Form SC 13D/A Hoegh LNG Partners LP Filed by: Hoegh LNG Holdings Ltd.

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

 

SCHEDULE 13D/A

Amendment No. 7

Under the Securities Exchange Act of 1934

 

Höegh LNG Partners LP

(Name of Issuer)

 

Common Units Representing Limited Partner Interests

(Title of Class of Securities)

 

Y3262R 100
(CUSIP Number)

 

Höegh LNG Holdings Ltd.

Canon’s Court

22 Victoria Street

Hamilton, HM 12, Bermuda

 

with a copy to:

 

Sean T. Wheeler

Kirkland & Ellis LLP

609 Main Street

Houston, Texas 77002

Telephone: (713) 836-3600

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

 

May 25, 2022

(Date of Event which Requires Filing
of this Statement)

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D/A, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box: ¨

 

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of section 18 of the Securities Exchange Act of 1934 (the “Exchange Act”) or otherwise subject to the liabilities of that section of the Exchange Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

(Continued on following pages)

 

 

 

SCHEDULE 13 D/A

 

CUSIP NO. Y3262R 100

1	NAME OF REPORTING PERSON Höegh LNG Holdings Ltd.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP	(a) ¨ (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS (see instructions) OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) ¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION Bermuda

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER 15,257,498 Common Units*
	8	SHARED VOTING POWER 0 Common Units
	9	SOLE DISPOSITIVE POWER 15,257,498 Common Units*
	10	SHARED DISPOSITIVE POWER 0 Common Units

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 15,257,498 Common Units*
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 45.7%**
14	TYPE OF REPORTING PERSON CO

 

* Includes 13,156,060 common units representing limited partner interests (“Common Units”) that were issued, effective August 16, 2019, upon the one-to-one conversion of all the issued and outstanding subordinated units representing limited partner interests (“Subordinated Units”) upon the expiration of the subordination period as defined and set forth in the Second Amended and Restated Agreement of Limited Partnership of Höegh LNG Partners LP (the “Partnership” or the “Issuer”). Höegh LNG Holdings Ltd. (“Höegh LNG,” or the “Reporting Person”) is also the indirect beneficial owner of the non-economic general partner interest in the Partnership.

 

** Calculation of percentage based on a total of 33,373,002 Common Units issued and outstanding as of March 31, 2022.

 

 

Explanatory Note

 

The Reporting Person, a Bermuda exempt company limited by shares, is hereby filing this Amendment No. 7 to Schedule 13D (this “Amendment”) to report the entry into the Merger Agreement and Support Agreement, each as defined and described below.

 

The aggregate number of Common Units deemed to be beneficially owned by the Reporting Person has not changed from the Schedule 13D/A filed by the Reporting Person with the U.S. Securities and Exchange Commission (the “Commission”) on April 1, 2022 (“Amendment No. 6”). Consistent with prior practice, this Amendment amends and restates Amendment No. 6 in its entirety.

 

Item 1. Security and Issuer

 

This Amendment is being filed with respect to the Common Units. The Partnership has its principal executive offices at Canon’s Court, 22 Victoria Street, Hamilton, HM 12, Bermuda.

 

Item 2. Identity and Background

 

a)

This Amendment is being filed by Höegh LNG Holdings Ltd., a Bermuda exempt company limited by shares.

 

	b)	The principal business address of the Reporting Person is Canon’s Court, 22 Victoria Street, Hamilton, HM 12, Bermuda.
	c)	The principal business of the Reporting Person is to provide floating liquefied natural gas (“LNG”) services under long-term contracts. Höegh LNG owns and operates floating storage and regasification units that act as floating LNG import terminals and LNG carriers that transport LNG to its markets. Höegh LNG owns 100% of Höegh LNG GP LLC, a Marshall Islands limited liability company and the general partner of the Issuer (the "General Partner"). The name, business address, present principal occupation and citizenship of each director and executive officer of Höegh LNG (the “Covered Individuals”) are set forth on Exhibit A to this Amendment, which is incorporated herein by reference. Unless otherwise indicated, the present principal occupation of each person is with Höegh LNG.

 

d)

In the past five years, neither the Reporting Person nor, to the knowledge of the Reporting Person, any Covered Individual has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

 

e)

In the past five years, neither the Reporting Person nor, to the knowledge of the Reporting Person, any Covered Individual has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction that has resulted in a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violations with respect to such laws.

 

f)

Not applicable.

 

 

Item 3. Source and Amount of Funds or Other Consideration

 

Issuance of Units at IPO

 

In connection with the formation of the Partnership on April 28, 2014, Höegh LNG made a contribution to the capital of the Partnership of $1,000 and was admitted as the initial limited partner and the General Partner was admitted as the general partner of the Partnership. Prior to the initial public offering of the Partnership (the “IPO”), a wholly-owned subsidiary of Höegh LNG assigned or transferred capital stock and other equity interests in certain of Höegh LNG’s wholly and partially owned subsidiaries that had interests in the Neptune, the Cape Ann and the PGN FSRU Lampung to a wholly-owned subsidiary of the Partnership as capital contributions. In connection with the IPO and pursuant to the First Amended and Restated Agreement of Limited Partnership of the Partnership, dated August 12, 2014, the Partnership redeemed Höegh LNG’s initial limited partner interest and issued to Höegh LNG (A) 2,116,060 Common Units, representing a 8.0% limited partner interest in the Partnership and (B) 13,156,060 Subordinated Units, representing a 50.0% limited partner interest in the Partnership. On August 12, 2014, the Partnership sold 11,040,000 Common Units (including 1,440,000 Common Units sold pursuant to the exercise in full by the underwriters of their option to purchase additional Common Units) in the IPO pursuant to an underwriting agreement dated August 7, 2014 among the Partnership, Höegh LNG, the General Partner and Höegh LNG Partners Operating LLC and Citigroup Global Markets Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co. LLC, as representatives of the several underwriters named therein. The Common Units were registered under the Exchange Act on August 4, 2014.

 

In connection with the IPO, certain Covered Individuals acquired with personal funds, beneficial ownership of Common Units through the Partnership’s directed unit program at the initial public offering price of $20.00 per unit.

 

Conversion of Subordinated Units

 

The Partnership’s Second Amended and Restated Agreement of Limited Partnership, dated October 5, 2017 (the “Partnership Agreement”), provided that the Subordinated Units owned by Höegh LNG would convert into Common Units two business days after the Partnership met certain financial tests set forth in the Partnership Agreement. These financial tests required the Partnership to have earned and paid a minimum quarterly distribution on all of the outstanding units for three consecutive, non-overlapping four-quarter periods. On August 14, 2019, the Partnership paid the final distribution required to satisfy the financial tests. On August 16, 2019, all 13,156,060 Subordinated Units converted into Common Units on a one-for-one basis for no additional consideration, and Höegh LNG became the beneficial owner of 13,156,060 additional Common Units.

 

Phantom Unit Program

 

Additionally, the Reporting Person has granted, for no consideration, an aggregate of 14,004 Common Units from the Reporting Person to certain of its employees (including certain Covered Individuals) pursuant to the Reporting Person’s previously announced phantom unit award program.

 

It is anticipated that any outstanding phantom units will be deemed vested immediately prior to the Effective Time (as defined below). Holders of such phantom units will be entitled to receive a lump-sum cash payment in full satisfaction thereof following the closing of the Merger (as defined and described below).

 

Amalgamation

 

On March 8, 2021, the Reporting Person announced a recommended offer by Leif Höegh & Co. Ltd. (“LHC”) and funds managed by Morgan Stanley Infrastructure Partners, through a 50/50 joint venture, Larus Holding Limited (“Larus”), to acquire the remaining issued and outstanding shares of the Reporting Person not then owned by LHC or its affiliates (the “Amalgamation”). The Amalgamation closed on May 4, 2021, after which time the Reporting Person became wholly owned by Larus.

 

Item 4. Purpose of Transaction

 

The information contained in Item 3 above is incorporated herein by reference.

 

The Reporting Person acquired the Common Units (and made the original acquisition of the Subordinated Units) for investment purposes and in order to effect the IPO. The Reporting Person at any time and from time to time may acquire additional Common Units or dispose of any or all of Common Units that it owns depending upon an ongoing evaluation of the investment in the Common Units, prevailing market conditions, other investment opportunities, other investment considerations and/or other factors.

 

Under the Limited Liability Company Agreement of the General Partner, dated April 14, 2014 (the “General Partner LLC Agreement”), the Reporting Person has the right to designate the individuals that serve on the board of directors of the General Partner (the “General Partner Board”). The General Partner, in turn, has the right to appoint three of the seven members of the board of directors of the Issuer (the “Issuer Board”). Through the right to appoint members to the General Partner Board, the Reporting Person has the ability to influence the management, policies and control of the Partnership with the aim of increasing the value of the Partnership, and thus of the Reporting Person’s investment.

 

 

Non-Binding Offer Letter

 

On December 4, 2021, the Reporting Person delivered a non-binding offer (the “Offer Letter”) to the Issuer Board to acquire each issued and outstanding Common Unit that is not already owned by the Reporting Person in exchange for cash.

 

The foregoing description of the Offer Letter does not purport to be complete and is qualified in its entirety by reference to the full text of the Offer Letter, which is filed as Exhibit E hereto and is incorporated by reference in its entirety into Item 4.

 

Merger Agreement

 

On May 25, 2022, the Reporting Person and Issuer entered into an Agreement and Plan of Merger (the “Merger Agreement”), by and among the Reporting Person, the Issuer, the General Partner, and Hoegh LNG Merger Sub LLC, a direct, wholly owned subsidiary of the Reporting Person (“Merger Sub” and, together with the Reporting Person and the General Partner, the “Sponsor Entities”). Pursuant to the Merger Agreement, Merger Sub will merge with and into the Issuer, with the Issuer surviving as a direct subsidiary of the Reporting Person (the “Merger”).

 

Upon completion of the Merger, each Common Unit outstanding immediately prior to the effective time of the Merger (the “Effective Time”), other than those Common Units held by the Reporting Person (the “Sponsor Units”), will be converted into the right to receive $9.25 per Common Unit in cash, which will be paid without interest (the “merger consideration”). The General Partner will remain the sole general partner of the Issuer. The Sponsor Units will remain outstanding after the Merger.

 

The board of directors of the Reporting Person (the “Reporting Person Board”), the General Partner Board, the sole member of the General Partner and the sole member of Merger Sub have each approved the Merger Agreement and the transactions contemplated thereby, including the Merger.

 

The conflicts committee (“Conflicts Committee”) of the Issuer Board has (i) determined that the Merger Agreement and the transactions contemplated thereby, including the Merger, are fair to and in the best interests of Issuer and the holders of Common Units (“Common Unitholders”) other than the Reporting Person and its affiliates (the “Unaffiliated Unitholders”), (ii) approved the Merger Agreement and the transactions contemplated thereby, including the Merger (the foregoing constituting Special Approval (as defined in the Partnership Agreement)), (iii) recommended to the Issuer Board that the Issuer Board approve the Merger Agreement and the transactions contemplated thereby, including the Merger, and (iv) recommended to the Issuer Board that the Issuer Board recommend approval of the Merger Agreement and the transactions contemplated thereby, including the Merger, by the Common Unitholders.

 

The Issuer Board, acting upon the recommendation of the Conflicts Committee, has (i) determined that the Merger Agreement and the transactions contemplated thereby, including the Merger, are fair to and in the best interests of the Issuer and the Unaffiliated Unitholders, (ii) approved the Merger Agreement and the transactions contemplated thereby, including the Merger, (iii) directed that the Merger Agreement and the transactions contemplated thereby, including the Merger, be submitted to a vote of the Common Unitholders, and (iv) recommended approval of the Merger Agreement and the transactions contemplated thereby, including the Merger, by the Common Unitholders.

 

The Issuer will hold a special meeting (the “Special Meeting”) of the Common Unitholders to obtain the affirmative vote or consent of the holders of a majority of the outstanding Common Units to approve the Merger Agreement and the transactions contemplated thereby, including the Merger (“Unitholder Approval”). As described further below, pursuant to the Support Agreement, the Reporting Person has agreed to appear at the Special Meeting and either vote in person or by proxy or deliver a written consent to adopt and approve the Merger Agreement and transactions contemplated thereby, including the Merger. Unless the Merger Agreement is validly terminated in accordance with its terms, the Issuer will submit the Merger Agreement to the Common Unitholders at the Special Meeting, even if the Conflicts Committee shall have effected an Adverse Recommendation Change (as defined in the Merger Agreement).

 

The Merger Agreement contains customary representations and warranties from the parties and each party has agreed to customary covenants, including, among others, covenants relating to (i) the conduct of the Issuer’s business during the interim period between the execution of the Merger Agreement and the Effective Time and (ii) the obligation of the parties to use commercially reasonable efforts to cause the Merger to be consummated.

 

Completion of the Merger is subject to certain customary conditions, including: (i) Unitholder Approval; (ii) obtaining Required Regulatory Approvals (as defined in the Merger Agreement), if any; (iii) there being no law or injunction prohibiting consummation of the transactions contemplated under the Merger Agreement; (iv) subject to specified materiality standards, the accuracy of certain representations and warranties of the other party; and (v) compliance by the other party in all material respects with its covenants and obligations under the Merger Agreement.

 

 

The Merger Agreement provides for certain termination rights for both the Reporting Person and Issuer, including (i) by the mutual written agreement of the Issuer and the Reporting Person (duly authorized by the Conflicts Committee and Reporting Person Board, respectively); (ii) by either the Reporting Person or Issuer (following authorization by the Conflicts Committee) under certain circumstances, if (A) the Merger has not been consummated on or before November 23, 2022, (B) the Merger is prevented by certain final and non-appealable legal restraints or a governmental agency is seeking any such legal restraints or (C) the Unitholder Approval is not obtained; (iii) by the Reporting Person (A) if an Adverse Recommendation Change has occurred, or (B) under certain conditions, if the Issuer materially breached any of its representations or warranties, or failed to perform any of its covenants or agreements, set forth in the Merger Agreement (or if any of the representations or warranties of the Issuer set forth in the Merger Agreement shall fail to be true), and such breach or failure is incapable of being cured or is not cured by the Issuer within 30 days following receipt of written notice of such breach or failure; or (iv) by the Issuer (following authorization of the Conflicts Committee) under certain conditions, if a Sponsor Entity materially breached any of its representations or warranties, or failed to perform any of its covenants or agreements, set forth in the Merger Agreement (or if any of the representations or warranties of a Sponsor Entity set forth in the Merger Agreement shall fail to be true), and such breach or failure is incapable of being cured or is not cured by the applicable Sponsor Entity within 30 days following receipt of written notice of such breach or failure.

 

The foregoing description of the Merger Agreement and the transactions contemplated thereby, including the Merger, does not purport to be complete and is subject to, and qualified in its entirety by reference to, the full text of the Merger Agreement, a copy of which is filed as Exhibit I hereto and is incorporated by reference in its entirety into Item 4.

 

As promptly as possible after the Effective Time, the Issuer will cause the Common Units to be delisted from the New York Stock Exchange and deregistered under the Exchange Act.

 

Support Agreement

 

On May 25, 2022, in connection with the execution of the Merger Agreement, the Reporting Person and the Issuer entered into a Voting and Support Agreement (the “Support Agreement”), pursuant to which and subject to the terms and conditions thereof, the Reporting Person agreed, among other things, to vote all of its Common Units in favor of the Merger Agreement and the transactions contemplated thereby, including the Merger, at the Special Meeting. The Reporting Person has also agreed not to transfer any Common Units it beneficially owns or purchase any additional Common Units other than in accordance with the Support Agreement.

 

The foregoing description of the Support Agreement does not purport to be complete and is subject to, and qualified in its entirety by reference to, the full text of the Support Agreement, a copy of which is filed as Exhibit J hereto and is incorporated by reference in its entirety into Item 4.

 

Except as disclosed herein, the Reporting Person has no plans or proposals which relate to, or could result in, any of the matters referred to in paragraphs (a) through (j) inclusive of the instructions to Item 4 of Schedule 13D. The Reporting Person may, at any time and from time to time, review or reconsider its position and/or change its purpose and/or formulate plans or proposals with respect thereto. The Reporting Person does not intend to disclose developments with respect to the foregoing except as may be required by law.

 

Item 5. Interest in Securities of the Issuer

 

(a) - (b) The aggregate number and percentage of Common Units beneficially owned by the Reporting Person (on the basis of a total of 33,373,002 Common Units issued and outstanding as of March 31, 2022) are as follows:

 

Reporting Person		Amount beneficially owned				Percent of class				Sole power to vote or to direct the vote				Shared power to vote or direct the vote				Sole power to dispose or to direct the disposition				Shared power to dispose or to direct the disposition
Höegh LNG Holdings Ltd.			15,257,498				45.7	%			15,257,498				0				15,257,498				0

 

(1) Each of Larus, LHC and Floating Infrastructure LP disclaims beneficial ownership of the 15,257,498 Common Units held by the Reporting Person except to the extent of its respective pecuniary interest therein.

 

 

In addition, as of the date of this report, certain of the Covered Individuals beneficially own the number and percentage of Common Units set forth in the following table:

 

Name		Common Units Beneficially Owned				Percentage of Class Beneficially Owned
Morten W. Høegh			441,037				1.3	%**
Leif O. Høegh			441,037				1.3	%**
Martine Vice Holter			7,500				*
Leif Höegh & Co. Ltd.			441,037				1.3	%

 

* Less than 1% of the class beneficially owned.

 

** Morten W. Høegh and Leif O. Høegh may be deemed to have shared beneficial ownership of 441,037 Common Units through indirect ownership interests in Leif Höegh & Co. Ltd.

 

(c) Except as described herein, neither the Reporting Person nor, to the Reporting Person’s knowledge, the Covered Individuals, has effected any transactions in the Common Units during the past 60 days.

