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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
November 14, 2012
Date of Report (Date of earliest event reported)
OVERSEAS SHIPHOLDING GROUP, INC.
(Exact Name of Registrant as Specified in Charter)
1-6479-1
Commission File Number
Delaware
(State or other jurisdiction of incorporation or organization)
13-2637623
(I.R.S. Employer Identification Number)
666 Third Avenue
New York, New York 10017
(Address of Principal Executive Offices) (Zip Code)
Registrant’s telephone number, including area code (212) 953-4100
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant
under any of the following provisions:
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[]
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Section 1 – Registrant’s Business and Operations
Item 1.03 – Bankruptcy or Receivership
On November 14, 2012, Overseas Shipholding Group, Inc. (“OSG”) filed voluntary petitions for reorganization for itself and 180 of
its subsidiaries under Chapter 11 of Title 11 of the United States Code (the “Bankruptcy Code”) in the U.S. Bankruptcy Court for the
District of Delaware (the “Bankruptcy Court”). The docket number for OSG is 12-20000. OSG has filed a motion with the
Bankruptcy Court seeking entry of an order that will consolidate the proceedings for its subsidiaries that have also filed Chapter 11
petitions (together with OSG, the “Debtors”) under the docket number assigned to OSG. The Debtors will continue to operate their
businesses as “debtors in possession” in the ordinary course under the jurisdiction of the Bankruptcy Court and in accordance with the
applicable provisions of the Bankruptcy Code and orders of the Bankruptcy Court.
On November 14, 2012, OSG issued a press release relating to the filing of the Chapter 11 petition described above, a copy of which
is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
Section 2 – Financial Information
Item 2.04 Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet
Arrangement
Direct Financial Obligations
The filing of the voluntary petitions for relief described in Item 1.03 above (the “Voluntary Petitions”) constituted an event of default
or termination event under a number of instruments and agreements relating to direct financial obligations of OSG (the “Accelerated
Direct Financial Obligations”). Any efforts to enforce the payment obligations under the Accelerated Direct Financial Obligations are
stayed as a result of the filing of the Voluntary Petitions, and any creditors’ purported rights of enforcement are subject to the
applicable provisions of the Bankruptcy Code and the Federal Rules of Bankruptcy Procedure. The material Accelerated Direct
Financial Obligations include:
$300 million principal amount of 8.125% Senior Notes due 2018 issued under an Indenture dated March 2010 between OSG
and The Bank of New York Mellon Trust Company, N.A., as Trustee;
$146 million principal amount of 7.500% Senior Notes due 2024 issued under a First Supplemental Indenture dated February
2004 and supplemental to an Indenture dated March 2003, each between OSG and Wilmington Trust Company, as Trustee;
$63.603 million principal amount of 8.750% Debentures due 2013 issued under an Indenture dated December 1993, between
OSG and The Chase Manhattan Bank (National Association), as Trustee;
$1.489 billion of unsecured indebtedness under a $1.5 billion revolving credit facility dated February 9, 2006 (as amended),
among OSG, OSG Bulk Ships, Inc., OSG International, Inc., and DnB Nor Bank ASA, New York branch, as administrative
agent, which matures in February 2013;
$311.751 million outstanding principal balance of secured indebtedness under a term loan facility dated August 28, 2008 (as
amended) among various Debtor operating subsidiaries as borrowers, OSG as guarantor and the Export-Import Bank of
China, as agent, which matures in 2023;
$266.936 million outstanding principal balance of secured indebtedness under a term loan facility dated as of August 10,
2009 (as amended) among various Debtor operating subsidiaries as borrowers, OSG, OSG Bulk Ships, Inc., OSG
International, Inc. and Rosalyn Tanker Corporation as guarantors, and Danish Ship Finance A/S, as agent, which matures in
2020; and
$258.825 million outstanding principal balance of secured indebtedness under a term loan agreement dated December 1,
2010 (as amended) among TI Africa Limited and TI Asia Limited, as borrowers, and ING Bank, N.V., as agent and security
trustee, of which OSG has guaranteed up to fifty percent of the borrowers’ liabilities.
In addition, other Accelerated Direct Financial Obligations of OSG and the Debtors contain (i) provisions that result in the automatic
and immediate acceleration of such direct financial obligations as a consequence of the filing of the Voluntary Petitions and/or (ii)
cross-default, cross-termination and/or cross-acceleration provisions that may result in the acceleration of such obligations as a
consequence of the acceleration of other direct financial obligations of OSG or the Debtors.
