement (whether or not such a prospectus is technically required by such rule);

(iii) furnish to each seller of Registrable Shares such number of copies of such Registration Statement, each amendment and supplement thereto, the Prospectus included in such Registration Statement (including each preliminary Prospectus) and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Shares owned by such seller;

(iv) use its commercially reasonable efforts to register or qualify such Registrable Shares under such other securities or “blue sky” laws of such jurisdictions as any seller reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in

 

4

such jurisdictions of the Registrable Shares owned by such seller; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph 3(a)(iv), or (B) subject itself to taxation in any such jurisdiction;

(v) promptly notify each seller of such Registrable Shares, at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter delivered to the purchasers of such Registrable Shares, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;

(vi) use its commercially reasonable efforts to cause all such Registrable Shares to be listed on the principal securities exchange on which securities of the same class issued by the Company are then listed;

(vii) (A) permit legal counsel for each Shareholder to review and comment upon (i) each Registration Statement at least five Business Days prior to its filing with the SEC and (ii) all amendments and supplements to each Registration Statement (including, without limitation, the Prospectus contained therein) (except for Annual Reports on Form 20-F, Report of Foreign Issuer on Form 6-K, and any similar or successor reports) within a reasonable number of days prior to their filing with the SEC, and (B) not file any Registration Statement or amendment or supplement thereto in a form to which legal counsel for any Shareholder reasonably objects;

(viii) make generally available to its shareholders a consolidated earnings statement (in form complying with, and in the manner provided by, the provisions of Rule 158 under the Securities Act) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the applicable effective date of each Registration Statement; and

(ix) promptly notify each seller of Registrable Shares:

(A) when the Registration Statement, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;

(B) of any written comments of the SEC or of any written request by the SEC for amendments or supplements to the Registration Statement or Prospectus;

(C) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and

 

5

(D) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or “blue sky” laws of any jurisdiction.

(b) The Company shall make available to each Holder whose Registrable Shares are included in a Registration Statement promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement (other than any portion thereof which contains information for which the Company has sought confidential treatment). The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as reasonably practicable and shall file an acceleration request as soon as reasonably practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.

(c) The Company may require, as a condition to the inclusion of such Registrable Securities in the Registration Statement, each seller of Registrable Shares as to which any registration is being effected to furnish in writing to the Company any other information regarding such seller and the distribution of such securities as the Company may from time to time reasonably request in writing, including, but not limited to, a shareholder questionnaire that may include a certified statement as to the number of shares of Common Stock beneficially owned by each Holder and the natural persons thereof that have voting and dispositive control over the Registrable Shares.

(d) Each seller of Registrable Shares agrees by having its shares treated as Registrable Shares hereunder that, upon notice that the Prospectus included in such Registration Statement (or any document incorporated therein) contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading or that such Prospectus or Registration Statement (or any document incorporated therein) must be amended or supplemented for any other reason, including to comply with financial statement updating requirements (a “Suspension Notice”), such seller will forthwith immediately discontinue disposition of Registrable Shares for a reasonable length of time not to exceed 30 days until such seller is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 3(a)(v) hereof, and, if so directed by the Company, such seller will deliver to the Company (at the Company’s expense) all copies, other than permanent file copies then in such seller’s possession, of the Prospectus covering such Registrable Shares current at the time of receipt of such notice; provided, however, that such postponement of sales of Registrable Shares by the Holders shall not exceed 75 days in the aggregate in any 12 month period. If the Company shall give any notice to suspend the disposition of Registrable Shares pursuant to a Prospectus, the Company

 

6

shall extend the period of time during which the Company is required to maintain the Registration Statement effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such notice to and including the date such seller either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 3(a)(v). In any event, the Company shall not be entitled to deliver more than three Suspension Notices in any one year. Notwithstanding anything to the contrary contained in this Section 3(d), the Company shall cause its transfer agent to deliver unlegended shares of Common Stock to a transferee of a Holder in connection with any sale of Registrable Shares with respect to which such Holder has entered into a contract for sale, and delivered a copy of the prospectus included as part of the particular Registration Statement to the extent applicable, prior to such Holder’s receipt of the Suspension Notice and for which the Holder has not yet settled.

4. Registration Expenses.

(a) All expenses incident to the Company’s performance of or compliance with this Agreement, including, without limitation, all registration and filing fees, fees and expenses of compliance with securities or “blue sky” laws, listing application fees, printing expenses, transfer agent’s and registrar’s fees, cost of distributing Prospectuses in preliminary and final form as well as any supplements thereto, and fees and disbursements of counsel for the Company and all independent certified public accountants and other Persons retained by the Company (all such expenses being herein called “Registration Expenses”) (but not including any underwriting discounts or commissions attributable to the sale of Registrable Shares, any taxes of any kind (including, without limitation, transfer taxes) with respect to any disposition, sale or transfer of Registrable Shares, or fees and expenses of more than one counsel representing the Holders of Registrable Shares), shall be borne by the Company. In addition, the Company shall pay its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit or quarterly review, the expense of any liability insurance which the Company may elect to obtain and the expenses and fees for listing the securities to be registered on each securities exchange on which they are to be listed.