 

(d) The Reporting Person has the right to receive distributions from, and the proceeds from the sale of, the Common Units reported on the cover page of this Amendment and in this Item 5. Except for the foregoing and the cash distribution described in Item 6 below, no other person is known by the Reporting Person to have the right to receive or the power to direct the receipt of distributions from, or the proceeds from the sale of, Common Units beneficially owned by the Reporting Person.

 

(e) Not applicable.

 

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

 

The information contained in Items 2 and 3 and the descriptions of the Merger Agreement and Support Agreement in Item 4 above are incorporated herein by reference.

 

Partnership Agreement

 

General Partner’s Right to Appoint Directors

 

The Issuer Board consists of seven members, three of which are appointed by the General Partner (“Appointed Directors”) and four of which are elected by holders of the Common Units (“Elected Directors”). Appointed Directors serve as directors for terms determined by General Partner. Elected Directors are divided into four classes serving staggered four-year terms.

 

Voting Restrictions

 

The Partnership Agreement provides that, if any person or group owns beneficially more than 4.9% of any class of units then outstanding, any such units owned by that person or group in excess of 4.9% may not be voted on any matter and are not considered to be outstanding when sending notices of a meeting of unitholders, calculating required votes (except for purposes of nominating a person for election to the Issuer Board), determining the presence of a quorum or for other similar purposes, unless required by law. The General Partner, its affiliates (including Höegh LNG) and persons who acquire Common Units with the prior approval of the Issuer Board are not subject to the 4.9% limitation except with respect to voting their Common Units in the election of the Elected Directors.

 

 

Registration Rights

 

Under the Partnership Agreement, the Partnership agreed to register for resale under the Securities Act of 1933, as amended, and applicable state securities laws any Common Units or other partnership interests proposed to be sold by the General Partner or any of its affiliates (including Höegh LNG) or their assignees if an exemption from the registration requirements is not otherwise available or advisable. These registration rights continue for two years following any withdrawal or removal of the General Partner as the general partner of the Partnership. The Partnership is obligated to pay all expenses incidental to the registration, excluding underwriting discounts and commissions.

 

Limited Call Right

 

Under the Partnership Agreement, if, at any time, the General Partner and its affiliates own more than 80% of the Common Units then outstanding, the General Partner has the right, but not the obligation, to purchase all, but not less than all, of the remaining Common Units at a price equal to the greater of (1) the average of the daily closing prices of the Common Units over the consecutive 20 trading days preceding the date three days before notice of exercise of the call right is first mailed and (2) the highest price paid by the General Partner or any of its affiliates for Common Units during the 90-day period preceding the date such notice is first mailed.

 

General Partner LLC Agreement

 

Under the General Partner LLC Agreement, the Reporting Person has the right to designate the individuals that serve on the General Partner Board.

 

To the best knowledge of the Reporting Person, there are no other contracts, arrangements, understandings or relationships (legal or otherwise) among the persons named in Item 2 with respect to any securities of the Partnership.

 

References to, and descriptions of, the Partnership Agreement as set forth in this Amendment are qualified in their entirety by reference to the Partnership Agreement filed as Exhibit 1.2 to the Partnership’s Annual Report on Form 20-F, filed with the Commission on April 9, 2021, which is incorporated by reference herein in its entirety. References to, and descriptions of, the General Partner LLC Agreement as set forth in this Amendment are qualified in their entirety by reference to the General Partner LLC Agreement filed as Exhibit 3.4 to the Partnership’s Registration Statement on Form F-1, filed with the Commission on July 3, 2014 (File No. 333-197228), which is incorporated by reference herein in its entirety.

 

Bond Agreements

 

Pursuant to the bond agreement, dated January 30, 2017 (as amended or amended and restated from time to time, the “HLNG03 Bond Agreement”), between the Reporting Person, as borrower, and Nordic Trustee AS, as bond trustee (“Nordic Trustee”) and the bond agreement, dated January 28, 2020 (as amended or amended and restated from time to time, the “HLNG04 Bond Agreement” and, together with the HLNG03 Bond Agreement, the “Bond Agreements”), between the Reporting Person, as borrower, and Nordic Trustee, as bond trustee, the Reporting Person previously issued NOK 1,500,000,000 and NOK 1,300,000,000, respectively. In connection with the Bond Agreements, the Reporting Person also pledged 15,257,498 Common Units pursuant to a Pledge Agreement, dated March 22, 2022 (the “Pledge Agreement”), between the Reporting Person, as pledgor, and Nordic Trustee, as bond trustee, assignee and secured party.

 

Each of the Bond Agreements provides that a Special Put Option (as separately defined in each Bond Agreement) will exist if a Credit Event (as separately defined in each Bond Agreement) did not occur by April 1, 2022. The Reporting Person has, pursuant to a Pledge Agreement, dated March 22, 2022 (the “Pledge Agreement”), pledged as security 15,257,498 Common Units and all Distributions (as defined in the Pledge Agreement) and certain proceeds or products of the foregoing (collectively, the “Pledged Collateral”) to secure the payment and performance of all the Secured Obligations (as defined under the Pledge Agreement, between the Reporting Person, as pledgor, and Nordic Trustee, as bond trustee, assignee and secured party. The Reporting Person’s entry into the Pledge Agreement constitutes a Credit Event and avoids the Special Put Options.

 

Pursuant to the terms of the Pledge Agreement, upon the occurrence and during the continuation of an event of default, the Collateral Trustee may exercise certain remedies, including (i) the exercise of any voting, consent, waiver or other approval rights related to the Pledged Collateral; (ii) the receipt of all amounts payable in respect of the Pledged Collateral otherwise payable to the Reporting Person; and (iii) the right to sell, transfer or otherwise dispose of the Pledged Collateral. If the Collateral Trustee determines to exercise its right to sell any or all of the Pledged Collateral of the Reporting Person pursuant to its rights under the Pledge Agreement, then the Reporting Person is obligated to take certain actions to enable to the Collateral Trustee to effect the sale of such Pledged Collateral.

 

 

The Pledge Agreement and Bond Agreements contains conditions, representations and warranties, covenants, events of default and other provisions customary for such agreements.

 

In connection with the Pledge Agreement, the Issuer entered into an Issuer Acknowledgment in favor of the Collateral Agent. Pursuant to the Issuer Acknowledgment, the Issuer has agreed to comply with instructions of Nordic Trust as the collateral agent with respect to the Securities Collateral.

 

The Pledge Agreement, the HLNG03 Bond Agreement and the HLNG04 Bond Agreement are attached as Exhibits F, G and H, respectively, and are incorporated herein by reference. References to, and descriptions of, the Pledge Agreement and Bond Agreements are qualified in their entirety by reference to such agreements.

 

Item 7. Material to Be Filed as Exhibits

 

Exhibit A	Directors and Executive Officers of Höegh LNG Holdings Ltd.
Exhibit B	Second Amended and Restated Agreement of Limited Partnership of Höegh LNG Partners LP, dated October 5, 2017 (filed as Exhibit 1.2 to the Partnership’s Annual Report on Form 20-F, filed with the Commission on April 9, 2021 and incorporated by reference herein in its entirety).
Exhibit C	Limited Liability Company Agreement of Höegh LNG GP LLC (filed as Exhibit 3.4 to the Partnership’s Registration Statement on Form F-1, filed with the Commission on July 3, 2014 (File No. 333-197228) and incorporated by reference herein in its entirety).
Exhibit D	Höegh LNG Holdings Ltd. Form Phantom Unit Agreement (filed as Exhibit 4.5 to the Partnership’s Registration Statement on Form S-8, filed with the Commission on June 3, 2016 (File No. 333-211840) and incorporated by reference herein in its entirety).
Exhibit E	Non-Binding Offer Letter, dated December 3, 2021 (filed as Exhibit E to Amendment No. 5 to Schedule 13D filed by Höegh LNG Holdings Ltd., dated December 6, 2021 and incorporated by reference herein in its entirety).
Exhibit F	Pledge Agreement, dated March 22, 2022, between Höegh LNG Holdings Ltd., as pledgor, and Nordic Trustee AS, as collateral agent (filed as Exhibit F to Amendment No. 6 to Schedule 13D filed by Höegh LNG Holdings Ltd., dated April 1, 2022 and incorporated by reference herein in its entirety).
Exhibit G	Bond Agreement, dated January 30, 2017, between Höegh LNG Holdings Ltd., as borrower, and Nordic Trustee AS, as bond trustee (as amended by the amendment agreement dated May 3, 2021) (filed as Exhibit G to Amendment No. 6 to Schedule 13D filed by Höegh LNG Holdings Ltd., dated April 1, 2022 and incorporated by reference herein in its entirety).
Exhibit H	Bond Agreement, dated January 28, 2020, between Höegh LNG Holdings Ltd., as borrower, and Nordic Trustee AS, as bond trustee (as amended by the Tap Issue Addendum dated October 8, 2020, the amendment agreement dated May 3, 2021, and the Tap Issue Addendum dated June 11, 2021) (filed as Exhibit H to Amendment No. 6 to Schedule 13D filed by Höegh LNG Holdings Ltd., dated April 1, 2022 and incorporated by reference herein in its entirety).
Exhibit I	Agreement and Plan of Merger, dated as of May 25, 2022, by and among Höegh LNG Holdings Ltd., Höegh LNG Partners LP, Höegh LNG GP LLC and Hoegh LNG Merger Sub LLC.
Exhibit J	Voting and Support Agreement, dated as of May 25, 2022, by and between Höegh LNG Holdings Ltd. and Höegh LNG Partners LP.

 

 

Signature

 

After reasonable inquiry and to the best of their knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct.

 

Date: May 26, 2022

 

	HÖEGH LNG Holdings Ltd.
	/s/ Thor Jørgen Guttormsen
	Name:	Thor Jørgen Guttormsen
	Title:	President and Chief Executive Officer

 

 

EXHIBIT A

 

Directors and Executive Officers of Höegh LNG Holdings Ltd.

 

Name and Position		Principal Occupation or Employment Name and Position and Principal Business Address		Citizenship
Thor Jørgen Guttormsen, President and Chief Executive Officer		President and Chief Executive Officer Höegh LNG AS Drammensveien 134 0277 Oslo, Norway		Norway
Håvard Furu, Chief Financial Officer		Chief Financial Officer Höegh LNG AS Drammensveien 134 0277 Oslo, Norway		Norway
Morten W. Høegh, Chairman		5 Young Street London W8 5EH United Kingdom		Norway
Johan Pfeiffer, Deputy Chairman		Managing Director and Operating Partner Morgan Stanley Infrastructure Partners 1585 Broadway, 37th Floor New York, NY 10036, USA		Switzerland Sweden
Leif O. Høegh, Director		Drammensveien 134 0277 Oslo, Norway		Norway
Alberto Donzelli, Director		Managing Director Morgan Stanley Infrastructure Partners 25 Cabot Square, Canary Wharf London E14 4QA, United Kingdom		Italy
Martine Vice Holter, Director		Chief Executive Officer & Partner Höegh Capital Partners 5 Young Street London W8 5EH United Kingdom		United Kingdom and Canada
John Kwaak, Director		Managing Partner Zero Infinity Partners Drammensveien 134 0277 Oslo, Norway		South Korea
M. Tonesan Amissah, Director		Managing Director Appleby Global Services Canon’s Court 22 Victoria Street Hamilton, HM 12, Bermuda		United Kingdom

 

 

 

Exhibit I

 

AGREEMENT AND PLAN OF MERGER

 

Dated as of May 25, 2022

 

among

 

Höegh lng holdings ltd.,

 

HOegh LNG MERGER SUB LLC,

 

Höegh lng PARTNERS LP,

 

and

 

Höegh lng GP LLC

 

 

TABLE OF CONTENTS

 

Article I THE MERGER		2
Section 1.1	The Merger	2
Section 1.2	Closing	2
Section 1.3	Effective Time	2
Section 1.4	Effects of the Merger	2
Section 1.5	Organizational Documents of the Surviving Entity	3
Article II EFFECT ON INTERESTS		3
Section 2.1	Effect of Merger	3
Section 2.2	Payment of Merger Consideration	4
Section 2.3	Adjustments	6
Section 2.4	No Dissenters’ Rights	6
Article III REPRESENTATIONS AND WARRANTIES OF MLP		7
Section 3.1	Organization, Standing and Power	7
Section 3.2	Capitalization	7
Section 3.3	Authority; Noncontravention; Voting Requirements	8
Section 3.4	Governmental Approvals	8
Section 3.5	Legal Proceedings	9
Section 3.6	Information Supplied	9
Section 3.7	Opinion of Financial Advisor	9
Section 3.8	Brokers and Other Advisors	9
Section 3.9	No Other Representations or Warranties	9
Article IV REPRESENTATIONS AND WARRANTIES OF THE SPONSOR ENTITIES		10
Section 4.1	Organization, Standing and Power	10
Section 4.2	Authority; Noncontravention; Voting Requirements	10
Section 4.3	Governmental Approvals	11
Section 4.4	Legal Proceedings	11
Section 4.5	Sufficiency of Funds	11
Section 4.6	Information Supplied	12
Section 4.7	Ownership of Partnership Interests.	12
Section 4.8	No Other Representations or Warranties	12
Article V ADDITIONAL COVENANTS AND AGREEMENTS		13
Section 5.1	Preparation of the Proxy Statement and the Schedule 13E-3; Unitholders Meeting	13
Section 5.2	Conduct of Business	14
Section 5.3	Adverse Recommendation Change	14

 

 

Section 5.4	Commercially Reasonable Efforts	15
Section 5.5	Public Announcements	17
Section 5.6	Access to Information; Confidentiality	17
Section 5.7	Notification of Certain Matters	18
Section 5.8	Indemnification and Insurance	19
Section 5.9	Securityholder Litigation	20
Section 5.10	Tax Matters	20
Section 5.11	Performance by the General Partner and MLP	20
Section 5.12	Conflicts Committee	21
Article VI CONDITIONS PRECEDENT		21
Section 6.1	Conditions to Each Party’s Obligation to Effect the Merger	21
Section 6.2	Conditions to Obligations of the Sponsor Entities to Effect the Merger	22
Section 6.3	Conditions to Obligations of MLP to Effect the Merger	22
Section 6.4	Frustration of Closing Conditions	23
Article VII		23
Section 7.1	Termination	23
Section 7.2	Effect of Termination	24
Section 7.3	Fees and Expenses	24
Article VIII MISCELLANEOUS		25
Section 8.1	No Survival, Etc	25
Section 8.2	Amendment or Supplement	25
Section 8.3	Extension of Time, Waiver, Etc	25
Section 8.4	Assignment	25
Section 8.5	Counterparts	26
Section 8.6	Entire Agreement; No Third-Party Beneficiaries	26
Section 8.7	Governing Law; Jurisdiction; Waiver of Jury Trial	26
Section 8.8	Specific Enforcement	27
Section 8.9	Notices	27
Section 8.10	Severability	29
Section 8.11	Interpretation	29
Section 8.12	Non-Recourse	29
Section 8.13	Definitions	30

 

 

INDEX OF DEFINED TERMS

 

Defined Term		Where used
Adverse Recommendation Change		Section 5.3(a)
Affiliate		Section 8.13
Agreement		Preamble
Antitrust Laws		Section 8.13
Book-Entry Units		Section 2.1(f)
business day		Section 8.13
Certificate		Section 2.1(f)
Certificate of Merger		Section 1.3
Charter Documents		Section 8.13
Closing		Section 1.2
Closing Date		Section 1.2
Code		Section 2.2(h)
Common Unit		Section 8.13
Common Unitholders		Section 8.13
Conflicts Committee		Recitals
Contract		Section 8.13
COVID-19		Section 8.13
COVID-19 Measures		Section 8.13
Effective Time		Section 1.3
Exchange Act		Section 3.4
Exchange Fund		Section 2.2(b)
Financial Advisor		Section 3.7
GAAP		Section 8.13
General Partner		Preamble
General Partner Approval		Recitals
General Partner Board		Recitals
General Partner Charter Documents		Section 8.13
General Partner Interest		Section 8.13
Governmental Authority		Section 8.13
HSR Act		Section 8.13
Incentive Distribution Right		Section 8.13
Indemnified Person		Section 5.8(a)
Knowledge		Section 8.13
Law		Section 8.13
Liens		Section 8.13
Long-Term Incentive Plan		Section 8.13
Marshall Islands LLC Act		Section 8.13
Marshall Islands LP Act		Section 8.13
Material Contract		Section 8.13
Maximum Amount		Section 5.8(c)
Measurement Date		Section 3.2(a)
Merger		Section 1.1

 

 

Merger Consideration		Section 2.1(a)
Merger Sub		Preamble
MLP		Preamble
MLP Board		Recitals
MLP Board Recommendation		Section 5.1(b)
MLP Charter Documents		Section 8.13
MLP Disclosure Schedule		Article III
MLP Material Adverse Effect		Section 8.13
MLP Notice Period		Section 5.3(b)(ii)
MLP SEC Documents		Section 8.13
NYSE		Section 8.13
Outside Date		Section 7.1(b)(i)
Parent		Preamble
Parent Board		Recitals
Partnership Agreement		Section 8.13
Partnership Interest		Section 8.13
Party		Preamble
Paying Agent		Section 2.2(a)
Permit		Section 8.13
Person		Section 8.13
Proceeding		Section 8.13
Proxy Statement		Section 3.4
Representatives		Section 5.1(a)
Required Regulatory Approvals		Section 6.1(b)
Restraints		Section 6.1(c)
Schedule 13E-3		Section 5.1(a)
SEC		Section 8.13
Securities Act		Section 8.13
Series A Preferred Unit		Section 8.13
Series A Preferred Unitholders		Section 8.13
Special Approval		Section 8.13
Sponsor Entities		Preamble
Sponsor Units		Section 2.1(d)
Subordinated Units		Section 8.13
Subsidiary		Section 8.13
Support Agreement		Recitals
Surviving Entity		Section 1.1
Tax		Section 8.13
Tax Return		Section 8.13
Taxes		Section 8.13
Unaffiliated Unitholders		Section 8.13
Unitholder		Section 8.13
Unitholder Approval		Section 6.1(a)
Unitholders Meeting		Section 5.1(b)

 

 

AGREEMENT AND PLAN OF MERGER

 

This AGREEMENT AND PLAN OF MERGER, dated as of May 25, 2022 (this “Agreement”), is by and among Höegh LNG Partners LP, a Marshall Islands limited partnership (“MLP”), Höegh LNG GP LLC, a Marshall Islands limited liability company and the general partner of MLP (the “General Partner”), Höegh LNG Holdings Ltd., a Bermuda exempted company (“Parent”), and Hoegh LNG Merger Sub LLC, a Marshall Islands limited liability company and a wholly owned subsidiary of Parent (“Merger Sub” and, together with Parent and the General Partner, the “Sponsor Entities”). Each of MLP, the General Partner, Parent and Merger Sub are referred to herein individually as a “Party” and collectively as the “Parties.”