Section 3 – Securities and Trading Markets
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
On November 14, 2012, NYSE Regulation, Inc. (“NYSE Regulation”) announced the immediate suspension of trading on the New
York Stock Exchange (the “NYSE”) of the common stock of OSG. NYSE Regulation determined that OSG is no longer suitable for
listing in light of the filing of the Voluntary Petitions, which is sufficient grounds for the commencement of delisting procedures
according to Section 802.01D of the NYSE’s Listed Company Manual. In its announcement regarding the suspension, NYSE
Regulation noted the uncertainty as to the timing and outcome of the bankruptcy process as well as the effect of this process on OSG’s
common stockholders.
At this time OSG does not intend to take any action to appeal the NYSE’s decision and therefore, it is expected that OSG’s common
stock will be delisted after completion by the NYSE of application to the Securities and Exchange Commission.
Section 5 – Corporate Governance and Management
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory
Arrangements of Certain Officers.
Effective as of November 14, 2012 Mr. John J. Ray, III, age 53, was appointed by the Board of Directors of OSG to serve as the Chief
Reorganization Officer (“CRO”) of OSG. Mr. Ray will report to and take direction from the Chairman of the Board of OSG. As
CRO, Mr. Ray will provide overall leadership of OSG’s reorganization process and will assist and provide updates to OSG’s
management in the design and implementation of the reorganization strategy. In connection with the appointment of Mr. Ray, on
November 1, 2012, OSG entered into an engagement letter agreement (the “Engagement Letter”) with Greylock Partners LLP
(“Greylock Partners”), to provide financial and reorganization consulting services to OSG. Mr. Ray is a Senior Managing Director
and founder of Greylock Partners.
From 2004 to 2009, Mr. Ray served as Chairman of the Board and from 2005 to 2009 as the most senior officer of Enron Corporation,
now known as Enron Creditors Recovery Corp (“Enron”). Since 2009, Mr. Ray has served as Principal Officer of Nortel Networks
Inc. and its U.S.-based affiliates (“Nortel”), certain of which filed for Chapter 11 bankruptcy protection. Certain principals of RLKS
Executive Solutions LLC, which has been retained as consultants to Nortel, also expect to work on OSG’s reorganization as
independent contractors to Greylock Partners. Mr. Ray joined Enron and Nortel after they began their Chapter 11 bankruptcy
proceedings. None of the entities in which Mr. Ray has been principally occupied or employed over the past five years is a parent,
subsidiary or other affiliate of OSG.
As provided in the Engagement Letter, OSG will pay to Greylock Partners hourly fees for services provided by individuals employed
by Greylock Partners, with a retainer of $250,000. OSG will also reimburse Greylock Partners for reasonable expenses incurred in
connection with the provision of its services to OSG. Either OSG or Greylock Partners may terminate the Engagement Letter upon 30
days’ notice. Mr. Ray will not be an employee of OSG, as his services will be provided through Greylock Partners as an independent
contractor. Mr. Ray will be afforded indemnification and coverage under OSG’s D&O insurance policies.
There are no family relationships between Mr. Ray and any director or executive officer of OSG.
Other than Mr. Ray’s interest in the Engagement Letter, there are no other related-party transactions between OSG and Mr. Ray
reportable under Item 5.02 of Form 8-K and Item 404(a) of Regulation S-K.
The foregoing summary of the material terms and conditions of the Engagement Letter does not purport to be complete and is
qualified in its entirety by reference to the full text of the Engagement Letter, a copy of which is filed as Exhibit 99.2 to this Current
Report on Form 8-K and is incorporated herein by reference.
Section 8 – Other Events
Item 8.01 Other Events
In light of the events described above in Item 1.03, the semi-annual interest payment on the 8.750% Debentures due 2013, which was
scheduled to be paid on December 1, 2012, will not be paid pending the outcome of the Debtors’ Chapter 11 cases.
Additional information about OSG and the other Debtors and their Chapter 11 proceedings, including Bankruptcy Court filings and
claims information, are available on the internet at http://www.kccllc.net/osg. The Debtors expect to submit monthly operating reports
to the Bankruptcy Court, which will also be available on this website.
Section 9 – Financial Statements and Exhibits
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
The following exhibits are being filed as part of this Report on Form 8-K:
99.1
Press Release dated November 14, 2012.