(b) The obligation of the Company to bear the expenses described in Section 4(a) shall apply irrespective of whether a registration becomes effective, is withdrawn or suspended, is converted to another form of registration and irrespective of when any of the foregoing shall occur; provided, however, that Registration Expenses for any supplements or amendments to a Registration Statement or Prospectus resulting from a misstatement furnished to the Company by a Holder shall be borne by such Holder.

5. Distribution of Rights upon Dissolution of the Shareholder.

If at any time after the execution date of this Agreement, a Shareholder ceases to exist for any reason as a legal entity (a “Dissolution”) and prior to such Dissolution the Shareholder distributed its shares in the Company to its members or if the Shareholder has otherwise distributed such shares to its members, then such members shall have the same rights and obligations under this Agreement as granted to the Shareholder as if such Dissolution had not occurred.

 

7

6. Indemnification.

(a) The Company shall indemnify, to the fullest extent permitted by law, each Holder, their respective officers, directors and Affiliates and each Person who controls such Holder (within the meaning of the Securities Act) against all losses, obligations, claims, damages, liabilities, contingencies, judgments, fines, penalties, charges, costs (including, without limitation, court costs, reasonable attorneys’ fees and costs of defense and investigation), amounts paid in settlement or expenses, joint or several (collectively, “Losses”), incurred in investigating, preparing or defending any action, claim, suit, inquiry, proceeding, investigation or appeal taken from the foregoing by or before any court or governmental, administrative or other regulatory agency, body or the SEC, whether pending or threatened, whether or not an indemnified party is or may be a party thereto (“Indemnified Damages”), to which any of them may become subject insofar as such Losses or Indemnified Damages (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, “Claims”) arise out of or are based upon: (i) any untrue statement or alleged untrue statement of a material fact in a Registration Statement or any post-effective amendment thereto or in any filing made in connection with the qualification of the offering under the securities or other “blue sky” laws of any jurisdiction in which Registrable Shares are offered, or the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary Prospectus if used prior to the effective date of such Registration Statement, or contained in the final Prospectus (as amended or supplemented, if the Company files any amendment thereof or supplement thereto with the SEC) or the omission or alleged omission to state therein any material fact necessary to make the statements made therein, in light of the circumstances under which the statements therein were made, not misleading, except insofar as the same are made in reliance and in conformity with information relating to such Holder furnished in writing to the Company by such Holder expressly for use therein or caused by such Holder’s failure to deliver to such Holder’s immediate purchaser a copy of the Registration Statement or Prospectus or any amendments or supplements thereto (if the same was required by applicable law to be so delivered and a sufficient number of copies thereof were provided by the Company).

(b) In connection with any Registration Statement in which a Holder of Registrable Shares is participating, each such Holder shall furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus and, shall indemnify, to the fullest extent permitted by law, the Company, its officers, directors, Affiliates, and each Person who controls the Company (within the meaning of the Securities Act) against all Losses and Indemnified Damages arising out of or based upon any untrue or alleged untrue statement of material fact contained in the Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that the same are made in reliance and in conformity with information relating to such Holder furnished in writing to the Company by such Holder expressly for use therein or caused by such Holder’s failure to deliver to such Holder’s immediate purchaser a copy of the Registration Statement or Prospectus or any amendments or supplements thereto (if the same was required by applicable law to be so delivered) after the Company has furnished such Holder with a sufficient number of

 

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copies of the same; provided, however, that the obligation to indemnify shall be several, not joint and several, among such Holders and the liability of each such Holder shall be in proportion to and limited to the net amount received by such Holder from the sale of Registrable Shares pursuant to such Registration Statement, provided that the prospectus filed by the Company in accordance with Rule 424(b) under the Securities Act is accepted by the SEC.