 

W I T N E S S E T H:

 

WHEREAS, the Board of Directors of the General Partner (the “General Partner Board”) has (i) determined that this Agreement and the transactions contemplated hereby, including the Merger, are in the best interests of the General Partner and declared it advisable to consent to and enter into this Agreement and (ii) consented to and approved this Agreement and the transactions contemplated hereby, including the Merger (as defined herein) (the “General Partner Approval”);

 

WHEREAS, the Conflicts Committee (“Conflicts Committee”) of the Board of Directors of MLP (the “MLP Board”) has (i) determined that this Agreement and the transactions contemplated hereby, including the Merger (as defined herein), are fair to and in the best interests of MLP and the Unaffiliated Unitholders (as defined herein), (ii) approved this Agreement and the transactions contemplated hereby, including the Merger (the foregoing constituting Special Approval (as defined herein)), (iii) recommended to the MLP Board that the MLP Board approve this Agreement and the transactions contemplated hereby, including the Merger, and (iv) recommended to the MLP Board that the MLP Board recommend approval of this Agreement and the transactions contemplated hereby, including the Merger, by the Common Unitholders;

 

WHEREAS, upon the receipt of such approval and recommendation of the Conflicts Committee, the MLP Board, acting upon the recommendation of the Conflicts Committee, has (i) determined that this Agreement and the transactions contemplated hereby, including the Merger, are fair to and in the best interests of MLP and the Unaffiliated Unitholders, (ii) approved this Agreement and the transactions contemplated hereby, including the Merger, (iii) directed that this Agreement and the transactions contemplated hereby, including the Merger, be submitted to a vote of the Common Unitholders, and (iv) recommended approval of this Agreement and the transactions contemplated hereby, including the Merger, by the Common Unitholders;

 

WHEREAS, the Board of Directors of Parent (the “Parent Board”) (i) has determined that this Agreement and the Support Agreement (as defined below) and the transactions contemplated hereby and thereby, including the Merger, are in the best interests of Parent and (ii) approved this Agreement and the Support Agreement and the transactions contemplated hereby and thereby, including the Merger;

 

WHEREAS, Parent owns 100% of the issued and outstanding limited liability company interests in Merger Sub;

 

 

WHEREAS, Parent, in its capacity as the sole member of Merger Sub, has (i) determined that this Agreement and the transactions contemplated hereby, including the Merger, are in the best interests of Merger Sub and declared it advisable to enter into this Agreement and (ii) approved the adoption of this Agreement, the execution, delivery and performance of this Agreement and the transactions contemplated hereby, including the Merger; and

 

WHEREAS, MLP has required, as a condition to its willingness to enter into this Agreement, that Parent simultaneously herewith enter into a support agreement, dated as of the date hereof (as may be amended, the “Support Agreement”), pursuant to which, among other things, Parent agrees, in its capacity as a limited partner of MLP, to vote its Common Units in favor of this Agreement and the transactions contemplated hereby, including the Merger.

 

NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained in this Agreement, and intending to be legally bound, the Parties agree as follows:

 

Article I
THE MERGER

 

Section 1.1            The Merger. Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the Marshall Islands LP Act and the Marshall Islands LLC Act, at the Effective Time (as defined herein), Merger Sub shall be merged with and into MLP (such transaction, the “Merger”), the separate limited liability company existence of Merger Sub will cease and MLP will continue its existence as a limited partnership under Marshall Islands law as the surviving entity in the Merger (the “Surviving Entity”).

 

Section 1.2            Closing. Subject to the provisions of Article VI, the closing of the Merger (the “Closing”) shall take place at the offices of Kirkland & Ellis LLP, 609 Main Street, Houston, Texas 77002 at 9:00 a.m., local time, on the second business day after the satisfaction or waiver of the conditions set forth in Article VI (other than conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions), or at such other place, date and time as MLP and Parent shall agree. The date on which the Closing actually occurs is referred to as the “Closing Date.”

 

Section 1.3            Effective Time. Subject to the provisions of this Agreement, at the Closing, a certificate of merger effecting the Merger, executed in accordance with the relevant provisions of the Marshall Islands LP Act and the Marshall Islands LLC Act (the “Certificate of Merger”), will be duly filed with the Registrar of Corporations of the Republic of the Marshall Islands by the Partnership. The Merger will become effective at such time as the Certificate of Merger has been duly filed with the Registrar of Corporations of the Republic of the Marshall Islands or at such later date as may be agreed by MLP and Parent in writing and specified in the Certificate of Merger (the effective time of the Merger being hereinafter referred to as the “Effective Time”).

 

Section 1.4            Effects of the Merger. The Merger shall have the effects set forth herein, in the Partnership Agreement (as defined herein) and in the applicable provisions of the Marshall Islands LP Act and the Marshall Islands LLC Act.

 

 

Section 1.5             Organizational Documents of the Surviving Entity.

 

(a)           At the Effective Time, the certificate of limited partnership of MLP as in effect immediately prior to the Effective Time shall remain unchanged and shall be the certificate of limited partnership of the Surviving Entity from and after the Effective Time, and thereafter may be amended as provided by Law (as defined herein), consistent with the obligations set forth in Section 5.8.

 

(b)           At the Effective Time, the Partnership Agreement as in effect immediately prior to the Effective Time shall remain unchanged and shall be the agreement of limited partnership of the Surviving Entity from and after the Effective Time, and thereafter may be amended as provided therein or by Law, in each case consistent with the obligations set forth in Section 5.8.

 

Article II
EFFECT ON INTERESTS

 

Section 2.1            Effect of Merger. At the Effective Time, by virtue of the Merger and without any action on the part of the General Partner, MLP, Parent or the holder of any securities of MLP or Merger Sub:

 

(a)           Conversion of Common Units. Subject to Section 2.3, each Common Unit (as defined herein) issued and outstanding as of immediately prior to the Effective Time, other than the Sponsor Units (as defined herein), shall be converted into the right to receive $9.25 per Common Unit in cash without any interest thereon (collectively, the “Merger Consideration”).

 

(b)           Preferred Units. Each Series A Preferred Unit (as defined herein) issued and outstanding as of immediately prior to the Effective Time will be unaffected by the Merger and shall be unchanged and remain outstanding, and no consideration shall be delivered in respect thereof.

 

(c)           General Partner Interest. The General Partner Interest issued and outstanding immediately prior to the Effective Time shall remain outstanding in the Surviving Entity and the General Partner shall continue as the sole general partner of the Surviving Entity and the sole record and beneficial owner of the general partner interest in the Surviving Entity.

 

(d)           Parent-Owned Common Units and Incentive Distribution Rights. Any Common Units that are owned immediately prior to the Effective Time by Parent (“Sponsor Units”) shall not be canceled, shall not be converted into the Merger Consideration and shall remain outstanding as common units representing limited partner interests in the Surviving Entity. Any Incentive Distribution Rights that are owned immediately prior to the Effective Time by Parent shall automatically be cancelled at the Effective Time and shall cease to exist. No consideration will be delivered in exchange for such cancellation.

 

(e)           Conversion of the Membership Interests in Merger Sub. The limited liability company interests in Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into a number of common units representing limited partner interests in the Surviving Entity equal to the number of Common Units converted into the Merger Consideration pursuant to this Agreement. Parent shall continue as a Common Unitholder of the Surviving Entity and shall be the only Common Unitholder of the Surviving Entity. At the Effective Time, the books and records of MLP (as the Surviving Entity) shall be revised to reflect that Parent is the only Common Unitholder of the Surviving Entity and the simultaneous withdrawal of all other Common Unitholders from MLP. For the avoidance of doubt, at the Effective Time, Series A Preferred Unitholders shall remain Series A Preferred Unitholders.

 

 

(f)            Certificates. All Common Units converted into the Merger Consideration pursuant to this Article II shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and each holder of a Common Unit certificate (or an effective affidavit of loss in lieu thereof) (a “Certificate”) or evidence of Common Units in book-entry form (“Book-Entry Units”) that immediately prior to the Effective Time represented any such Common Units shall cease to have any rights with respect thereto, except the right to receive (i) the Merger Consideration to be paid in consideration therefor upon surrender of such Certificate or Book-Entry Unit in accordance with Section 2.2(c), without interest, and (ii) any distributions with respect to Common Units declared by MLP with a record date prior to the Closing Date.

 

Section 2.2            Payment of Merger Consideration.

 

(a)           Paying Agent. Prior to the Closing Date, Parent shall appoint a paying agent reasonably acceptable to MLP (the “Paying Agent”) for the purpose of exchanging Certificates or Book-Entry Units for the Merger Consideration. As soon as reasonably practicable after the Effective Time, but in no event more than three business days following the Effective Time, Parent will send, or will cause the Paying Agent to send, to each holder of record of Common Units as of the Effective Time (and, to the extent commercially practicable, to make available for collection by hand, during customary business hours commencing immediately after the Effective Time, if so elected by such holder of record), whose Common Units were converted into the right to receive the Merger Consideration, a letter of transmittal (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or Book-Entry Units to the Paying Agent) in such form as MLP and Parent may reasonably agree, including, as applicable, instructions for use in effecting the surrender of Certificates or Book-Entry Units to the Paying Agent in exchange for the Merger Consideration.

 

(b)           Deposit. At or prior to the Closing, Parent shall cause to be deposited with the Paying Agent cash in an amount sufficient to pay the aggregate Merger Consideration issuable upon due surrender of the Certificates or Book-Entry Units pursuant to the provisions of this Article II. All cash deposited with the Paying Agent shall be referred to in this Agreement as the “Exchange Fund.” The Paying Agent shall, pursuant to irrevocable instructions, deliver the Merger Consideration contemplated to be issued or paid pursuant to this Article II out of the Exchange Fund. The Exchange Fund shall not be used for any other purpose.

 

(c)           Surrender of Common Units. Each holder of Common Units that have been converted into the right to receive the Merger Consideration upon surrender to the Paying Agent of a properly completed letter of transmittal, duly executed and completed in accordance with the instructions thereto, a Book-Entry Unit or a Certificate and such other documents as may reasonably be required by the Paying Agent, will be entitled to receive in exchange therefor a check denominated in U.S. dollars in the amount of cash equal to, subject to Section 2.2(h), the product of (i) the number of Common Units represented by such holder’s properly surrendered Certificates (or effective affidavits of loss in lieu thereof) or Book-Entry Units multiplied by (ii) the Merger Consideration. Until so surrendered, each such Certificate or Book-Entry Unit shall, after the Effective Time, represent for all purposes only the right to receive such Merger Consideration and any distributions with respect to Common Units declared by MLP with a record date prior to the Closing Date. The Merger Consideration paid upon surrender of Certificates or Book-Entry Units shall be deemed to have been paid in full satisfaction of all rights pertaining to the Common Units, as the case may be, formerly represented by such Certificates or Book-Entry Units (other than the right to receive any distributions with respect to Common Units declared by MLP with a record date prior to the Closing Date).

 

 

(d)           Other Payees. If any portion of the Merger Consideration is to be registered in the name of a Person other than the Person in whose name the applicable surrendered Certificate or Book-Entry Unit is registered, it shall be a condition to the registration thereof that the surrendered Certificate or Book-Entry Unit shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such delivery of the Merger Consideration shall pay to the Paying Agent any transfer, documentary, sales, use, stamp, registration or other similar Taxes required as a result of such registration in the name of a Person other than the registered holder of such Certificate or Book-Entry Unit or establish to the satisfaction of the Paying Agent that such Tax has been paid or is not payable.

 

(e)           No Further Transfers. From and after the Effective Time, there shall be no further registration on the books of MLP of transfers of Common Units. From and after the Effective Time, the holders of Certificates or Book-Entry Units representing Common Units outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Common Units, except as otherwise provided in this Agreement or by applicable Law. If, after the Effective Time, Certificates or Book-Entry Units are presented to the Paying Agent or Parent, they shall be canceled and exchanged for the Merger Consideration provided for, and in accordance with, the procedures set forth in this Article II.

 

(f)            Termination of Exchange Fund. Any portion of the Exchange Fund that remains unclaimed by the holders of Common Units 12 months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such holder’s Common Units for the Merger Consideration in accordance with this Section 2.2 prior to that time shall thereafter look only to Parent for delivery of the Merger Consideration in respect of such holder’s Common Units. Notwithstanding the foregoing, Parent and MLP shall not be liable to any Common Unitholder for any Merger Consideration duly delivered to a public official pursuant to applicable abandoned property Laws. Any Merger Consideration remaining unclaimed by Common Unitholders immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Authority (as defined herein) shall, to the extent permitted by applicable Law, become the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.

 

(g)           Lost, Stolen or Destroyed Certificates. If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent, the posting by such Person of a bond, in such reasonable amount as Parent may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent will issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to be paid in respect of the Common Units represented by such Certificate as contemplated by this Article II.

 

 

(h)           Withholding Taxes. Parent, its Subsidiaries (as defined herein) and the Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to a Common Unitholder such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), the rules and regulations promulgated thereunder and under any provisions of applicable state, local or foreign Tax Law. To the extent amounts are so withheld and timely paid over to the appropriate Tax authority in accordance with applicable Law, such withheld amounts shall be treated for the purposes of this Agreement as having been paid to the former Common Unitholder in respect of whom such withholding was made. Parent, its Subsidiaries, the Paying Agent and the MLP shall reasonably cooperate in order to reduce or eliminate any amounts that would otherwise be required to be deducted or withheld from payments made pursuant to this Agreement under applicable Law in respect of Taxes.

 

(i)            Tax Characterization of the Merger. For U.S. federal income tax purposes (and for purposes of any applicable state, local or foreign Tax that follows the U.S. federal income tax treatment), the Parties agree to treat the Merger as a taxable acquisition by Parent of the Common Units, other than the Sponsor Units. The Parties will prepare and file all applicable Tax Returns (as defined herein) consistent with the foregoing and will not take any inconsistent position on any such Tax Return, or during the course of any related audit, litigation or other Proceeding with respect to Taxes (each as defined herein), except as otherwise required by applicable Law following a final determination by a court of competent jurisdiction or other administrative settlement with or final administrative decision by the relevant Governmental Authority.

 

Section 2.3            Adjustments. Notwithstanding any provision of this Article II to the contrary (but without in any way limiting the covenants in Section 5.2), if between the date of this Agreement and the Effective Time the number of outstanding Common Units shall have been changed into a different number of units or a different class by reason of the occurrence or record date of any unit or share distribution or dividend, subdivision, reclassification, recapitalization, split, split-up, combination, exchange of units or shares or similar transaction, the Merger Consideration shall be appropriately adjusted to reflect fully the effect of such unit or share distribution or dividend, subdivision, reclassification, recapitalization, split, split-up, combination, exchange of units or shares or similar transaction and to provide the holders of Common Units the same economic effect as contemplated by this Agreement prior to such event.

 

Section 2.4             No Dissenters’ Rights. No dissenters’ or appraisal rights shall be available with respect to the Merger or the other transactions contemplated hereby.

 

 

Article III
REPRESENTATIONS AND WARRANTIES OF MLP

 

Except as disclosed in (i) the MLP SEC Documents filed with the SEC on or after December 31, 2021 and prior to the date of this Agreement (but excluding any disclosure contained in any such MLP SEC Documents under the heading “Risk Factors” or “Forward-Looking Statements” or similar heading) or (ii) the disclosure letter delivered by MLP to Parent (the “MLP Disclosure Schedule”) prior to the execution of this Agreement, provided that disclosure in any section of such MLP Disclosure Schedule will be deemed to be disclosed with respect to any other section of this Agreement to the extent that it is reasonably apparent on the face of such disclosure that it is applicable to such other section, MLP hereby represents and warrants to Parent and Merger Sub as follows:

 

Section 3.1            Organization, Standing and Power.

 

(a)           MLP has been duly formed and is validly existing and in good standing as a limited partnership under the laws of its jurisdiction of organization, with requisite power and authority necessary to own or lease all of its properties and assets and to carry on its business as it is now being conducted. MLP is in good standing under the laws of each other jurisdiction which requires such qualification, except where the failure to be in good standing would not reasonably be expected to have, individually or in the aggregate, an MLP Material Adverse Effect (as defined herein).

 

(b)           MLP is duly qualified to transact business as a foreign limited partnership and is in good standing under the laws of each jurisdiction which requires such qualification, except where the failure to be so qualified would not reasonably be expected to have, individually or in the aggregate, an MLP Material Adverse Effect.

 

Section 3.2            Capitalization.