99.2
Engagement Letter dated as of November 1, 2012, by and between Overseas Shipholding Group, Inc. and
Greylock Partners, LLC.
Cautionary Statement
This report contains forward-looking statements. These statements are based on OSG management's current expectations
and assumptions and are subject to a number of risks, uncertainties and other factors, many of which are beyond the control of OSG,
which may cause actual results to differ materially from those implied or expressed by the forward-looking statements – both in
connection with the Chapter 11 filings OSG is announcing today and OSG's business and financial prospects. Statements about
management's expectations, including about OSG’s ability to reduce its debt profile and reorganize its financial obligations, work with
various constituencies, maintain its market position, generate significant cash flow, continue to operate without interruption, and
definitively resolve its financial issues during the bankruptcy process, are based on current assumptions and expectations. No
assurance can be made that these events will come to fruition. Factors, risks and uncertainties that could cause actual results to differ
from the expectations reflected in these forward-looking statements are described in OSG's Annual Report for 2011 on Form 10-K and
those risks discussed in the other reports OSG files with the Securities and Exchange Commission. OSG disclaims any obligation to
update any forward-looking statements.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
OVERSEAS SHIPHOLDING GROUP, INC.
(Registrant)
Date: November 15, 2012
By:
/s/ JAMES I. EDELSON
Name: James I. Edelson
Title:
Senior Vice President,
General Counsel and Secretary
EXHIBIT INDEX
Exhibit No.
99.1
99.2
Description
Press Release dated November 14, 2012.
Engagement Letter dated as of November 1, 2012, by and between Overseas Shipholding Group, Inc. and Greylock
Partners, LLC.
Exhibit 99.1
OSG
Overseas Shipholding Group, Inc.
Press Release
For Immediate Release
Overseas Shipholding Group, Inc. Commences Chapter 11 Process to Reduce Debt and Other Financial Obligations and
Create Solid Financial Foundation
Company Intends to Continue Serving Customers and Partners Without Interruption
New York, NY – November 14, 2012 - Overseas Shipholding Group, Inc. (NYSE: OSG), a market leader providing global energy
transportation services, today filed voluntary Chapter 11 petitions for itself and certain operating subsidiaries in the U.S. Bankruptcy
Court for the District of Delaware.
The company intends to use the Chapter 11 process to significantly reduce its debt profile, reorganize other financial obligations and
create a strong financial foundation for the Company’s future. Certain subsidiaries, including those that manage the Company’s
facilities in Manila, Singapore, Greece, London and Newcastle, have not filed for Chapter 11 reorganization. A complete list of the
OSG entities which filed, and those which did not file, Chapter 11 petitions, is available at www.kccllc.net/osg. OSG intends to work
with its constituencies to emerge from bankruptcy as quickly as possible while maintaining the company’s market position, business
model and strategy.
OSG will continue to serve customers without interruption while it reorganizes its debt. OSG has more than adequate cash to allow
the company to continue operating as usual and does not require debtor-in-possession financing. In addition, the company expects to
generate significant cash flow while in Chapter 11, further ensuring its ability to maintain safe, reliable and high-quality operations
throughout the process.
Morten Arntzen, President and CEO, commented: “The last few years have been difficult for everyone in our industry, but OSG has
continued to provide safe, incident-free and reliable shipping services for our global client base. Our Jones Act fleet, in particular, has
performed very well the last 18 months and has secured a number of notable contract extensions. Over the past two weeks, OSG has
continued to fix vessels with our clients. We will use the Chapter 11 process to definitively resolve our financial issues. An orderly
restructuring in Chapter 11 will provide stability both to OSG and to the entire shipping industry. We expect to emerge from our
Chapter 11 reorganization with a solid financial base and clear path to future success.
“During the reorganization, we have more than enough cash to support our operations, and we expect it to be business as usual for
OSG’s customers, employees, partners and suppliers. Thanks to our talented and dedicated employees around the world, we continue
to enjoy a great reputation in our markets. I would like to thank them for their continued support and hard work,” Mr. Arntzen
continued.
OSG has filed first-day motions that ask the Court to approve, among other things, payment of employee wages and benefits that were
incurred before the petition was filed, payment of certain pre-filing amounts owed to vendors and suppliers, and continued access to
the company’s cash collateral and cash management systems. The company is working closely with its vendors to secure their
continued support.