(c) Any Person entitled to indemnification hereunder shall give prompt written notice to the indemnifying party of any Claims, Losses and Indemnified Damages with respect to which it seeks indemnification; provided, however, that the failure to notify the indemnifying party shall not relieve the indemnifying party from any liability that it may have under this Section 6 except to the extent that it has been materially prejudiced by such failure; and provided, further, that the failure to notify the indemnifying party shall not relieve the indemnifying party from any liability that it may have to an indemnified party otherwise than under this Section 6 and permit such indemnifying party to assume the defense of such Claims with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent will not be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, an indemnified party shall have the right to retain its own counsel with the fees and expenses of such counsel to be paid by the indemnifying party if (x) the indemnifying party has agreed in writing to pay such fees and expenses; (y) the indemnifying party shall have failed promptly to assume the defense of such Claims and to employ counsel reasonably satisfactory to such indemnified party in any such Claims; or (z) the named parties to any such Claims (including, without limitation, any impleaded parties) include both such indemnified party and the indemnifying party, and such indemnified party shall have been advised by counsel that a conflict of interest is likely to exist if the same counsel were to represent such indemnified party and the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party), then the indemnifying party shall not have the right to assume the defense thereof and such counsel shall be at the expense of the indemnifying party, provided further that the indemnifying party shall not be responsible for the reasonable fees and expenses of more than one separate legal counsel (and one local counsel) for such indemnified party. No indemnifying party shall, without the prior written consent of the indemnified party, consent to entry of any judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a complete release from all liability in respect to such Claims, Losses, Indemnified Damages and litigation, and such settlement shall not include any admission as to fault, wrongdoing, malfeasance or liability on the part of the indemnified party. The indemnifying party shall reimburse the indemnified party promptly as such expenses are incurred and are due and payable, for any legal fees or other reasonable expenses incurred by them in connection with investigating or defending any such Claims. The indemnifying party shall keep the indemnified party reasonably apprised at all times as to the status of the defense or any settlement negotiations with respect thereto.

(d) The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling Person of such indemnified party and shall survive the transfer of securities. The indemnification required by this Section 6 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or Indemnified Damages or Losses are incurred.

 

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(e) If the indemnification provided for in or pursuant to this Section 6 is due in accordance with the terms hereof, but is held by a court to be unavailable or unenforceable in respect of any Losses or Indemnified Damages referred to herein, then each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified Person as a result of such Losses or Indemnified Damages in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party on the other in connection with the statements or omissions which result in such Losses or Indemnified Damages as well as any other relevant equitable considerations. The relative fault of the indemnifying party on the one hand and of the indemnified Person on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, and by such party’s relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. In no event shall the liability of any selling Holder be greater in amount than the amount of net proceeds received by such Holder upon such sale or the amount for which such indemnifying party would have been obligated to pay by way of indemnification if the indemnification provided for under Section 6(a) or 6(b) hereof had been available under the circumstances.

7. Rule 144.

The Company covenants that it will use commercially reasonable efforts to file or furnish the reports and forms required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder, submit electronically every interactive data file required to be submitted with the SEC, and post any necessary information or documentation on its website, and it will take such further action as any Holder may reasonably request to make available adequate current public information with respect to the Company meeting the current public information requirements of Rule 144 under the Securities Act, to the extent required to enable such Holder to sell Registrable Shares without registration under the Securities Act within the limitation of the exemptions provided by (i) Rule 144 under the Securities Act, as such Rule may be amended from time to time or (ii) any similar rule or regulation hereafter adopted by the SEC. Upon the request of any Holder, the Company will deliver to such Holder a written statement as to whether it has complied with such information and requirements and provide such other information as may be reasonably requested to permit the Shareholders to sell such securities pursuant to Rule 144 without registration.

 

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8. Miscellaneous.

(a) Notices. All notices, requests, consents and other communications required or permitted hereunder shall be in writing and shall be hand delivered or mailed postage prepaid by registered or certified mail or electronic mail,

if to the Company:

Tsakos Energy Navigation Limited

367 Syngrou Avenue

175 64 P. Faliro

Athens, Greece

Attn: George Saroglou and Harrys Kosmatos

Email: gsaroglou@tenn.gr

hkosmatos@tenn.gr

with copies (which shall not constitute notice) to:

Morgan, Lewis & Bockius LLP

101 Park Ave.

New York, NY 10178-0060

Attn: Finnbarr D. Murphy, Esq.

Email: finnbarr.murphy@morganlewis.com

if to the Shareholders:

AY Tank Limited

Central North Business Centre, Level 1,

Sqaq Il-Fawwara

Sliema SLM 1670

Malta

Attn: Fredrik K. Abrahamsen

Email: fka@omp.no and finance@omp.no

with copies (which shall not constitute notice) to:

Watson Farley & Williams LLP

250 West 55^th Street

New York, NY 10019

Attn: Steven J. Hollander, Esq.

Email: shollander@wfw.com

If to a transferee Holder, to the address of such Holder set forth in the transfer documentation provided to the Company or at such other address as such party each may specify by written notice to the others, and each such notice, request, consent and other communication shall for all purposes of the Agreement be treated as being effective or having been given when delivered personally, or if sent by email, upon transmission, or if sent by mail, at the earlier of its receipt or 72 hours after the same has been deposited in a regularly maintained receptacle for the deposit of incoming mail, addressed and postage prepaid as aforesaid.

(b) No Waivers. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.