 

(a)           As of the close of business on May 24, 2022 (the “Measurement Date”), MLP has no partnership interests or other equity interests issued and outstanding and no Common Units held in treasury, other than: (i) 33,373,002 Common Units; (ii) 7,089,325 Series A Preferred Units; (iii) the General Partner Interest; and (iv) the Incentive Distribution Rights. At the close of business on the Measurement Date, there were no Subordinated Units (as defined herein) outstanding. All of the outstanding Partnership Interests have been duly authorized and validly issued in accordance with the Partnership Agreement, and are fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as set forth in the Partnership Agreement or as such nonassessability may be affected by Sections 30, 41, 51 and 60 of the Marshall Islands LP Act) and, except as set forth in the Partnership Agreement, free of preemptive rights. Except (A) as set forth above in this Section 3.2(a) or (B) as otherwise expressly permitted by Section 5.2, as of the date of this Agreement there are not, and, as of the Effective Time there will not be, any partnership interests, voting securities or other equity interests of MLP issued and outstanding or any subscriptions, options, warrants, calls, convertible or exchangeable securities, rights, commitments or agreements of any character providing for the issuance of any partnership interests, voting securities or other equity interests of MLP, including any representing the right to purchase or otherwise receive any of the foregoing.

 

(b)           Except as set forth in the MLP Charter Documents (as defined herein), as in effect as of the date of this Agreement, there are no outstanding obligations of MLP to repurchase, redeem or otherwise acquire any partnership interests, shares of capital stock, voting securities or equity interests (or any options, warrants or other rights to acquire any partnership interests, shares of capital stock, voting securities or equity interests) of MLP.

 

 

Section 3.3            Authority; Noncontravention; Voting Requirements.

 

(a)           MLP has all necessary power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, including the Merger, subject to obtaining the Unitholder Approval (as defined herein). The execution, delivery and performance by MLP of this Agreement, and the transactions contemplated hereby, including the Merger, have been duly authorized by the MLP Board and approved by each of the Conflicts Committee and the MLP Board, and the MLP Board, acting upon the recommendation of the Conflicts Committee, has, (i) determined that this Agreement and the transactions contemplated hereby, including the Merger, are fair to and in the best interests of MLP and the Unaffiliated Unitholders, (ii) approved this Agreement and the transactions contemplated hereby, including the Merger, (iii) directed that this Agreement and the transactions contemplated hereby, including the Merger, be submitted to a vote of the Common Unitholders, and (iv) recommended approval of this Agreement and the transactions contemplated hereby, including the Merger, by the Common Unitholders. Except for obtaining the Unitholder Approval, no other entity action on the part of MLP is necessary to authorize the execution, delivery and performance by MLP of this Agreement and the transactions contemplated hereby, including the Merger. This Agreement has been duly executed and delivered by MLP and, assuming due authorization, execution and delivery of this Agreement by the other Parties, constitutes the legal, valid and binding obligation of MLP, enforceable against it in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar Laws affecting the enforcement of creditors’ rights and remedies generally and by general principles of equity (whether applied in a Proceeding or at law or in equity).

 

(b)           Neither the execution and delivery of this Agreement by MLP nor the consummation by MLP of the transactions contemplated hereby nor compliance by MLP with any of the terms or provisions of this Agreement will, (i) assuming that the Unitholder Approval is obtained, conflict with or violate any provision of the MLP Charter Documents, or (ii) assuming that the authorizations, consents and approvals referred to in Section 3.4 and the Unitholder Approval are obtained and the filings referred to in Section 3.4 are made, violate any Law, judgment, writ or injunction of any Governmental Authority applicable to MLP or any of its properties or assets, except, in the case of clause (ii), for such violations as would not reasonably be expected to have an MLP Material Adverse Effect.

 

(c)           Except for the General Partner Approval, the Unitholder Approval is the only vote or approval of the holders of any class or series of partnership interests, equity interests or capital stock of MLP or any of its Subsidiaries which are necessary to approve this Agreement and to consummate the transactions contemplated hereby.

 

Section 3.4            Governmental Approvals. Except for (i) filings required under, and compliance with other applicable requirements of, the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), and the Securities Act (as defined herein), including the filing of a proxy statement with the SEC in connection with the Merger (the “Proxy Statement”), (ii) the filing of the Certificate of Merger with the Registrar of Corporations of the Republic of the Marshall Islands, (iii) filings required under, and compliance with other applicable requirements of, the HSR Act and other Antitrust Laws (as defined herein) or (iv) any consents, authorizations, approvals, filings or exemptions in connection with compliance with the rules of the NYSE (as defined herein), no consents or approvals of, or filings, declarations or registrations with, any Governmental Authority are necessary for the execution, delivery and performance of this Agreement by MLP and the consummation by MLP of the transactions contemplated hereby, other than, in the case of this clause (iv), such other consents, approvals, filings, declarations or registrations that, if not obtained, made or given, would not reasonably be expected to have, individually or in the aggregate, an MLP Material Adverse Effect.

 

 

Section 3.5            Legal Proceedings. As of the date of this Agreement, there is no pending Proceeding, and, to the Knowledge (as defined herein) of MLP, no Person has threatened to commence any Proceeding, against MLP that challenges, or that would reasonably be expected to have the effect of making illegal, restraining, enjoining or otherwise prohibiting or preventing the Merger.

 

Section 3.6            Information Supplied. None of the information supplied (or to be supplied) in writing by or on behalf of MLP specifically for inclusion or incorporation by reference in the Proxy Statement will, on the date it is first mailed to Common Unitholders, and at the time of the Unitholders Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Proxy Statement will comply as to form in all material respects with the applicable requirements of the Exchange Act. Notwithstanding the foregoing, MLP makes no representation or warranty with respect to information supplied by or on behalf of Parent or its Affiliates for inclusion or incorporation by reference in any of the foregoing documents.

 

Section 3.7            Opinion of Financial Advisor. The Conflicts Committee has received the opinion of Evercore Group L.L.C. (the “Financial Advisor”), dated the date of this Agreement, to the effect that, as of such date, and subject to the assumptions and qualifications set forth therein, from a financial point of view, the Merger Consideration is fair to MLP and the Unaffiliated Unitholders. MLP has been authorized by the Financial Advisor to permit the inclusion of such fairness opinion in the Proxy Statement.

 

Section 3.8            Brokers and Other Advisors. Except for the Financial Advisor, the fees and expenses of which will be paid by MLP, no broker, investment banker or financial advisor is entitled to any broker’s, finder’s or financial advisor’s fee or commission, or the reimbursement of expenses, in connection with the Merger or the transactions contemplated hereby based on arrangements made by or on behalf of the Conflicts Committee. MLP has heretofore made available to Parent a correct and complete copy of its engagement letter with the Financial Advisor, which letter describes all fees payable to the Financial Advisor in connection with the transactions contemplated hereby and all agreements under which any such fees or any expenses are payable and all indemnification and the other agreements with the Financial Advisor, entered into in connection with the transactions contemplated hereby.

 

Section 3.9            No Other Representations or Warranties. Except for the representations and warranties set forth in this Article III, neither MLP nor any other Person makes or has made any express or implied representation or warranty with respect to MLP or its Subsidiaries or with respect to any other information provided to Parent in connection with the Merger or the other transactions contemplated hereby. Without limiting the generality of the foregoing, neither MLP nor any other Person will have or be subject to any liability or other obligation to Parent or any other Person resulting from the distribution to Parent (including its Representatives), or Parent’s (or such Representatives’) use of, any such information, including any information, documents, projections, forecasts or other materials made available to Parent in certain “data rooms” or management presentations in expectation of the Merger.

 

 

Article IV
REPRESENTATIONS AND WARRANTIES OF THE SPONSOR ENTITIES

 

Each Sponsor Entity hereby represents and warrants, jointly and severally, to MLP as follows:

 

Section 4.1             Organization, Standing and Power.

 

(a)           Parent has been duly organized and is validly existing as an exempted company under Bermuda law. Merger Sub has been duly organized and is validly existing as a limited liability company under Marshall Islands law. The General Partner has been duly organized and is validly existing and in good standing as a limited liability company under Marshall Islands law.

 

(b)           Parent owns all of the issued and outstanding interests in Merger Sub, and such equity interests have been duly authorized and validly issued in accordance with the certificate of formation and limited liability company agreement of Merger Sub and are fully paid (to the extent required under the limited liability company agreement of Merger Sub) and nonassessable (except as set forth in the limited liability company agreement of Merger Sub or as such nonassessability may be affected by Sections 20, 31, 40, and 49 of the Marshall Islands LLC Act); and Parent owns such equity interests free and clear of all Liens. Merger Sub has not conducted any business other than incident to its formation and pursuant to this Agreement, the Merger and the other transactions contemplated hereby and the financing of such transactions.

 

Section 4.2            Authority; Noncontravention; Voting Requirements.

 

(a)           Each of Parent, the General Partner and Merger Sub has all necessary power and authority to execute and deliver this Agreement and the Support Agreement, as applicable, and to consummate the transactions contemplated hereby and thereby, as applicable, including the Merger and the payment of the Merger Consideration, as applicable. The execution, delivery and performance by the Sponsor Entities of this Agreement, and the transactions contemplated hereby, including the Merger and the payment of the Merger Consideration, as applicable, have been duly authorized and approved by the Parent Board, the General Partner Board and the sole member of Merger Sub. The Parent Board has (i) determined that this Agreement and the Support Agreement and the transactions contemplated hereby and thereby, including the Merger, are in the best interests of Parent and (ii) approved this Agreement and the Support Agreement and the transactions contemplated hereby and thereby, including the Merger. Parent, in its capacity as the sole member of Merger Sub, has (a) determined that this Agreement and the transactions contemplated hereby, including the Merger, are in the best interests of Merger Sub and declared it advisable to enter into this Agreement and (b) approved the adoption of this Agreement, the execution, delivery and performance of this Agreement and the transactions contemplated hereby, including the Merger. Parent, in its capacity as the sole member of the General Partner, has (a) determined that this Agreement and the transactions contemplated hereby, including the Merger, are in the best interests of the General Partner and declared it advisable to enter into this Agreement and (b) approved the adoption of this Agreement, the execution, delivery and performance of this Agreement and the transactions contemplated hereby, including the Merger. The General Partner Board has (i) determined that this Agreement and the transactions contemplated hereby, including the Merger, are in the best interests of the General Partner and declared it advisable to consent to and enter into this Agreement and (ii) consented to and approved this Agreement and the transactions contemplated hereby, including the Merger.

 

 

(b)           Neither the execution and delivery of this Agreement or the Support Agreement by a Sponsor Entity, nor the consummation by the Sponsor Entities of the transactions contemplated hereby or thereby, nor compliance by the Sponsor Entities with any of the terms or provisions of this Agreement or the Support Agreement, will (i) conflict with or violate any provision of the Charter Documents of the Sponsor Entities, and (ii) assuming that the authorizations, consents and approvals referred to in Section 4.3 are obtained and the filings referred to in Section 4.3 are made, violate any Law, judgment, writ or injunction of any Governmental Authority applicable to the Sponsor Entities or any of their respective properties or assets.

 

(c)           Simultaneously with the execution of this Agreement, Parent has executed and delivered the Support Agreement.

 

Section 4.3            Governmental Approvals. Except for (i) filings required under, and compliance with other applicable requirements of, the Securities Act, the Exchange Act, other applicable foreign securities law and state securities, takeover and “blue sky” laws, as may be required in connection with this Agreement or the Support Agreement and the transactions contemplated hereby and thereby, (ii) the filing of the Certificate of Merger with the Registrar of Corporations of the Republic of the Marshall Islands, or (iii) any filings required under, and compliance with other applicable requirements of, the HSR Act and other Antitrust Laws, no consents or approvals of, or filings, declarations or registrations with, any Governmental Authority are necessary for the execution, delivery and performance of this Agreement or the Support Agreement by the Sponsor Entities and the consummation by the Sponsor Entities of the transactions contemplated hereby and thereby, other than such other consents, approvals, filings, declarations or registrations that, if not obtained, made or given, would not, individually or in the aggregate, reasonably be expected to materially impede or delay the ability of the Sponsor Entities to consummate the Merger.

 

Section 4.4            Legal Proceedings. As of the date of this Agreement, there is no pending Proceeding, and, to the Knowledge of Parent, no Person has threatened to commence any Proceeding, against Parent, General Partner or Merger Sub that challenges, or that would reasonably be expected to have the effect of making illegal, restraining, enjoining or otherwise prohibiting or preventing the Merger.

 

Section 4.5            Sufficiency of Funds. Parent has available to it sufficient funds to pay the aggregate Merger Consideration and all other cash amounts payable pursuant to this Agreement. Parent, General Partner and Merger Sub expressly acknowledge and agree that their obligations hereunder, including their obligations to consummate the Merger, are not subject to, or conditioned on, receipt of financing.

 

 

Section 4.6            Information Supplied. None of the information supplied (or to be supplied) in writing by or on behalf of the Sponsor Entities specifically for inclusion or incorporation by reference in the Proxy Statement will, on the date it is first mailed to Common Unitholders, and at the time of the Unitholders Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Notwithstanding the foregoing, the Sponsor Entities make no representation or warranty with respect to information supplied by or on behalf of MLP for inclusion or incorporation by reference in any of the foregoing documents.

 

Section 4.7            Ownership of Partnership Interests.

 

(a)           As of the date of this Agreement, Parent is the record owner of 15,257,498 Common Units, which represent all of the Common Units held of record or beneficially by Parent or any of its Subsidiaries, and the holder of the Incentive Distribution Rights; such Common Units and Incentive Distribution Rights have been duly authorized and validly issued in accordance with the Partnership Agreement; and Parent owns such Common Units and Incentive Distribution Rights free and clear of all Liens, except for (i) the pledge of such Common Units pursuant to a Pledge Agreement, dated March 22, 2022, between Parent, as pledgor, and Nordic Trustee AS (“Nordic Trustee”), as bond trustee, assignee and secured party, in connection with (A) the bond agreement, dated January 30, 2017, between Parent, as borrower, and Nordic Trustee, as bond trustee; and (B) the bond agreement, dated January 28, 2020, between Parent, as borrower, and Nordic Trustee, as bond trustee and (ii) restrictions on transferability contained in the Partnership Agreement.

 

(b)           The General Partner is the sole general partner of MLP and owner of the General Partner Interest; such General Partner Interest has been duly authorized and validly issued in accordance with the Partnership Agreement; and the General Partner owns such General Partner Interest free and clear of all Liens, except for restrictions on transferability contained in the Partnership Agreement.

 

Section 4.8            No Other Representations or Warranties. Except for the representations and warranties set forth in this Article IV, neither Parent nor the General Partner nor Merger Sub nor any other Person makes or has made any express or implied representation or warranty with respect to the Sponsor Entities or with respect to any other information provided to MLP in connection with the transactions contemplated hereby. Without limiting the generality of the foregoing, neither Parent nor the General Partner nor Merger Sub nor any other Person will have or be subject to any liability or other obligation to MLP or any other Person resulting from the distribution to MLP (including its Representatives), or MLP's (or such Representatives’) use of, any such information, including any information, documents, projections, forecasts or other materials made available to MLP in any “data rooms” or management presentations in expectation of the Merger.

 

 

Article V
ADDITIONAL COVENANTS AND AGREEMENTS

 

Section 5.1            Preparation of the Proxy Statement and the Schedule 13E-3; Unitholders Meeting.

 

(a)           As soon as practicable following the date of this Agreement, MLP and Parent shall prepare and file with the SEC the Proxy Statement and the Rule 13e-3 transaction statement on Schedule 13E-3 (as amended or supplemented, the “Schedule 13E-3”). MLP shall use its commercially reasonable efforts to cause the Proxy Statement to be mailed to the Common Unitholders as promptly as practicable following the date of this Agreement. No filing of, or amendment or supplement to, including by incorporation by reference, the Proxy Statement or the Schedule 13E-3 will be made by any Party without providing the other Parties a reasonable opportunity to review and comment thereon. If at any time prior to the Effective Time any information relating to MLP or Parent, or any of their respective Affiliates, directors or officers, is discovered by MLP or Parent that should be set forth in an amendment or supplement to either the Proxy Statement or the Schedule 13E-3, so that any such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Party that discovers such information shall promptly notify the other Parties and an appropriate amendment or supplement describing such information shall be jointly prepared and promptly filed with the SEC and, to the extent required by Law, disseminated to the Common Unitholders. The Parties shall notify each other promptly of the receipt of any comments from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to either of the Proxy Statement or the Schedule 13E-3 or for additional information and shall supply each other with copies of all correspondence between it or any of its directors, officers, employees, investment bankers, financial advisors, attorneys, accountants, agents and other representatives (“Representatives”), on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Proxy Statement and the Schedule 13E-3 or the transactions contemplated by this Agreement.

 

(b)           MLP shall, as soon as practicable following the date of this Agreement, establish a record date for, duly call, give notice of, convene and hold a special meeting of the Common Unitholders (the “Unitholders Meeting”) for the purpose of obtaining the Unitholder Approval. Subject to Section 5.3, the MLP Board shall, acting upon the recommendation of the Conflicts Committee, recommend to the Common Unitholders approval of this Agreement (the “MLP Board Recommendation”), and MLP shall use its commercially reasonable efforts to solicit from the Common Unitholders proxies in favor of the Merger and to take all other action necessary or advisable to secure the Unitholder Approval. The Proxy Statement shall include, subject to Section 5.3, the MLP Board Recommendation. Once the Unitholders Meeting has been called and noticed, MLP shall not postpone or adjourn the Unitholders Meeting without the consent of Parent (other than (i) in order to obtain a quorum of the Common Unitholders or (ii) as reasonably determined by MLP to comply with applicable Law); provided that in no event shall the Unitholders Meeting be adjourned or postponed for longer than 10 days without the prior written consent of Parent. In no event shall any matter be submitted to the Common Unitholders at the Unitholders Meeting other than the matters specifically contemplated by this Agreement without the prior written consent of Parent.