On October 22, 2012, OSG informed investors that it is in the process of reviewing a tax issue arising from the fact that the company
is domiciled in the United States and has substantial international operations, and relating to the interpretation of certain provisions
contained in the company’s loan agreements. As a result of this issue, the company informed investors that its financial statements for
at least the previous three years should not be relied upon.
During the process, John Ray, CEO of Greylock Partners LLC, will serve as Chief Reorganization Officer. OSG is being advised by
its legal counsel, Cleary Gottlieb Steen & Hamilton LLP, and its financial advisor, Chilmark Partners LLC.
Additional information about the Company’s reorganization may be found online at www.kccllc.net/osg.
About OSG
Overseas Shipholding Group, Inc. (NYSE: OSG), is one of the largest publicly traded tanker companies in the world. As a market
leader in global energy transportation services for crude oil and petroleum products in the U.S. and International Flag markets, OSG is
committed to setting high standards of excellence for its quality, safety and environmental performance. OSG is recognized as one of
the world's most customer-focused marine transportation companies and is headquartered in New York City, NY. More information is
available at www.osg.com.
Forward-Looking Statements
This release contains forward-looking statements. These statements are based on OSG management's current expectations and
assumptions and are subject to a number of risks, uncertainties and other factors, many of which are beyond the control of OSG,
which may cause actual results to differ materially from those implied or expressed by the forward-looking statements - both in
connection with the Chapter 11 filings OSG is announcing today and OSG's business and financial prospects. Statements about
management's expectations, including about OSG's ability to reduce its debt profile and reorganize its financial obligations, work with
various constituencies, maintain its market position, continue to operate without interruption, and definitively resolve its financial
issues during the bankruptcy process, are based on current assumptions and expectations. No assurance can be made that these events
will come to fruition. Factors, risks and uncertainties that could cause actual results to differ from the expectations reflected in these
forward-looking statements are described in the company's Annual Report for 2011 on Form 10-K and those risks discussed in the
other reports OSG files with the Securities and Exchange Commission. The Company disclaims any obligation to update any
forward-looking statements.
Contacts:
Chuck Burgess
The Abernathy MacGregor Group
(212) 371-5999
[email protected]
OSG Media Hotline
(212) 578-1612
Investor Contact:
John F. Collins, Jr.
(212) 578-1699
EXHIBIT 99.2
Greylock Partners, LLC
November 1, 2012
Myles Itkin, Executive Vice President, Chief Financial Officer and Treasurer
Overseas Shipholding Group, Inc.
666 Third Avenue
New York, New York 10017
Introduction
Overseas Shipholding Group, Inc. hereby retains Greylock Partners, LLC (“Greylock Partners”) to provide certain consulting services
for OSG, and its affiliates (collectively, the “OSG”) effective as of the date of execution hereof. In Greylock Partners’ role, John Ray,
Sr. Managing Director, will serve as Chief Reorganization Officer (“CRO”), and Greylock Partners will provide Services (as defined
herein) to OSG as set forth below. This letter of engagement (the “Engagement”) and the related Standard Terms and Conditions
together constitute the engagement contract and supersedes the agreement dated as of October 22, 2012 (the “Engagement Contract”)
pursuant to which the Services will be provided.
Scope of Services
Greylock Partners shall assist OSG with the assembly of information, schedules, summaries and other data obtained from OSG’s
records to assist OSG and its counsel with respect to any refinancing or restructuring or, if applicable, court filings with respect thereto
(the “Project”). Greylock Partners may from time to time at the request of OSG assist OSG with regard to communications with
employees, vendors and key constituents related to the Project. Greylock Partners may also provide assistance at the request of OSG
with respect to the development of employee-related programs.
John Ray will serve as CRO and lead the Engagement, assisted as necessary by the consultants listed herein. John Ray will assist and
provide updates to OSG’s Chief Executive Officer and Chief Financial Officer in connection with the Engagement. John Ray shall
report directly to the Chairman of the Board of OSG. All of the foregoing services to be performed by Greylock Partners are referred
to as “Services.”
Fees
Fees in connection with this Engagement will be based upon the time incurred providing the Services based upon the individuals
and their titles with Greylock Partners as shown below.
John Ray, Sr Managing Director
Richard Lydecker, Managing Director
Kathryn Schultea, Managing Director
Raj Perubhatlu, Senior Director
Mary Cilia, Senior Director
Charrise Fraccascia, Director
Terry Smith, Director
David Kantorzcyk, Director
Brandon Bangerter, Director
Roger Smith, Associate
Felicia Buenrostro, Associate
Per Hour
$595
$550
$550
$500
$500
$425
$425
$425
$425
$225
$150
Consultants may be added or substituted from time to time as necessary to complete the work and in consultation with OSG. The
hourly rate may be revised periodically. Greylock Partners shall provide prompt notice of all such rate revisions.