 

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(c) Assignment. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and the respective permitted successors, personal representatives and assigns of the parties hereto, whether so expressed or not. This Agreement may not be assigned by the Shareholders without the prior written consent of the Company. Notwithstanding the foregoing sentence, in connection with any sale or transfer of Registrable Securities by any Shareholder, the rights and obligations of the Shareholder hereunder may be assigned, without the prior written consent of the Company, to (i) any Affiliate of such Shareholder or (ii) any other Person which has become the beneficial owner of such Registrable Securities following such sale or transfer provided, that such other Person (together with its Affiliate(s)) will beneficially own at least 10% of the issued and outstanding Common Stock following such sale or transfer and provided in any case, that such Affiliate or other Person shall execute an agreement in form and substance reasonably satisfactory to the Company undertaking to become a party to this Agreement and bound by its terms, and provide, in a timely fashion, the information required by Section 3(c).

(d) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.

(e) Jurisdiction. Each of the parties hereto hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction and venue of the United States District Court for the Southern District of New York and in the courts hearing appeals therefrom unless no basis for federal jurisdiction exists, in which event each party hereto irrevocably consents to the exclusive jurisdiction and venue of the Supreme Court of the State of New York, New York County, and the courts hearing appeals therefrom, for any action, suit or proceeding arising out of or relating to this Agreement and the transactions contemplated hereby. Each of the parties hereto irrevocably and unconditionally waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any such action, suit or proceeding, any claim that such party is not personally subject to the jurisdiction of the aforesaid courts for any reason, other than the failure to serve process in accordance with this Section 9(e), that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise), and to the fullest extent permitted by applicable law, that the action, suit or proceeding in any such court is brought in an inconvenient forum, that the venue of such action, suit or proceeding is improper, or that this Agreement, or the subject matter hereof, may not be enforced in or by such courts and further irrevocably waives, to the fullest extent permitted by applicable law, the benefit of any defense that would hinder, fetter or delay the levy, execution or collection of any amount to which the party is entitled pursuant to the final judgment of any court having jurisdiction. Each of the parties hereto expressly acknowledges that the foregoing waivers are intended to be irrevocable under the laws of the State of New York and of the United States of America; provided, that consent by the parties hereto to jurisdiction and service contained in this Section 9(e) is solely for the purpose referred to in this Section 9(e) and shall not be deemed to be a general submission to said courts or in the State of New York other than for such purpose. Notwithstanding the above, if the courts referenced above refuse to grant jurisdiction, then any action, suit or proceeding arising out of or relating to this Agreement and the transactions contemplated hereby may be brought in any court.

 

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(f) Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING UNDER THIS AGREEMENT OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE.

(g) Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if all signatory parties hereto had signed the same document. All counterparts shall be construed together and shall constitute one and the same instrument. This Agreement may be signed electronically or by PDF transmission.

(h) Captions; Singular, Plural; Gender. The headings and other captions in this Agreement are for convenience and reference only; they are not part of this Agreement and shall not be used in interpreting, construing or enforcing any provision of this Agreement. Wherever from the context it appears appropriate, each term stated in either the singular or the plural shall include the singular and the plural, and pronouns stated in either the masculine, the feminine or the neuter gender shall include the masculine, feminine and neuter.

(i) Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such a determination, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.

(j) Amendments. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given without the prior written consent of the Holders of a majority of the Registrable Shares; provided, however, that without a Holder’s written consent no such amendment, modification, supplement or waiver shall affect adversely such Holder’s rights hereunder in a discriminatory manner inconsistent with its adverse effects on rights of other Holders hereunder (other than as reflected by the different number of shares held by such Holder); and provided, further, that the consent or agreement of the Company shall be required with regard to any termination, amendment, modification or supplement of, or waivers or consents to departures from, the terms hereof, which affect the Company’s obligations hereunder. This Agreement cannot be changed, modified, discharged or terminated by oral agreement.

 

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(k) Aggregation of Shares. All Registrable Shares held by or acquired by any Affiliated Persons will be aggregated together for the purpose of determining the availability of any rights under this Agreement.

(l) Specific Performance. In the event of a breach by a party hereto of its obligations under this Agreement, each other party hereto, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Agreement. Each party hereto agrees that monetary damages may not be adequate compensation for any loss incurred by reason of a breach by it of any provision of this Agreement and hereby further agrees that, in the event of any action for specific performance in respect of such breach, it will waive the defense that a remedy at law would be adequate.

(m) Entire Agreement. This Agreement constitutes the entire agreement of the parties hereto relating to the matters contained herein, superseding all prior contracts or agreements, whether oral or written, relating to the matters contained herein.

[Signature Page Follows]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized persons as of the date first indicated above.

 

Schedule A

Shareholder Names and Addresses

AY Tank Limited

Central North Business Centre, Level 1,

Sqaq Il-Fawwara

Sliema SLM 1670

Malta

Attn: Fredrik K. Abrahamsen

Email: fka@omp.no and finance@omp.no