 

(c)           Unless this Agreement is validly terminated in accordance with Article VII, MLP shall submit this Agreement to the Unitholders for approval at the Unitholders Meeting even if the Conflicts Committee shall have effected an Adverse Recommendation Change.

 

 

Section 5.2            Conduct of Business. Except (i) as expressly permitted by this Agreement, (ii) as set forth in Section 5.2 of the MLP Disclosure Schedule, (iii) as required by applicable Law, (iv) as provided for or contemplated by any Material Contract in effect as of the date of this Agreement (including the Partnership Agreement) or (v) as agreed in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement until the Effective Time, MLP shall, and shall cause each of its Subsidiaries to, (A) conduct its business in the ordinary course of business consistent with past practice, (B) use commercially reasonable efforts to maintain and preserve intact its business organization and the goodwill of those having business relationships with it and retain the services of its present officers and key employees, (C) use commercially reasonable efforts to keep in full force and effect all material Permits and all material insurance policies maintained by MLP and its Subsidiaries, other than changes to such policies made in the ordinary course of business, and (D) use commercially reasonable efforts to comply in all material respects with all applicable Laws and the requirements of all Material Contracts; provided that, in each case, MLP and its Subsidiaries may continue any necessary changes in their respective business practices adopted prior to the date hereof that are reasonably required by any COVID-19 Measures and, after the date hereof, may take further actions in good faith that are reasonably required to respond to COVID-19 by any COVID-19 Measures. MLP shall not, and MLP shall cause its Subsidiaries and use its reasonable best efforts to cause its Representatives not to, directly or indirectly solicit, initiate, knowingly facilitate, knowingly encourage (including by way of furnishing confidential information) or knowingly induce or take any other action intended to lead to any inquiries or any proposals that constitute or could reasonably be expected to lead to any inquiry, proposal or offer from any Person or “group” (as defined in Section 13(d) of the Exchange Act), other than Parent, its Subsidiaries, and their Affiliates, relating to any (A) direct or indirect acquisition (whether in a single transaction or a series of related transactions) of assets of MLP and its Subsidiaries, (B) direct or indirect acquisition (whether in a single transaction or a series of related transactions) of beneficial ownership (within the meaning of Section 13 under the Exchange Act) of any class of equity securities of MLP, (C) tender offer or exchange offer that if consummated would result in any Person or “group” (as defined in Section 13(d) of the Exchange Act) beneficially owning any class of equity securities of MLP, or (D) merger, consolidation, unit exchange, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving MLP or any of its Subsidiaries, other than the transactions contemplated hereby and other than in the ordinary course of business. During the period from the date of this Agreement until the Effective Time, if permitted by applicable Law, MLP shall declare and pay regular quarterly cash distributions to the holders of each of the Common Units and the Series A Preferred Units, respectively, consistent with past practice; provided that, in no event shall the regular quarterly cash distributions declared or paid by MLP to the holders of Common Units and Preferred Units be less than $0.01 per Common Unit and $0.546875 per Preferred Unit, respectively. Without limiting anything in this Section 5.2, it is understood that violations of Section 5.2 caused by or at the direction of Parent or any of its Affiliates shall not be a violation or breach of this Section 5.2 by MLP.

 

Section 5.3            Adverse Recommendation Change.

 

(a)           Except as permitted by Section 5.3(b), MLP shall not, and shall cause its Subsidiaries not to, and the foregoing shall use their commercially reasonable efforts to cause their respective Representatives not to, directly or indirectly (i) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Parent, the MLP Board Recommendation or (ii) fail to include the MLP Board Recommendation in the Proxy Statement (the taking of any action described in clauses (i) or (ii) being referred to as an “Adverse Recommendation Change”). Without limiting the foregoing, it is understood that any violation of the foregoing restrictions by MLP’s Subsidiaries, or MLP’s Representatives, other than any violation caused by or at the direction of Parent, shall be deemed to be a breach of this Section 5.3 by MLP.

 

 

(b)           Notwithstanding anything to the contrary in this Agreement, at any time prior to obtaining the Unitholder Approval, and subject to compliance in all material respects with this Section 5.3(b), the Conflicts Committee may make an Adverse Recommendation Change on behalf of the MLP Board, provided, however, that the Conflicts Committee may not effect an Adverse Recommendation Change unless:

 

(i)            the Conflicts Committee determines in good faith, after consultation with its outside legal counsel, that failure to effect an Adverse Change Recommendation would be adverse to the interests of the Unaffiliated Unitholders or would otherwise be a breach of its duties under the Partnership Agreement and applicable Law;

 

(ii)           the Conflicts Committee has provided prior written notice to Parent at least five days in advance of its intention to take such action, unless at the time such notice is otherwise required to be given there are less than five days prior to the Unitholders Meeting, in which case the Conflicts Committee shall provide as much notice as is practicable (the period inclusive of all such days, the “MLP Notice Period”); and

 

(iii)          during the MLP Notice Period, the Conflicts Committee has negotiated, and has used its commercially reasonable efforts to cause its financial advisors and outside legal counsel to negotiate, with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that the failure to effect such Adverse Recommendation Change would not be adverse to the interests of the Unaffiliated Unitholders or would not otherwise be a breach of its duties under the Partnership Agreement and applicable Law, provided, however, that the Conflicts Committee shall take into account all changes to the terms of this Agreement proposed by Parent in determining whether to make an Adverse Recommendation Change.

 

Section 5.4            Commercially Reasonable Efforts.

 

(a)           Subject to the terms and conditions of this Agreement (including Section 5.4(d)), Parent and the General Partner, on the one hand, and MLP, on the other hand, shall cooperate with the other and use (and shall cause their respective Subsidiaries to use) commercially reasonable efforts to (i) take, or cause to be taken, all actions, and do, or cause to be done, all things, necessary, proper or advisable to cause the conditions to the Closing to be satisfied as promptly as practicable (and in any event no later than the Outside Date (as defined herein)) and to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated hereby, including preparing and filing promptly and fully all documentation to effect all necessary filings, notifications, notices, petitions, statements, registrations, submissions of information, applications and other documents (including any required or recommended filings under applicable Antitrust Laws), (ii) obtain promptly (and in any event no later than the Outside Date) all approvals, consents, clearances, expirations or terminations of waiting periods, registrations, permits, authorizations and other confirmations from any Governmental Authority or third party necessary, proper or advisable to consummate the transactions contemplated hereby, (iii) defend any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the transactions contemplated hereby or seek to have lifted or rescinded any injunction or restraining order or other order adversely affecting the ability of the parties to consummate the transactions contemplated hereby, and (iv) obtain all necessary consents, approvals or waivers from third parties.

 

 

(b)           In furtherance and not in limitation of the foregoing, (i) each Party (including by their respective Subsidiaries) agrees to make an appropriate filing (if required) of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby as promptly as practicable and in any event within 10 business days after the date of this Agreement (unless a later date is mutually agreed to by the Parties) and to supply as promptly as practicable any additional information and documentary material that may be requested by any Governmental Authority pursuant to the HSR Act or any other Antitrust Law and use its commercially reasonable efforts to take, or cause to be taken (including by their respective Subsidiaries), all other actions consistent with this Section 5.4 necessary to cause the expiration or termination of any applicable waiting periods under the HSR Act as soon as practicable (and in any event no later than the Outside Date); and (ii) MLP and Parent shall each use its commercially reasonable efforts to (A) take all action necessary to ensure that no state takeover statute or similar Law is or becomes applicable to any of the transactions contemplated hereby and (B) if any state takeover statute or similar Law becomes applicable to any of the transactions contemplated hereby, take all action necessary to ensure that such transaction may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise minimize the effect of such Law on the transaction.

 

(c)           Each of the Parties shall use (and shall cause their respective Subsidiaries to use) its commercially reasonable efforts to (i) cooperate in all respects with each other in connection with any filing or submission with a Governmental Authority in connection with the transactions contemplated hereby, including by providing the other Parties a reasonable opportunity to review and comment thereon, and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the transactions contemplated hereby, including any proceeding initiated by a private Person, (ii) promptly inform each other Party of (and supply to the other Parties) any communication received by such Party from, or given by such Party to, the Federal Trade Commission, the Antitrust Division of the Department of Justice, or any other Governmental Authority and any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the transactions contemplated hereby, (iii) permit each other Party to review in advance and incorporate the other Parties’ reasonable comments in any communication to be given by it to any Governmental Authority with respect to obtaining any clearances required under any Antitrust Law in connection with the transactions contemplated hereby, and (iv) consult with each other Party in advance of any meeting or teleconference with any Governmental Authority or, in connection with any proceeding by a private Person, with any other Person and, to the extent not prohibited by the Governmental Authority or other Person, give each other Party the opportunity to attend and participate in such meetings and teleconferences. Parent shall have the principal responsibility for devising and implementing the strategy for obtaining any clearances required under any Antitrust Law in connection with the transactions contemplated hereby and shall take the lead in all meetings and communications with any Governmental Authority in connection with obtaining such clearances, provided, however, that Parent shall consult in advance with MLP and in good faith take MLP’s views into account regarding the overall strategy. Subject to Section 5.6(b), the Parties shall take reasonable efforts to share information protected from disclosure under the attorney-client privilege, work product doctrine, joint defense privilege or any other privilege pursuant to this Section 5.4 in a manner so as to preserve the applicable privilege.

 

 

(d)           Parent and MLP (including by causing their respective Subsidiaries) agree to use their commercially reasonable efforts to (i) resolve any objections that a Governmental Authority or other Person may assert under any Antitrust Law with respect to the transactions contemplated hereby, and (ii) avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority with respect to the transactions contemplated hereby, in each case, so as to enable the Closing to occur as promptly as practicable and in any event no later than the Outside Date. Notwithstanding the foregoing, nothing in this Agreement shall impose any requirement on Parent, MLP or their respective Affiliates to dispose, transfer, separate or encumber any assets, businesses or operations or agree to any such disposition, transfer or separation of, or any encumbrance (behavioral or otherwise) on or any remedial action with respect to, any assets, businesses or operations, to avoid or eliminate any impediment under any Antitrust Law.

 

Section 5.5            Public Announcements. The initial press release with respect to the execution of this Agreement shall be a joint press release to be reasonably agreed upon by Parent and MLP. Thereafter, except in connection with an Adverse Recommendation Change, neither MLP nor Parent shall issue or cause the publication of any press release or other public announcement (to the extent not previously issued or made in accordance with this Agreement) with respect to this Agreement or the transactions contemplated hereby without the prior consent of each other Party (which consent shall not be unreasonably withheld or delayed), except as may be required by Law or by any applicable listing agreement with the NYSE or other relevant securities exchange as determined in the good faith judgment of the Party proposing to make such release (in which case such party shall not issue or cause the publication of such press release or other public announcement without prior consultation with each other Party); provided, however, that each Party and their respective controlled Affiliates may make statements that are consistent with statements made in previous press releases, public disclosures or public statements made by Parent or MLP in compliance with this Section 5.5.

 

Section 5.6            Access to Information; Confidentiality.

 

(a)           Upon reasonable notice and subject to applicable Laws relating to the exchange of information, MLP shall, and shall cause each of its Subsidiaries to, afford to Parent and its Representatives reasonable access during normal business hours (and, with respect to books and records, the right to copy) to all of its and its Subsidiaries’ properties, commitments, books, Contracts, records and correspondence (in each case, whether in physical or electronic form), officers, employees, accountants, counsel, financial advisors and other Representatives. Each Party shall furnish promptly to each other Party a copy of each report, schedule and other document filed or submitted by it pursuant to the requirements of federal or state securities Laws and a copy of any communication (including “comment letters”) received by such Party from the SEC concerning compliance with securities Laws.

 

 

(b)           This Section 5.6 shall not require either Party to permit any access, or to disclose any information, that in the reasonable, good-faith judgment (after consultation with counsel, which may be in-house counsel) of such Party would reasonably be expected to result in (i) any violation of any contract or Law to which such Party or its Subsidiaries is a party or is subject or cause any privilege (including attorney-client privilege) that such Party or any of its Subsidiaries would be entitled to assert to be undermined with respect to such information and such undermining of such privilege could in such Party’s good-faith judgment (after consultation with counsel, which may be in-house counsel) adversely affect in any material respect such Party’s position in any pending or, what such Party believes in good faith (after consultation with counsel, which may be in-house counsel) could be, future litigation, or (ii) if such Party or any of its Subsidiaries, on the one hand, and each other Party or any of their Subsidiaries, on the other hand, are adverse parties in a litigation, such information being reasonably pertinent thereto; provided that, in the case of clause (i), the Parties shall cooperate in seeking to find a way to allow disclosure of such information (including by entering into a joint-defense or similar agreement) to the extent doing so (A) would not (in the good-faith belief of the Party being requested to disclose the information (after consultation with counsel, which may be in-house counsel)) reasonably be likely to result in the violation of any such contract or Law or reasonably be likely to cause such privilege to be undermined with respect to such information or (B) could reasonably (in the good-faith belief of the Party being requested to disclose the information (after consultation with counsel, which may be in-house counsel)) be managed through the use of customary “clean-room” arrangements pursuant to which appropriately designated Representatives of each other Party shall be provided access to such information; provided, further, that the Party being requested to disclose the information shall (1) notify each other Party that such disclosures are reasonably likely to violate its or its Subsidiaries’ obligations under any such contract or Law or are reasonably likely to cause such privilege to be undermined, (2) communicate to each other Party in reasonable detail the facts giving rise to such notification and the subject matter of such information (to the extent it is able to do so in accordance with the first proviso in this Section 5.6(b)), and (3) in the case where such disclosures are reasonably likely to violate its or its Subsidiaries’ obligations under any contract, use reasonable commercial efforts to seek consent from the applicable third party to any such contract with respect to the disclosures prohibited thereby (to the extent not otherwise expressly prohibited by the terms of such contract).

 

(c)           No investigation, or information received, pursuant to this Section 5.6 will modify any of the representations and warranties of the Parties.

 

Section 5.7            Notification of Certain Matters. MLP shall give prompt notice to Parent, and Parent shall give prompt notice to MLP, of (i) any notice or other communication received by such Party from any Governmental Authority in connection with the transactions contemplated hereby or from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated hereby, if the subject matter of such communication or the failure of such Party to obtain such consent is reasonably likely to be material to MLP or Parent, (ii) any actions, suits, claims, investigations or proceedings commenced or, to such Party’s knowledge, threatened against, relating to or involving or otherwise affecting such Party or any of its Subsidiaries and that relate to the transactions contemplated hereby, (iii) the discovery of any fact or circumstance that, or the occurrence or non-occurrence of any event the occurrence or nonoccurrence of which, would result in the failure to be satisfied of any of the conditions to the Closing in Article VI and (iv) any material failure of such Party to comply with or satisfy any covenant or agreement to be complied with or satisfied by it hereby which would result in the failure to be satisfied of any of the conditions to the Closing in Article VI; provided that, in the case of clauses (iii) and (iv), the failure to comply with this Section 5.7 shall not result in the failure to be satisfied of any of the conditions to the Closing in Article VI, or give rise to any right to terminate this Agreement under Article VII, if the underlying fact, circumstance, event or failure would not in and of itself give rise to such failure or right.

 

 

Section 5.8            Indemnification and Insurance.

 

(a)           For purposes of this Section 5.8,“Indemnified Person” means any Person who is now, or has been or becomes at any time prior to the Effective Time, an officer or director of MLP or any of its Subsidiaries, and also with respect to any such Indemnified Person, in his or her capacity as a director, officer, employee, member, trustee or fiduciary of another corporation, foundation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise (whether or not such other entity or enterprise is affiliated with MLP) serving at the request of or on behalf of MLP or any of its Subsidiaries, together with such Indemnified Person’s heirs, executors or administrators.

 

(b)           From and after the Effective Time, to the fullest extent that MLP or any applicable Subsidiary thereof would be permitted to indemnify an Indemnified Person, (i) Parent shall indemnify and hold harmless against any cost or expenses (including attorneys’ fees), judgments, fines, losses, claims, damages or liabilities and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) in connection with any Proceeding, and provide advancement promptly, and in any event within 10 days after any written request, of expenses to, all Indemnified Persons to the fullest extent permitted under applicable Law and (ii) the Surviving Entity shall honor the provisions regarding elimination of liability of directors, indemnification of officers, directors and employees and advancement of expenses contained in the MLP Charter Documents and the Charter Documents of any Subsidiary of MLP immediately prior to the Effective Time and ensure that the organizational documents of the Surviving Entity shall, for a period of six years following the Effective Time, contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors, officers and agents of MLP and its Subsidiaries than are presently set forth in the MLP Charter Documents. Any right of indemnification of an Indemnified Person pursuant to this Section 5.8(b) shall not be amended, repealed or otherwise modified at any time in a manner that would adversely affect the rights of such Indemnified Person as provided herein.

 

(c)           The Surviving Entity shall maintain in effect for six years from the Effective Time MLP’s current directors’ and officers’ liability insurance policies covering acts or omissions occurring at or prior to the Effective Time with respect to Indemnified Persons (provided that, with the written consent of Parent obtained prior to the Effective Time, the Surviving Entity may substitute therefor policies with reputable carriers of at least the same coverage containing terms and conditions that are no less favorable to the Indemnified Persons); provided, however, that in no event shall the Surviving Entity be required to expend pursuant to this Section 5.8(c) more than an amount per year equal to 300% of current annual premiums paid by MLP or the General Partner for such insurance (the “Maximum Amount”). In the event that, but for the proviso to the immediately preceding sentence, the Surviving Entity would be required to expend more than the Maximum Amount, the Surviving Entity shall obtain the maximum amount of such insurance as is available for the Maximum Amount. MLP shall, prior to the Effective Time, purchase a “tail policy” with respect to acts or omissions occurring or alleged to have occurred prior to the Effective Time that were committed or alleged to have been committed by such Indemnified Persons in their capacity as such.