In addition to the fees outlined above, Greylock Partners will bill for reasonable expenses which are incurred on your behalf during
this Engagement, including, but not limited to airfare, meals, hotel accommodations, telephone, duplicating and printing and other
reasonable and necessary charges. Further, if Greylock Partners and/or any of its employees are required to testify or provide
evidence at or in connection with any judicial or administrative proceeding relating to this matter, Greylock Partners will be
compensated by you at its regular hourly rates and reimbursed for reasonable out of pocket expenses (including reasonable counsel
fees) with respect thereto. OSG has paid Greylock Partners a retainer in the amount of $250,000, which may be increased with
approval by OSG. Invoices for fees and expenses incurred in connection with this Engagement will be billed monthly or more
frequently as agreed, and are due upon receipt. The retainer may be reduced periodically by Greylock Partners for unpaid fees and
expenses.
Terms and Conditions
The attached Standard Terms and Conditions set forth the duties of each party with respect to the Services. Further, this letter and the
Standard Terms and Conditions attached comprise the entire Engagement Contract for the provision of the Services to the exclusion of
any other express or implied terms, whether expressed orally or in writing, including any conditions, warranties and representations,
and shall supersede all previous proposals, letters of engagement, undertakings, agreements, understandings, correspondence and other
communications, whether written or oral, regarding the Services.
Acknowledgement and Acceptance
Please acknowledge your acceptance of the terms of this Engagement Contract by signing both the confirmation below and the
attached Standard Terms and Conditions and returning a copy of each to us at the above address.
If you have any questions regarding this letter or the attached Standard Terms and Conditions, please do not hesitate to contact John
Ray.
GREYLOCK PARTNERS, LLC
OVERSEAS SHIPHOLDING GROUP, INC.
By: /s/John J. Ray III
John J. Ray III
Sr. Managing Director
By: /s/Myles Itkin
Myles Itkin
Executive Vice President, Chief
Financial Officer and Treasurer
STANDARD TERMS AND CONDITIONS
The following are the Standard Terms and Conditions on which Greylock Partners will provide the Services to Overseas Shipholding
Group, Inc. (“OSG”) as set forth within the pre-fixed letter of engagement dated October 22, 2012. The Engagement letter and the
Standard Terms and Conditions (collectively the “Engagement Contract”) form the entire agreement between Greylock Partners and
OSG relating to the Services and replace and supersede any previous proposals, letters of engagement, undertakings, agreements,
understandings, correspondence and other communications, whether written or oral, regarding the Services. The headings and titles in
the Engagement Contract are included to make it easier to read but do not form part of the Engagement Contract.
1.
Reports and Advice
1.1 Use and purpose of advice and reports - Any advice given or report issued by Greylock Partners, other than any report Greylock
Partners must file publicly as required by law, is provided for OSG’s use and benefit and only in connection with the purpose in
respect of which the Services are provided. Unless required by law or as provided in the preceding sentence, OSG shall not provide
any advice given or report issued by Greylock Partners to any third party (other than OSG’s advisors, consultants and agents), without
Greylock Partners’ prior written consent. In no event, regardless of whether consent has been provided, shall Greylock Partners
assume any responsibility to any third party to which any advice or report is disclosed or otherwise made available.
2.
Information and Assistance
2.1 Provision of information and assistance - Greylock Partner’s performance of the Services is dependent upon timely and
complete access to such information and assistance as Greylock Partners may reasonably require from time to time.
2.2 No assurance on financial data - While Greylock Partners work may include an analysis of financial and accounting data, the
Services will not include an audit, compilation or review of any kind of any financial statements or components thereof. OSG or its
other consultants will be responsible for any and all financial information provided to Greylock Partners during the course of this
Engagement, and Greylock Partners will not examine or compile or verify any such financial information. Moreover, the
circumstances of the Engagement may cause Greylock Partners advice to be limited in certain respects based upon, among other
matters, the extent of sufficient and available data and the opportunity for supporting investigations in the time period. Accordingly,
as part of this Engagement, Greylock Partners will not express any opinion or other form of assurance on financial information
provided by OSG.
2.3 Prospective financial information - In the event the Services involve prospective financial information, Greylock Partners work
will not constitute an examination or compilation, or apply agreed-upon procedures, in accordance with standards established by the
American Institute of Certified Public Accountants or otherwise, and Greylock Partners will express no assurance of any kind on such
information. There will usually be differences between estimated and actual results, because events and circumstances frequently do
not occur as expected, and those differences may be material. Greylock Partners will take no responsibility for the achievability of
results or events projected or anticipated by OSG’s management.
3.
Additional Services
3.1 Responsibility for other parties - Greylock Partners is not responsible for the work and fees of any other party engaged by, or
affiliated with, OSG to provide services in connection with the Engagement, provided that Greylock Partners shall be responsible for
any of its officers, employees and independent contractors employed by it. Except as provided in this Engagement Contract, Greylock
Partners shall not be responsible for providing or reviewing the advice or services of any such third party, including advice as to legal,
regulatory, accounting or taxation matters.
4.
Confidentiality
For purposes of this Section 4, “Information” means all non-public, confidential or proprietary materials and information relating to
the respective businesses and operations of OSG, whether owned by it or third parties, that is disclosed by OSG or its representatives
or is acquired in the course of discussions or investigations, in whatever form provided, and includes, without limitation: (a) financial,
accounting and tax information; (b) business plans, products and services, marketing and sales information, customer lists, volumes
and pricing information; (c) purchasing information; (d) employee lists, policies and files; (e) trade secrets, operating and training
procedures, production processes, research and development data, samples, test results, formulas, designs, specifications, know-how,
inventions and ideas, improvements, discoveries, software (including passwords and source and object code), database technologies,
and any other intellectual property and other technical information; (f) all agreements and transaction information; (g) all notes,
summaries, studies, analyses and other material that are prepared by Greylock Partners or its representatives and contain or are
generated from Information.
“Information” does not include information that: (i) is or becomes generally known by or available to the public other than as a result
of a disclosure by Greylock Partners or its representatives in breach of this Engagement Contract; (ii) Greylock Partners can show, by
competent evidence, was known to it or any of its representatives on a non-confidential basis prior to disclosure thereof to Greylock
Partners or its representatives; (iii) becomes available to Greylock Partners or any of its representatives on a non-confidential basis
from a source other than OSG or its representatives, provided that such source is not known to Greylock Partners or such
representative to be subject to any prohibition against transmitting such information to it; or (iv) is independently developed by
Greylock Partners or any of its representatives without reliance on the Information.
4.1 Use and Disclosure Restrictions – Greylock Partners acknowledges that all Information is valuable and confidential to OSG,
remains its respective property and will be kept by Greylock Partners and its representatives and agents in strict confidence. Greylock
Partners will only use or copy the Information for the purpose of performing the Services under this Engagement Contract. Greylock
Partners will not, directly or indirectly, disclose Information to any person, except (a) on a confidential basis to its agents and
representatives who need to know such Information for performing the Services under this Engagement Contract, (b) as specifically
consented to in writing by the OSG or (c) as required by law (but subject, in the case of clause (c), to 4.2 below). Greylock Partners
will exercise reasonable care to preserve the confidentiality of the Information and will employ at least the same safeguards as it uses
to protect its own confidential information of a similar nature. Greylock Partners will not modify, disassemble, decompile or
otherwise reverse engineer the Information. Greylock Partners will be responsible for all uses, copying and disclosures of Information
by its representatives and agents. Greylock Partners acknowledges and agrees that a breach of the confidentiality provision shall
irreparable harm to the Company and that remedies at law may be inadequate to redress any such breach, and therefore Greylock
Partners acknowledges and agrees that the Company will be entitled to injunctive or similar equitable remedy against Greylock
Partners and Greylock Partners will not take any action to oppose or hinder the Company in obtaining such relief.
Except as required by law, or as publicly available or permitted by the Engagement Contract, Greylock Partners will not, and will
direct its representatives and agents not to, disclose to any person, other than those persons engaged by OSG, the Engagement, that
any discussions or negotiations are taking place concerning the Project or any of the terms, conditions or other facts with respect to the
Project, including the status thereof
4.2 Legally Required Disclosure - If Greylock Partners or any of its representatives or agents becomes legally compelled (whether by
law, rule, regulation, subpoena or similar court or other lawful process) to disclose Information, Greylock Partners will promptly
notify OSG so that OSG may (but it need not) seek a protective order or other appropriate remedy, with Greylock Partners’
cooperation, or waive compliance with the provisions of this Engagement Contract. In any event, Greylock Partners and its
representatives will furnish only that portion of the Information which, based on written advice of legal counsel, it believes is legally
required and will exercise reasonable efforts to obtain reliable assurances that confidential treatment will be accorded to such
Information.