 

 

(d)           The rights of any Indemnified Person under this Section 5.8 shall be in addition to any other rights such Indemnified Person may have under the organizational documents of MLP, the Surviving Entity, Parent, the Marshall Islands LP Act or the Marshall Islands LLC Act. The provisions of this Section 5.8 shall survive the consummation of the transactions contemplated hereby for a period of six years and are expressly intended to benefit each of the Indemnified Persons and their respective heirs and representatives; provided, however, that in the event that any claim or claims for indemnification or advancement set forth in this Section 5.8 are asserted or made within such six-year period, all rights to indemnification and advancement in respect of any such claim or claims shall continue until disposition of all such claims. If the Surviving Entity or any of its successors or assigns (i) consolidates with or merges into any other Person, or (ii) transfers or conveys all or substantially all of their businesses or assets to any other Person, then, in each such case, to the extent necessary, a proper provision shall be made so that the successors and assigns of the Surviving Entity shall assume the obligations of the Surviving Entity forth in this Section 5.8.

 

Section 5.9            Securityholder Litigation. MLP shall give Parent the opportunity to participate in the defense or settlement of any securityholder litigation against MLP and/or its officers and directors relating to the transactions contemplated hereby; provided that MLP shall in any event control such defense and/or settlement and shall not be required to provide information if doing so would be reasonably expected to threaten the loss of any attorney-client privilege or other applicable legal privilege.

 

Section 5.10          Tax Matters. Based on reasonable diligence, MLP believes, as of the date of this Agreement, that neither MLP nor any of its Subsidiaries was a “passive foreign investment company” within the meaning of section 1297 of the Code (a “PFIC”) for the 2021 Tax year or any prior Tax year, and based on its current and projected methods of operation, MLP expects, as of the date of this Agreement, that neither MLP nor any of its Subsidiaries will be a PFIC for the 2022 Tax year. After the Effective Time, unless otherwise required by applicable Law, Parent shall not, and shall cause its Affiliates (including MLP) not to, make or change any election for Taxes or amend any Tax Return, in each case relating to a period of MLP (or portion thereof) ending prior to the Effective Time to the extent such action would have a material adverse impact on MLP, its Subsidiaries, the holders of the Common Units or the holders of the Series A Preferred Units. Except as provided in Section 2.2(d), Parent shall pay all transfer, documentary, sales, use, stamp, registration and other similar Taxes payable by MLP or its Subsidiaries in connection with the transactions pursuant to this Agreement.

 

Section 5.11          Performance by the General Partner and MLP. Parent shall cause the General Partner and MLP and its Subsidiaries, to comply with the provisions of this Agreement. Notwithstanding the foregoing, it is understood and agreed that actions or inactions by MLP, the General Partner and their respective Subsidiaries shall not be deemed to be breaches or violations or failures to perform by MLP, the General Partner and their respective Subsidiaries of any of the provisions of this Agreement if such action or inaction was or was not taken, as applicable, at the direction of Parent or its Representatives.

 

 

Section 5.12          Conflicts Committee. Prior to the Effective Time, neither the General Partner nor Parent nor their Representatives shall, without the consent of the Conflicts Committee, cause or take any action that would cause the elimination of the Conflicts Committee, or revoke or diminish the authority of the Conflicts Committee or remove or cause the removal of any director of the MLP Board that is a member of the Conflicts Committee either as a member of the MLP Board or the Conflicts Committee, without the affirmative vote of the Conflicts Committee. For the avoidance of doubt, this Section 5.12 shall not apply to the filling of any vacancies caused by the death, incapacity or resignation of any director in accordance with the provisions of the Partnership Agreement.

 

Article VI
CONDITIONS PRECEDENT

 

Section 6.1            Conditions to Each Party’s Obligation to Effect the Merger. The respective obligations of each Party to effect the Merger shall be subject to the satisfaction (or waiver, if permissible under applicable Law) on or prior to the Closing Date of the following conditions:

 

(a)           Unitholder Approval. The affirmative vote or consent of the holders of at least a majority of the outstanding Common Units approving this Agreement and the transactions contemplated hereby, including the Merger, shall be obtained at the Unitholders Meeting or any adjournment or postponement thereof (the “Unitholder Approval”).

 

(b)           Regulatory Approval. Any authorizations, consents, orders or approvals of, or declarations or filings with, and the expirations or terminations of waiting periods required from, any Governmental Authority set forth on Section 6.1(b) of the MLP Disclosure Schedule shall have been filed, have occurred or been obtained (all such permits, approvals, filings and consents and the expiration or termination of all such waiting periods being referred to as the “Required Regulatory Approvals”), and all such Required Regulatory Approvals shall be in full force and effect.

 

(c)           No Injunctions or Restraints. No Law, injunction, judgment or ruling enacted, promulgated, issued, entered, amended or enforced by any Governmental Authority (collectively, “Restraints”) shall be in effect enjoining, restraining, preventing or prohibiting consummation of the transactions contemplated hereby or making the consummation of the transactions contemplated hereby illegal.

 

 

Section 6.2            Conditions to Obligations of the Sponsor Entities to Effect the Merger. The obligations of the Sponsor Entities to effect the Merger are further subject to the satisfaction (or waiver, if permissible under applicable Law) on or prior to the Closing Date of the following conditions:

 

(a)           Representations and Warranties. (i) The representations and warranties of MLP contained in Section 3.3(a) and Section 3.3(c) shall be true and correct in all respects, in each case both when made and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date); (ii) the representations and warranties of MLP contained in Section 3.2(a) shall be true and correct in all respects, other than immaterial misstatements or omissions, both when made and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date); and (iii) all other representations and warranties of MLP set forth herein shall be true and correct both when made and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except, in the case of this clause (iii), where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “MLP Material Adverse Effect” set forth in any individual such representation or warranty) does not have, and would not reasonably be expected to have, individually or in the aggregate, an MLP Material Adverse Effect. Parent shall have received a certificate signed on behalf of MLP by an executive officer of MLP to such effect.

 

(b)           Performance of Obligations of MLP. MLP shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date, and Parent shall have received a certificate signed on behalf of MLP by an executive officer of MLP to such effect.

 

(c)           No MLP Material Adverse Effect. Since the date of this Agreement there shall not have been any MLP Material Adverse Effect.

 

(d)           Consents. MLP shall have obtained the consents listed on Section 6.2(d) of the MLP Disclosure Schedule.

 

 

Section 6.3            Conditions to Obligations of MLP to Effect the Merger. The obligations of MLP to effect the Merger are further subject to the satisfaction (or waiver, if permissible under applicable Law) on or prior to the Closing Date of the following conditions:

 

(a)           Representations and Warranties. (i) The representations and warranties of the Sponsor Entities contained in Section 4.2(a) shall be true and correct in all respects, both when made and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), and (ii) all other representations and warranties of the Sponsor Entities set forth herein shall be true and correct both when made and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except, in the case of this clause (ii), where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” set forth in any individual such representation or warranty) does not, and would not reasonably be expected to, individually or in the aggregate, prevent or materially impede, interfere with or hinder the consummation of the transactions contemplated by this Agreement, including the Merger. MLP shall have received a certificate signed on behalf of Parent by an executive officer of Parent to such effect.

 

 

(b)           Performance of Obligations of the Sponsor Entities. The Sponsor Entities shall have performed in all material respects all obligations required to be performed by them under this Agreement at or prior to the Closing Date, and MLP shall have received a certificate signed on behalf of Parent by an executive officer of Parent to such effect.

 

Section 6.4            Frustration of Closing Conditions. Neither MLP nor Parent may rely on the failure of any condition set forth in Section 6.1, Section 6.2 or Section 6.3, as the case may be, to be satisfied if such failure was caused by such Party’s failure to use its commercially reasonable efforts to consummate the Merger and the other transactions contemplated hereby, or other breach of or noncompliance with this Agreement.

 

Article VII  

TERMINATION

 

Section 7.1            Termination. This Agreement may be terminated and the transactions contemplated hereby abandoned at any time prior to the Effective Time:

 

(a)           by the mutual written consent of MLP and Parent duly authorized by each of the Conflicts Committee and the Parent Board, respectively;

 

(b)           by either of Parent or, following authorization by the Conflicts Committee, MLP:

 

(i)            if the Closing shall not have been consummated on or before November 23, 2022 (the “Outside Date”); provided that the right to terminate this Agreement under this Section 7.1(b)(i) shall not be available (i) to a Party if the inability to satisfy such condition was due to the failure of such Party or its Affiliates to perform any of its obligations under this Agreement or (ii) to a Party if any other Party has filed (and is then pursuing) an action seeking specific performance as permitted by Section 8.8;

 

(ii)           if any Restraint having the effect set forth in Section 6.1(c) shall be in effect and shall have become final and nonappealable; provided, however, that the right to terminate this Agreement under this Section 7.1(b)(ii) shall not be available to a Party if such Restraint was due to the failure of such Party to perform any of its obligations under this Agreement; or

 

(iii)          if the Unitholders Meeting shall have concluded and the Unitholder Approval shall not have been obtained; provided, however, that the right to terminate this Agreement under this Section 7.1(b)(iii) shall not be available to a terminating Party if the failure to obtain the Unitholder Approval shall have been caused by the action or failure to act of such Party and such action or failure to act constitutes a breach by such Party of this Agreement;

 

(c)           by Parent:

 

(i)            if an Adverse Recommendation Change shall have occurred; or

 

 

(ii)           if MLP shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement (or if any of the representations or warranties of MLP set forth in this Agreement shall fail to be true), which breach or failure (i) would (if it occurred or was continuing as of the Closing Date) give rise to the failure of a condition set forth in Section 6.2(a) or Section 6.2(b) and (ii) is incapable of being cured, or is not cured by MLP within 30 days following receipt of written notice from Parent of such breach or failure; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.1(c)(ii) if Parent, the General Partner or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; or

 

(d)           by MLP if a Sponsor Entity shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement (or if any of the representations or warranties of the Sponsor Entities set forth in this Agreement shall fail to be true), which breach or failure (i) would (if it occurred or was continuing as of the Closing Date) give rise to the failure of a condition set forth in Section 6.3(a) or (b) and (ii) is incapable of being cured, or is not cured by the applicable Sponsor Entity within 30 days following receipt of written notice from MLP of such breach or failure; provided that MLP shall not have the right to terminate this Agreement pursuant to this Section 7.1(d) (A) if MLP is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement and (B) without such termination first being authorized by the Conflicts Committee.

 

Section 7.2            Effect of Termination. In the event of the termination of this Agreement as provided in Section 7.1, written notice thereof shall be given to the other Party or Parties, specifying the provision of this Agreement pursuant to which such termination is made, and this Agreement shall forthwith become null and void (other than the provisions in this Section 7.2 and Section 7.3, and the provisions in Article VIII, all of which shall survive termination of this Agreement), and there shall be no liability on the part of MLP or Parent or their respective directors, officers and Affiliates, except (i) MLP, Parent and/or Merger Sub may have liability as provided in Section 7.3, and (ii) nothing shall relieve any Party from any liability or damages for any failure to consummate the Merger and the other transactions contemplated hereby when required pursuant to this Agreement or any Party from liability for fraud or a willful breach of any covenant or other agreement contained in this Agreement.

 

Section 7.3            Fees and Expenses.

 

(a)           Whether or not the Merger is consummated, all reasonable, documented out-of-pocket expenses (including all fees and expenses of counsel, accountants, investment bankers, experts and consultants to a Party and its Affiliates) incurred by a Party or on its behalf in connection with or related to the authorization, preparation, negotiation, execution and performance of this Agreement and the transactions contemplated hereby, including the preparation, printing, filing and mailing of the Proxy Statement and the solicitation of the Unitholder Approval, and all other matters, including costs and expenses of litigation, related to the transactions contemplated by this Agreement shall be paid by the Party incurring such expenses; provided that expenses relating to the preparation, printing, filing and mailing of the Proxy Statement and the solicitation of the Unitholder Approval shall be paid 50% by Parent and 50% by MLP. This Section 7.3 shall survive any termination of this Agreement.

 

 

Article VIII

MISCELLANEOUS

 

Section 8.1            No Survival, Etc. Except as otherwise provided in this Agreement, the representations, warranties and agreements of each Party shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any other Party, whether prior to or after the execution of this Agreement. The representations, warranties and agreements in this Agreement shall terminate at the Effective Time or, except as otherwise provided in Section 7.2, upon the termination of this Agreement pursuant to Section 7.1, as the case may be, except that the agreements set forth in Article II and Section 5.8 and any other agreement in this Agreement that contemplates performance after the Effective Time shall survive the Effective Time and those set forth in Section 7.2, Section 7.3 and this Article VIII shall survive termination of this Agreement.

 

Section 8.2            Amendment or Supplement. At any time prior to the Effective Time, this Agreement may be amended or supplemented in any and all respects, whether before or after receipt of the Unitholder Approval by written agreement of the Parties; provided, however, that (i) following approval of the Merger and the other transactions contemplated hereunder by the Common Unitholders, there shall be no amendment or change to the provisions of this Agreement which by Law would require further approval by the Common Unitholders without such approval and (ii) MLP may not, without the prior written approval of the Conflicts Committee, agree to any amendment or modification of this Agreement. Unless otherwise expressly set forth in this Agreement, whenever a determination, decision, approval or consent of MLP is required pursuant to this Agreement, such determination, decision, approval or consent must be authorized by the Conflicts Committee.

 

Section 8.3            Extension of Time, Waiver, Etc. At any time prior to the Effective Time, any Party may, subject to applicable Law, (i) waive any inaccuracies in the representations and warranties of any other Party, (ii) extend the time for the performance of any of the obligations or acts of any other Party or (iii) waive compliance by the other Party with any of the agreements contained herein or, except as otherwise provided herein, waive any of such Party’s conditions; provided, however, that MLP may not make or authorize any such waiver or extension without the prior approval of the Conflicts Committee. Notwithstanding the foregoing, no failure or delay by MLP or Parent in exercising any right 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 hereunder. Any agreement on the part of a Party to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such Party.

 

Section 8.4            Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned, in whole or in part, by operation of Law or otherwise, by any of the Parties without the prior written consent of the other Parties, except that Parent may assign, in its sole discretion, any of or all its rights, interests and obligations under this Agreement to any wholly owned Subsidiary of Parent, but no such assignment shall relieve Parent of any of its obligations hereunder. Subject to the preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the Parties and their respective successors and permitted assigns. Any purported assignment not permitted under this Section 8.4 shall be null and void.

 

 

Section 8.5            Counterparts. This Agreement may be executed in counterparts (each of which shall be deemed to be an original but all of which taken together shall constitute one and the same agreement) and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties.

 

Section 8.6           Entire Agreement; No Third-Party Beneficiaries. This Agreement, the Support Agreement and the MLP Disclosure Schedule (i) constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, among the Parties with respect to the subject matter of this Agreement and thereof and (ii) shall not confer upon any Person other than the Parties any rights (including third-party beneficiary rights or otherwise) or remedies hereunder, except for, in the case of clause (ii), (A) the provisions of Section 5.8 and Section 8.12 and (B) the right of the Common Unitholders to receive the Merger Consideration after the Closing (a claim by the Common Unitholders with respect to which may not be made unless and until the Closing shall have occurred).

 

Section 8.7             Governing Law; Jurisdiction; Waiver of Jury Trial.

 

(a)           Except to the extent that the laws of the jurisdiction of organization of any party hereto, or any other jurisdiction, are mandatorily applicable to the Merger or to matters arising under or in connection with this Agreement, this Agreement and all disputes and controversies arising hereunder or related hereto shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its rules of conflicts of laws that would apply any other law.

 

(b)           Each of the Parties irrevocably agrees that any legal action or proceeding with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder brought by the other Parties or their successors or assigns, shall be brought and determined exclusively in the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware (or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware). Each of the Parties hereby irrevocably submits with regard to any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than the aforesaid courts. Each of the Parties hereby irrevocably waives, and agrees not to assert as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement, (i) any claim that it is not personally subject to the jurisdiction of the above named courts for any reason other than the failure to serve in accordance with this Section 8.7, (ii) any claim that it or its property is exempt or immune from the 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 (iii) to the fullest extent permitted by the applicable Law, any claim that (A) the suit, action or proceeding in such court is brought in an inconvenient forum, (B) the venue of such suit, action or proceeding is improper or (C) this Agreement, or the subject matter hereof, may not be enforced in or by such courts. The Parties hereby consent to and grant any such court jurisdiction over the person of such Parties solely for such purpose and over the subject matter of such dispute and, to the fullest extent permitted by Law, agree that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section 8.9 or in such other manner as may be permitted by applicable Laws shall be valid and sufficient service thereof.

 

 

(c)           EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF ANY PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT OF THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.

 

Section 8.8            Specific Enforcement. The Parties agree that irreparable damage would occur and that the Parties would not have any adequate remedy at law in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached, and it is accordingly agreed that the Parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, in each case, in accordance with this Section 8.8 in the Delaware Court of Chancery or any federal court sitting in the State of Delaware, this being in addition to any other remedy to which they are entitled at law or in equity. Each of the Parties agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief as provided herein on the basis that (i) either Party has an adequate remedy at law or (ii) an award of specific performance is not an appropriate remedy for any reason at law or equity. Each Party further agrees that no Party shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 8.8, and each Party irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.

 

Section 8.9            Notices. All notices, requests and other communications to any Party hereunder shall be in writing and shall be deemed given if delivered personally, by facsimile (which is confirmed) or electronic transmission, or sent by overnight courier (providing proof of delivery) to the Parties at the following addresses:

 

If to Parent, to:

 

Höegh LNG Holdings Ltd.

Canon’s Court

22 Victoria Street

Hamilton, HM 12, Bermuda

Attention.:

Thor Jørgen Guttormsen, Interim President and Chief Executive Officer

Email:

[email protected]

 

with a copy (which shall not constitute notice) to:

 

 

Kirkland & Ellis LLP

609 Main Street

Houston, Texas 77002

Attention:

Sean T. Wheeler, P.C.

Enoch Varner

Email:

[email protected];

[email protected]

 

If to MLP, to:

 

Höegh LNG Partners LP

Canon’s Court

22 Victoria Street

Hamilton, HM 12, Bermuda

Attention:

Håvard Furu, Interim Chief Executive Officer and Chief Financial Officer

Email:

[email protected]

 

with a copy to each of (which shall not constitute notice) to:

 

Baker Botts L.L.P.

700 K Street, NW

Washington, DC 20001

 

Attention:

Catherine Gallagher

Michael Swidler

 

Email:

[email protected];

[email protected]

 

Richards, Layton & Finger, P.A.

One Rodney Square, 920 North King Street

Wilmington, DE 19801

Attention:

Kenneth Jackman

Srinivas M. Raju

Email:

[email protected];

[email protected]

 

or such other address or facsimile number as such Party may hereafter specify by like notice to the other Parties. All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. in the place of receipt and such day is a business day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed not to have been received until the succeeding business day in the place of receipt.

 

 

Section 8.10          Severability. If any term or other provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other terms, provisions and conditions of this Agreement shall nevertheless remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible to the fullest extent permitted by applicable law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.

 

Section 8.11          Interpretation.

 

(a)           When a reference is made in this Agreement to an Article, a Section, Exhibit or Schedule, such reference shall be to an Article of, a Section of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. References to a Person are also to its permitted successors and assigns.

 

(b)           The Parties have participated jointly in the negotiation and drafting of this Agreement with the assistance of counsel and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement or interim drafts of this Agreement.

 

Section 8.12          Non-Recourse. No past, present or future director, officer, employee, incorporator, member, partner, stockholder, agent, attorney, representative or affiliate of any Party or any of their respective Affiliates (unless such Affiliate is expressly a Party) shall have any liability (whether in contract or in tort) for any obligations or liabilities of such Party arising under, in connection with or related to this Agreement or for any claim based on, in respect of, or by reason of, the transactions contemplated hereby; provided, however, that nothing in this Section 8.12 shall limit any liability of the Parties to this Agreement or the parties to the Support Agreement for breaches of the terms and conditions of this Agreement and the Support Agreement, as applicable.

 

 

Section 8.13          Definitions. As used in this Agreement, the following terms have the meanings ascribed thereto below:

 

“Affiliate” means, as to any Person, any other Person that, directly or indirectly, controls, or is controlled by, or is under common control with such Person. For this purpose, “control” (including, with its correlative meanings, “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or partnership or other ownership interests, by contract or otherwise; provided, however, that for purposes of this Agreement, unless expressly provided otherwise, MLP and its Subsidiaries shall not be considered Affiliates of Parent or any of Parent’s other Affiliates, nor shall Parent or any of Parent’s Affiliates be considered Affiliates of MLP or its Subsidiaries.

 

“Antitrust Laws” means the HSR Act and all other applicable Laws issued by a Governmental Authority that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition.

 

“business day” means a day except a Saturday, a Sunday or other day on which the SEC or banks in the City of New York are authorized or required by Law to be closed.

 

“Charter Documents” means, with respect to any entity at any time, in each case as amended, modified and supplemented at that time, (i) the articles and, where relevant, the memorandum of association or certificate of formation, incorporation, partnership or organization (or the equivalent organizational documents) of that entity, (ii) the bylaws, partnership agreement or limited liability company agreement or regulations (or the equivalent governing documents) of that entity, and (iii) each document setting forth the designation, amount and relative rights, limitations and preferences of any class or series of that entity’s equity interests or of any rights in respect of that entity’s equity interests.

 

“Common Unit” means a Common Unit as defined in the Partnership Agreement.

 

“Common Unitholders” mean the holders of the Common Units.

 

“Contract” means a debenture, note, bond, mortgage, indenture, deed of trust, license, lease, contract or other agreement, instrument or obligation.

 

“COVID-19” means SARS-CoV-2 or COVID-19, and any variants, evolutions, mutations or additional waves thereof or related or associated epidemics, pandemics or disease outbreaks.

 

“COVID-19 Measures” means any quarantine, shelter in place, stay at home, social distancing, shut down, closure or sequester order or any other Law, in each case by a Governmental Authority in connection with or in response to COVID-19.

 

“Environmental Law” means any Law relating to (i) the protection, preservation or restoration of the environment (including air, surface water, groundwater, drinking water supply, surface land, subsurface land, plant and animal life or any other environmental media or natural resource), (ii) pollution, (iii) human or worker health and safety (regarding Hazardous Substances), or (iv) the exposure to, or the use, storage, recycling, treatment, generation, transportation, processing, handling, labeling, production, release or disposal of Hazardous Substances, in each case as in effect at or prior to the Closing Date.

 

 

“GAAP” means generally accepted accounting principles in the United States.

 

“General Partner Charter Documents” means, collectively, the certificate of formation of the General Partner, and the Amended and Restated Limited Liability Company Agreement of the General Partner, as amended or supplemented from time to time.

 

“General Partner Interest” has the meaning set forth in the Partnership Agreement.

 

“Governmental Authority” means any government, court, arbitrator, regulatory or administrative agency, commission or authority or other governmental instrumentality, whether federal, state or local, domestic, tribal, foreign or multinational.

 

“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.

 

“Incentive Distribution Right” has the meaning set forth in the Partnership Agreement.

 

“Knowledge” means, with respect to MLP, the actual knowledge of those individuals listed on Section 8.13 of the MLP Disclosure Schedule and, with respect to Parent, the actual knowledge of Håvard Furu and Camilla Nyhus-Møller.

 

“Law” means any federal, state, local or foreign or provincial law, statute, tariff, ordinance, rule, regulation, judgment, order, injunction, writ, stipulation, determination, award or decree or agency requirement of or undertaking to any Governmental Authority, including common law.

 

“Liens” means, collectively, liens, pledges, charges, mortgages, encumbrances, options, rights of first refusal or other preferential purchase rights, adverse rights or claims and security interests of any kind or nature whatsoever (including any restriction on the right to vote or transfer, except for such transfer restrictions of general applicability as provided under the Securities Act and the “blue sky” laws of the various states of the United States).

 

“Long-Term Incentive Plan” means the 2014 Höegh LNG Partners LP Long-Term Incentive Plan, filed with the SEC on April 24, 2015, as amended from time to time and including any successor or replacement plan or plans.

 

“Marshall Islands LLC Act” means the Marshall Islands Limited Liability Company Act of 1996, as amended.

 

“Marshall Islands LP Act” means the Marshall Islands Limited Partnership Act, as amended.

 

“Material Contract” means any written contract or other agreement which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act) to MLP.

 

“Measurement Date” has the meaning set forth in Section 3.2(a).

 

 

“MLP Charter Documents” means MLP’s certificate of limited partnership and the Partnership Agreement.

 

“MLP Material Adverse Effect” means, when used with respect to MLP, any change, effect, event or occurrence that, individually or in the aggregate, (i) has had or would reasonably be expected to have a material adverse effect on the business, financial condition or results of operations of MLP and its Subsidiaries, taken as a whole, or (ii) prevents or materially impedes, interferes with or hinders the consummation of the transactions contemplated hereby, including the Merger, on or before the Outside Date; provided, however, that any adverse changes, effects, events or occurrences resulting from or due to any of the following shall be disregarded in determining whether there has been an MLP Material Adverse Effect: (A) changes, effects, events or occurrences generally affecting the economies in which the MLP or its Subsidiaries operate or the global economy, the financial, credit, debt, securities or other capital markets or political, legislative or regulatory conditions or changes in the industries in which the MLP or its Subsidiaries operate; (B) the announcement or pendency of this Agreement or the transactions contemplated hereby or the performance of this Agreement (including, for the avoidance of doubt, performance of the Parties’ obligations under Section 5.5) (provided that the exception in this clause (B) shall not be deemed to apply to references to “MLP Material Adverse Effect” in Section 3.3(b)); (C) any change in the market price or trading volume of the limited partnership interests or other equity securities of MLP (it being understood and agreed that the foregoing shall not preclude any other Party from asserting that any facts or occurrences giving rise to or contributing to such change that are not otherwise excluded from the definition of MLP Material Adverse Effect should be deemed to constitute, or be taken into account in determining whether there has been or would reasonably be expected to be an MLP Material Adverse Effect); (D) acts of war or terrorism (or the escalation of the foregoing) or natural disasters or other force majeure events or pandemics (including COVID-19) or epidemics; (E) changes in any Laws or regulations applicable to MLP or its Subsidiaries or applicable accounting regulations or principles or the interpretation thereof that materially affect this Agreement or the transactions contemplated hereby; (F) any legal proceedings commenced by or involving any current or former member, partner or stockholder of MLP or its Subsidiaries (on their own or on behalf of MLP or its Subsidiaries) arising out of or related to this Agreement or the transactions contemplated hereby; (G) changes, effects, events or occurrences generally affecting the prices of natural gas, refined petroleum products, liquefied natural gas, or other commodities; (H) any failure of MLP to meet any internal or external projections, forecasts or estimates of revenues, earnings or other financial or operating metrics for any period (it being understood and agreed that the foregoing shall not preclude any other Party from asserting that any facts or occurrences giving rise to or contributing to such failure that are not otherwise excluded from the definition of MLP Material Adverse Effect should be deemed to constitute, or be taken into account in determining whether there has been, or would reasonably be expected to be, an MLP Material Adverse Effect); (I) the taking of any action required by this Agreement; and (J) a mutually negotiated settlement between MLP (or one of its subsidiaries) and a charterer; provided, however, that changes, effects, events or occurrences referred to in clauses (A), (D), (E) and (G) above shall be considered for purposes of determining whether there has been or would reasonably be expected to be an MLP Material Adverse Effect if and to the extent such state of affairs, changes, effects, events or occurrences has had or would reasonably be expected to have a disproportionate adverse effect on MLP and its Subsidiaries, taken as a whole, as compared to other companies of similar size operating in the industries and geographic areas in which MLP and its Subsidiaries operate.

 

 

“MLP SEC Documents” means, collectively, all reports, schedules, forms, certifications, prospectuses, and registration, proxy and other statements required to be filed or furnished by MLP and its Subsidiaries since December 31, 2019, including all exhibits and schedules thereto and documents incorporated by reference therein.

 

“NYSE” means the New York Stock Exchange.

 

“Partnership Agreement” means the Second Amended and Restated Agreement of Limited Partnership of Höegh LNG Partners LP, as amended or supplemented from time to time.

 

“Partnership Interest” has the meaning set forth in the Partnership Agreement.

 

“Permit” means franchises, tariffs, grants, authorizations, licenses, permits, easements, variances, exceptions, consents, certificates, approvals and orders of any Governmental Authority.

 

“Person” means an individual, a corporation, a limited liability company, a partnership, an association, a trust or any other entity, including a Governmental Authority.

 

“Proceeding” means any actual or threatened claim (including a claim of a violation of Law), action, audit, demand, suit, proceeding, investigation or other proceeding at law or in equity or order or ruling, in each case, whether, civil, criminal, administrative, investigative, or otherwise, and whether or not such claim, action, audit, demand, suit, proceeding, investigation or other proceeding results in a formal civil or criminal litigation or other action.

 

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

 

“Securities Act” means the Securities Act of 1933, as amended (together with the rules and regulations promulgated thereunder).

 

“Series A Preferred Unit” means a Series A Preferred Unit as defined in the Partnership Agreement.

 

“Series A Preferred Unitholders” mean the holders of the Series A Preferred Units.

 

“Special Approval” means “Special Approval” as defined in the Partnership Agreement.

 

“Subordinated Units” has the meaning set forth in the Partnership Agreement.

 

“Subsidiary”, when used with respect to any Person, means any corporation, limited liability company, partnership, association, trust or other entity the accounts of which would be consolidated with those of such Person in such Person’s consolidated financial statements if such financial statements were prepared in accordance with GAAP, as well as any other corporation, limited liability company, partnership, association, trust or other entity of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power (or, in the case of a partnership, more than 50% of the general partner interests or, in the case of a limited liability company, the limited liability company interests) are, as of such date, owned by such Person or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person. When used with respect to Parent and the General Partner, the term “Subsidiary” shall not include MLP or its Subsidiaries unless otherwise provided specifically in this Agreement.

 

 

“Tax” or “Taxes” means any and all federal, state, local or foreign or provincial taxes, charges, imposts, levies or other assessments, including all net income, gross receipts, capital, sales, use, ad valorem, value added, transfer, franchise, margin, profits, net proceeds, alternative or add-on minimum, inventory, goods and services, capital stock, license, registration, leasing, user, withholding, payroll, employment, social security, unemployment, disability, excise, severance, stamp, occupation, property, unclaimed property, fuel, excess profits, premium, windfall profit, deficiency and estimated taxes, customs duties, fees, assessments and similar charges, in each case, in the nature of a tax and imposed by any Governmental Authority, including any and all interest, penalties, fines, additions to tax or additional amounts imposed by any Governmental Authority in connection with respect thereto.

 

“Tax Return” means any return, report or similar filing (including any attached schedules, supplements and additional or supporting material) filed or required to be filed with respect to Taxes, including any information return, claim for refund, amended return or declaration of estimated Taxes (and including any amendments with respect thereto).

 

“Unaffiliated Unitholders” means Common Unitholders other than Parent and its Affiliates.

 

“Unitholder Approval” has the meaning set forth in Section 6.1(a).

 

“Unitholders Meeting” has the meaning set forth in Section 5.1(b).

 

[signature pages follow]

 

 

IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and delivered as of the date first above written.

 

	PARENT:
	Höegh LNG Holdings Ltd.
	By:	/s/ Camilla Nyhus-Møller

	Name:	Camilla Nyhus-Møller
	Title:	Authorised Signatory

 

	MERGER SUB:
	HOEGH LNG MERGER SUB LLC
	By:	/s/ Thor Jørgen Guttormsen

	Name:	Thor Jørgen Guttormsen
	Title:	Authorised Signatory

 

[Signature Page to Agreement and Plan of Merger]

 

 

	MLP:
	HÖEGH LNG PARTNERS LP
	By:	/s/ Håvard Furu

	Name:	Håvard Furu
	Title:	Authorised Signatory

 

	GENERAL PARTNER:
	HÖEGH LNG GP LLC
	By:	/s/ Thor Jørgen Guttormsen

	Name:	Thor Jørgen Guttormsen
	Title:	Authorised Signatory

 

[Signature Page to Agreement and Plan of Merger]

 

 

 

Exhibit J

 

VOTING AND SUPPORT AGREEMENT

 

This VOTING AND SUPPORT AGREEMENT, dated as of May 25, 2022 (the “Agreement”), is by and between Höegh LNG Holdings Ltd., a Bermuda exempted company (“Parent”), and Höegh LNG Partners LP, a Marshall Islands limited partnership (“MLP”).

 

W I T N E S S E T H:

 

WHEREAS, concurrently with the execution and delivery of this Agreement, Parent and MLP have entered into an Agreement and Plan of Merger, dated as of the date hereof (as may be amended, restated, supplemented or otherwise modified from time to time, the “Merger Agreement”), by and among Parent, Höegh LNG GP LLC, a Marshall Islands limited liability company and the general partner of MLP (the “General Partner”), Höegh Merger Sub LLC, a Marshall Islands limited liability company and a wholly owned subsidiary of Parent (“Merger Sub”), and MLP, pursuant to which, upon the terms and subject to the conditions set forth therein, at the Effective Time, Merger Sub will merge with and into MLP (the “Merger”), with MLP surviving the Merger as a subsidiary of Parent;

 

WHEREAS, Parent is the Beneficial Owner (as defined below) of 15,257,498 MLP common units (the “Common Units”);

 

WHEREAS, concurrently with the execution and delivery of the Merger Agreement, and as a condition and an inducement to MLP entering into the Merger Agreement, Parent is entering into this Agreement with respect to the Common Units; and

 

WHEREAS, Parent is willing, subject to the limitations herein, not to Transfer (as defined below) any of its Common Units, and to vote its Common Units in a manner so as to facilitate consummation of the Merger and the other transactions contemplated by the Merger Agreement.

 

NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements contained herein, and intending to be legally bound hereby, the parties agree as follows:

 

Article I
GENERAL

 

Section 1.1            Definitions. This Agreement is the “Support Agreement” as defined in the Merger Agreement. Capitalized terms used but not defined herein shall have the respective meanings set forth in the Merger Agreement.

 

(a)           “Beneficially Own” or “Beneficial Ownership” has the meaning assigned to such term in Rule 13d-3 under the Exchange Act, and a Person’s beneficial ownership of securities shall be calculated in accordance with the provisions of such Rule (in each case, irrespective of whether or not such Rule is actually applicable in such circumstance). For the avoidance of doubt, Beneficially Own and Beneficial Ownership shall also include record ownership of securities.

 

(b)           “Beneficial Owners” shall mean Persons who Beneficially Own the referenced securities.

 

 

(c)           “Transfer” means any direct or indirect offer, sale, assignment, pledge, disposition or other similar transfer (by operation of law or otherwise), either voluntary or involuntary, or entry into any contract, option or other arrangement or understanding with respect to any offer, sale, assignment, pledge, disposition or other transfer (by operation of law or otherwise), of any Common Units owned by Parent, including in each case through the Transfer of any Person or any interest in any Person.

 

Article II
AGREEMENT TO RETAIN COMMON UNITS

 

Section 2.1            Transfer and Encumbrance of Common Units.

 

(a)           From the date of this Agreement until the earliest of (i) Unitholder Approval being obtained, (ii) the termination of the Merger Agreement pursuant to and in compliance with the terms thereof or (iii) the termination of this Agreement by the written consent of the parties hereto and the Conflicts Committee (such earliest date, the “Termination Date”), Parent shall not, with respect to any Common Units Beneficially Owned by Parent, (x) Transfer any such Common Units or (y) deposit any such Common Units into a voting trust or enter into a voting agreement or arrangement with respect to such Common Units or grant any proxy (except as otherwise provided herein) or power of attorney with respect thereto.

 

(b)           Notwithstanding Section 2.1(a), Parent may Transfer any Common Units to any Person that (1) is a party to an agreement with MLP with substantially similar terms as this Agreement or (2) as a condition to such Transfer, agrees in a writing, reasonably satisfactory in form and substance to MLP, to be bound by this Agreement, and delivers a copy of such executed written agreement to MLP prior to the consummation of such transfer.

 

(c)           Nothing in this Agreement shall restrict direct or indirect Transfers of equity or other interests in Parent (it being understood that Parent shall remain bound by this Agreement).

 

Section 2.2            Additional Purchases. From the date of this Agreement until the Termination Date, Parent agrees that it will not purchase or otherwise acquire any additional MLP common units other than the 15,257,498 Common Units of which it is the Beneficial Owner as of the date hereof.

 

Section 2.3            Unpermitted Transfers; Involuntary Transfers. Any Transfer or attempted Transfer of any Common Units in violation of this Article II shall, to the fullest extent permitted by applicable Law, be null and void ab initio. If any involuntary Transfer of any of Parent’s Common Units shall occur, the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Common Units subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement.

 

 

Article III
AGREEMENT TO VOTE

 

Section 3.1            Agreement to Vote. Prior to the Termination Date, Parent irrevocably and unconditionally agrees that it shall, at any Unitholders Meeting (whether annual or special and whether or not an adjourned or postponed meeting), however called, appear at such meeting or otherwise cause the Common Units to be counted as present at such meeting for purpose of establishing a quorum and vote, or cause to be voted at such meeting, all Common Units it owns:

 

(a)           in favor of the Merger Agreement and the transactions contemplated thereby, including the Merger; and

 

(b)           against (i) any agreement, transaction or proposal that relates to any other transaction, proposal, agreement or action made in opposition to adoption of the Merger Agreement or inconsistent with the Merger or matters contemplated by the Merger Agreement; (ii) any action or agreement that would result in a breach of any covenant, representation or warranty or any other obligation or agreement of Parent or any of its Subsidiaries contained in the Merger Agreement; (iii) any action or agreement that would result in any condition to the consummation of the Merger or the transactions contemplated by the Merger Agreement set forth in Article VI of the Merger Agreement not being fulfilled; and (iv) any other action that would reasonably be expected to materially impede, interfere with, delay, discourage, postpone or adversely affect any of the transactions contemplated by the Merger Agreement, including the Merger, or this Agreement. Any attempt by Parent to vote, consent or express dissent with respect to (or otherwise to utilize the voting power of), the Common Units in contravention of this Section 3.1 shall be null and void ab initio.

 

Notwithstanding anything to the contrary in this Agreement, Parent shall remain free to vote (or execute consents or proxies with respect to) the Common Units with respect to any matter other than as set forth in Section 3.1(a) and Section 3.1(b) in any manner Parent deems appropriate.

 

Section 3.2            Proxy. Parent hereby irrevocably appoints as its proxy and attorney-in-fact, the chairman of the Conflicts Committee and any person designated in writing by the chairman of the Conflicts Committee, each of them individually, with full power of substitution and resubstitution, to consent to or vote the Common Units as indicated in Section 3.1 above. Parent intends this proxy to be irrevocable and unconditional during the term of this Agreement and coupled with an interest and will take such further action or execute such other instruments as may be reasonably necessary to effect the intent of this proxy, and hereby revokes any proxy previously granted by Parent with respect to the Common Units (and Parent hereby represents that any such proxy is revocable). The proxy granted by Parent (i) shall be automatically revoked upon the occurrence of the Termination Date and (ii) may be terminated at any time by MLP (and the Conflicts Committee, on behalf of MLP) in its sole election by written notice provided to Parent.

 

Article IV
ADDITIONAL AGREEMENTS

 

Section 4.1            Waiver of Litigation. Parent agrees not to commence, join in, and agrees to take all actions necessary to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against MLP or any of its affiliates and each of their successors or directors relating to the negotiation, execution or delivery of this Agreement or the Merger Agreement or the consummation of the transactions contemplated hereby or thereby, including any claim (a) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or the Merger Agreement (including any claim seeking to enjoin or delay the Closing) or (b) alleging a breach of any fiduciary duty of the MLP Board (or the Conflicts Committee) in connection with the negotiation and entry into this Agreement, the Merger Agreement or the transactions contemplated hereby or thereby, and hereby irrevocably waives any claim or rights whatsoever with respect to any of the foregoing.

 

 

Section 4.2            Further Assurances. Parent agrees that from and after the date of this Agreement and until the Termination Date, it shall take no action that would reasonably be likely to adversely affect or delay the ability to perform its covenants and agreements under this Agreement.

 

Article V
REPRESENTATIONS AND WARRANTIES OF PARENT

 

Section 5.1             Representations and Warranties. Parent hereby represents and warrants as follows:

 

(a)           Ownership. Parent has, with respect to the Common Units, and at all times during the term of this Agreement will continue to have, Beneficial Ownership of, good and valid title to and full and exclusive power to vote, issue instructions with respect to the matters set forth in Article III, agree to all of the matters set forth in this Agreement and to Transfer the Common Units. The Common Units constitute all of the common units of MLP owned of record or beneficially by Parent as of the date of this Agreement.

 

(b)           Authority. Parent has full power and authority and is duly authorized to make, enter into and carry out the terms of this Agreement and to perform its obligations hereunder. This Agreement has been duly and validly executed and delivered by Parent and (assuming due authorization, execution and delivery by MLP) constitutes a valid and binding agreement of Parent, enforceable against Parent in accordance with its terms (except in all cases as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles), and no other action is necessary to authorize the execution and delivery by Parent or the performance of Parent’s obligations hereunder.

 

(c)           No Violation. The execution, delivery and performance by Parent of this Agreement will not (i) violate any provision of any Law applicable to Parent; (ii) violate any order, judgment or decree applicable to Parent; or (iii) conflict with, or result in a breach or default under, any agreement or instrument to which Parent is a party or any term or condition of its Charter Documents, except where such conflict, breach or default would not reasonably be expected to, individually or in the aggregate, have an adverse effect on Parent’s ability to satisfy its obligations hereunder.

 

(d)           Consents and Approvals. The execution and delivery by Parent of this Agreement does not, and the performance of Parent’s obligations hereunder, require Parent to obtain any consent, approval, authorization or permit of, or to make any filing with or notification to, any Governmental Authority, except such filings and authorizations as may be required under the Exchange Act.

 

 

(e)           Absence of Litigation. To the knowledge of Parent, as of the date of this Agreement, there is no action pending against, or threatened in writing against Parent that would prevent the performance by Parent of its obligations under this Agreement or to consummate the transactions contemplated hereby or by the Merger Agreement, including the Merger, on a timely basis.

 

Article VI
MISCELLANEOUS

 

Section 6.1            Termination. This Agreement shall terminate on the Termination Date. Neither the provisions of this Section 6.1 nor the termination of this Agreement shall relieve (x) any party hereto from any liability of such party to any other party incurred prior to such termination or (y) any party hereto from any liability to any other party arising out of or in connection with a breach of this Agreement. Nothing in the Merger Agreement shall relieve Parent from any liability arising out of or in connection with a breach of this Agreement.

 

Section 6.2            Notices. All notices, requests and other communications to any party hereunder shall be in writing and shall be deemed given if delivered personally, by facsimile (which is confirmed) or electronic transmission, or sent by overnight courier (providing proof of delivery) to the parties at the following addresses:

 

if to Parent to:

 

Höegh LNG Holdings Ltd.

Canon’s Court

22 Victoria Street

Hamilton, HM 12, Bermuda

Attention.:

Thor Jørgen Guttormsen, Interim President and Chief Executive Officer

Email:

thor.jorgen.guttormsen@Höeghlng.com

 

with a copy (which shall not constitute notice) to:

 

Kirkland & Ellis LLP

609 Main Street

Houston, Texas 77002

Attention:

Sean T. Wheeler, P.C.

Enoch Varner

Email:

[email protected];

[email protected]

 

if to MLP, to:

 

Höegh LNG Partners LP

Canon’s Court

22 Victoria Street

Hamilton, HM 12, Bermuda

Attention:

Håvard Furu, Interim Chief Executive Officer and Chief Financial Officer

Email:

havard.furu@Höeghlng.com

 

 

with a copy to each of (which shall not constitute notice) to:

 

Baker Botts L.L.P.

700 K Street, NW

Washington, DC 20001

 

Attention:

Catherine Gallagher

Michael Swidler

 

Email:

[email protected];

[email protected]

 

Richards, Layton & Finger, P.A.

One Rodney Square, 920 North King Street

Wilmington, DE 19801

Attention:

Kenneth Jackman

Srinivas M. Raju

Email:

[email protected];

[email protected]

 

Section 6.3            Amendment; Waiver.

 

(a)           This Agreement shall not be amended or modified except by written instrument duly executed by each of the parties; provided, however, that, MLP may not, without the prior written approval of the Conflicts Committee, agree to any amendment, modification or waiver of this Agreement.

 

(b)           No waiver of any term or provision of this Agreement shall be effective unless in writing, signed by the party against whom enforcement of the same is sought. The grant of a waiver in one instance does not constitute a continuing waiver in any other instances. No failure by any party to exercise, and no delay by any party in exercising, any right, remedy, power or privilege hereunder shall operate as a waiver thereof.

 

Section 6.4            Counterparts; Electric Signatures. This Agreement may be executed in counterparts (each of which shall be deemed to be an original but all of which taken together shall constitute one and the same agreement) and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other party. Signatures to this Agreement transmitted by electronic mail in.pdf form, or by any other electronic means designed to preserve the original graphic and pictorial appearance of a document (including DocuSign), will be deemed to have the same effect as physical delivery of the paper document bearing the original signatures. No party shall be bound until such time as the other party has executed counterparts of this Agreement.

 

 

Section 6.5            Assignment and Binding Effect. Except in connection with a permitted Transfer pursuant to Article II, no party may assign, delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder, by operation of law or otherwise, without the prior written consent of the other parties, and any such attempted assignment, delegation or transfer shall be void. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors, permitted transferees and permitted assigns. Except as expressly set forth in the prior sentence, (a) none of the provisions of this Agreement shall be for the benefit of or enforceable by any third party, including any creditor of any party hereto or any of their Affiliates, and (b) no such third party shall obtain any right under any provision of this Agreement or shall by reasons of any such provision make any claim in respect of any liability (or otherwise) against any other party hereto.

 

Section 6.6            Conspicuous & Headings. THE PARTIES AGREE THAT, TO THE EXTENT REQUIRED BY APPLICABLE LAW TO BE EFFECTIVE OR ENFORCEABLE, THE PROVISIONS IN THIS AGREEMENT IN BOLD-TYPE OR ALL-CAPS FONT ARE “CONSPICUOUS” FOR THE PURPOSE OF ANY APPLICABLE LAW. The headings of the several articles and sections herein are inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.

 

Section 6.7            Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and thereof and supersedes all previous agreements, negotiations, discussions, understandings, writings, commitments and conversations between the parties with respect to such subject matter. No agreements or understandings exist among the parties other than those set forth or referred to herein or therein.

 

Section 6.8            Severability. If any provision of this Agreement or the application thereof to any Person or circumstance is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions hereof, or the application of such provision to Persons or circumstances or in jurisdictions other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby, so long as the economic or legal substance of the transactions contemplated hereby or thereby, as the case may be, is not affected in any manner adverse to any party. Upon such determination, the parties shall negotiate in good faith in an effort to agree upon such a suitable and equitable provision to effect the original intent of the parties. In the event the parties are not able to agree, such provision shall be construed by limiting and reducing it so that such provision is valid, legal, and fully enforceable while preserving to the greatest extent permissible the original intent of the parties; the remaining terms and conditions of this Agreement shall not be affected by such alteration.

 

Section 6.9            No Partnership, Agency or Joint Venture. This Agreement is intended to create, and creates, a contractual relationship and is not intended to create, and does not create, any agency, partnership, joint venture, any like relationship between the parties hereto or a presumption that the parties are in any way acting in concert or as a group with respect to the obligations or the transactions contemplated by this Agreement.

 

 

Section 6.10          Governing Law; Venue; Waiver of Jury Trial.

 

(a)           THIS AGREEMENT, AND ALL CLAIMS OR CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT) THAT MAY BE BASED UPON, ARISE OUT OF RELATE TO THIS AGREEMENT, OR THE NEGOTIATION, EXECUTION OR PERFORMANCE OF THIS AGREEMENT, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.

 

(b)           EACH PARTY TO THIS AGREEMENT ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, RELATING TO OR RESULTING FROM THIS AGREEMENT, OR THE CONTEMPLATED TRANSACTIONS. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (C) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS Section 6.10.

 

(c)           THE PARTIES HEREBY AGREE THAT ANY SUIT, ACTION OR PROCEEDING SEEKING TO ENFORCE ANY PROVISION OF, OR BASED ON ANY MATTER RELATING TO, ARISING OUT OF OR RESULTING FROM OR IN CONNECTION WITH, THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE BROUGHT IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE OR IF SUCH COURT DOES NOT HAVE JURISDICTION, IN ANY FEDERAL COURT WITHIN THE STATE OF DELAWARE ONLY, AND THAT ANY CAUSE OF ACTION RELATING TO, ARISING OUT OF OR RESULTING FROM THIS AGREEMENT SHALL BE DEEMED TO HAVE ARISEN FROM A TRANSACTION OF BUSINESS IN THE STATE OF DELAWARE. EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING THAT IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OF THE PARTIES HERETO AGREES THAT A JUDGMENT IN ANY SUCH ACTION MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.

 

(d)           Each of the parties hereto hereby consents to process being served by any party to this Agreement in any suit, action or proceeding by the delivery of a copy thereof in accordance with the provisions of Section 6.2 or in such other manner as may be permitted by law.

 

 

Section 6.11          Expenses. All fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such fees or expenses, whether or not the Merger is consummated.

 

Section 6.12          Non-Recourse. This Agreement may only be enforced against, and any claim or cause of action based upon, arising out of, or related to this Agreement or the transactions contemplated by this Agreement may only be brought against, the entities that are expressly named as parties hereto and then only with respect to the specific obligations set forth herein with respect to such party. Except to the extent a named party to this Agreement (and then only to the extent of the specific obligations undertaken by such named party in this Agreement and not otherwise), no past, present or future director, manager, officer, employee, incorporator, member, partner, equity holder, Affiliate, agent, attorney, advisor, consultant or Representative or Affiliate of any of the foregoing shall have any liability (whether in contract, tort, equity or otherwise) for any one or more of the representations, warranties, covenants, agreements or other obligations or liabilities of any one or more party under this Agreement (whether for indemnification or otherwise) or of or for any claim based on, arising out of, or related to this Agreement or the transactions contemplated by this Agreement.

 

Section 6.13          Injunctive Relief. The parties agree that irreparable damage, for which monetary damages would not be an adequate remedy, would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached by the parties. Prior to the termination of this Agreement pursuant to Section 6.1, it is accordingly agreed that the parties shall be entitled to an injunction or injunctions, or any other appropriate form of specific performance or equitable relief, to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in any court of competent jurisdiction, in each case in accordance with this Section 6.13, this being in addition to any other remedy to which they are entitled under the terms of this Agreement at applicable Law or in equity. Each party accordingly agrees (a) the non-breaching party will be entitled to injunctive and other equitable relief, without proof of actual damages; and (b) the alleged breaching party will not raise any objections to the availability of the equitable remedy of specific performance to prevent or restrain breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of such party under this Agreement and will not plead in defense thereto that there are adequate remedies under applicable Law, all in accordance with the terms of this Section 6.13. Each party further agrees that no other party or any other Person shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 6.13, and each party irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.

 

Section 6.14          No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in MLP any direct or indirect ownership or incidence of ownership of or with respect to the Common Units. All rights, ownership and economic benefits of and relating to the Common Units shall remain vested in and belong to Parent, and MLP shall not have any authority to manage, direct, restrict, regulate, govern or administer any of the policies or operations of Parent or exercise any power or authority over Parent in the voting or disposition of any Common Units, except as otherwise expressly provided herein.

 

 

Section 6.15          Disclosure. Parent consents to and authorizes the publication and disclosure by MLP of the terms of this Agreement (including, for avoidance of doubt, the disclosure of this Agreement), in any press release, the Proxy Statement, and any other disclosure document required in connection with the Merger Agreement, the Merger and the transactions contemplated by the Merger Agreement.

 

Section 6.16          Interpretation. The parties have participated jointly in negotiating and drafting this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement. When a reference is made in this Agreement to Articles or Sections, such reference shall be to an Article or Section of this Agreement unless otherwise indicated. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” As used in this Agreement, the “knowledge” of Parent means the actual knowledge of any officer of Parent after due inquiry.

 

[Signature Page Follows]

 

 

IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have executed or caused this Agreement to be executed in counterparts, all as of the day and year first above written.

 

	Höegh LNG Holdings Ltd.
	By:	/s/ Camilla Nyhus-Møller

	Name:	Camilla Nyhus-Møller
	Title:	Authorised Signatory

 

[Signature Page to Voting and Support Agreement]

 

 

	Höegh LNG Partners LP
	By:	/s/ Håvard Furu

	Name:	Håvard Furu
	Title:	Authorised Signatory

 

[Signature Page to Voting and Support Agreement]

 

 

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