4.3 Return and Destruction of Materials - Promptly after OSG’s request at any time and upon termination or expiration of this
Engagement Contract, Greylock Partners will return all Information consisting of original documents received from OSG or its
representatives and it will destroy all other Information that is in tangible form and is in its or its representatives’ and agents’
possession, without retaining copies. Promptly after OSG’s request, Greylock Partners will certify such return or destruction in
writing.
4.4 No Right Granted - Nothing in this Agreement is intended to grant to Greylock Partners or any of its representatives any
intellectual property right or license or any other rights or interest for, in or to the Information.
4.5 Disclosing Confidential Information - Notwithstanding the above, either party will be entitled to disclose confidential
information of the other to a third party to the extent that such third party is subject to a confidentiality agreement (or such other
arrangement acceptable to OSG) with OSG to protect confidential information, or (subject to 4.2 above) such disclosure is required by
valid legal process or by order of court of competent jurisdiction, provided that (and without breaching any legal or regulatory
requirement) where reasonably practicable not less than 5 business days’ notice in writing is first given to the other party.
5.
Termination
5.1 Termination of Engagement - Either party may terminate the Engagement Contract upon 30 days notice.
5.2 Continuation of terms - The terms of the Engagement that by their context are intended to be performed after termination or
expiration of this Engagement Contract and are intended to survive such termination or expiration shall continue to bind all parties,
provided , however , that Greylock Partners shall be entitled to compensation, as set forth in the Engagement Contract, only up to
and through the date on which Greylock Partners resigns, or is terminated by OSG.
6. Indemnification; Limitation of Liability - You agree to indemnify and hold harmless Greylock Partners and its partners,
directors, officers, employees, consultants, agents or representatives (collectively “Representatives”) against any loss, cost, expense,
or liability, including attorney fees and costs (collectively “Liability”) related to the provision of the Services under the Engagement
Contract, except to the extent such Liability is determined by final nonappealable order of a court of competent jurisdiction to have
resulted from the gross negligence, fraud or reckless, intentional or willful misconduct of Greylock Partners or its
Representatives. Greylock Partners agrees to indemnify and hold harmless OSG and its Representatives against any Liability relating
to the provision of the Services under the Engagement to the extend such Liability is determined by final non-appealable order of a
court of competent jurisdiction to have resulted from gross negligence, fraud or reckless, intentional or willful misconduct of Greylock
Partners or its Representatives. In no event shall either party be liable for consequential, indirect or punitive damages, damages,
damages for lost profits or opportunities or other like damages or claims of any kind and further, the maximum liability of Greylock
Partners hereunder, other than circumstances determined by final non-appealable order of a court of competent jurisdiction to be fraud,
reckless, intentional or willful misconduct, shall be the amount of fees paid to Greylock Partners. Neither party may settle or
compromise any liability for which indemnity may be sought hereunder without the prior consent of the other party which shall not be
unreasonably withheld. OSG shall procure and maintain Directors & Officers insurance coverage for the period in which John Ray
serves as an Officer of OSG, with zero individual retention cost and unimpaired coverage limits of not less than $40 million annually.
7. Governing Law and Jurisdiction - The Engagement Contract shall be governed by and interpreted in accordance with the laws
of the State of New York, without giving effect to the choice of law provisions thereof. The parties agree that any such dispute shall
be heard and resolved in a state or federal court or competent jurisdiction located in the State of New York (New York County),
except to the extent OSG is subject to the jurisdiction of a United States Bankruptcy Court in which case the parties agree to the
jurisdiction of the Bankruptcy Court to hear and resolve any dispute under this Engagement Contract. It is understood and agreed that
no failure or delay by OSG in exercising any right, power or privilege hereunder shall operate as a waiver hereof nor shall any single
or partial exercise thereof preclude any other or further exercise thereof or the exercise of any rights, power or privilege hereunder.
Confirmation of Standard Terms and Conditions
We agree to engage Greylock Partners, LLC upon the terms and conditions set forth herein.
Overseas Shipholding Group, Inc.
By: /s/Myles R. Itkin
Myles R. Itkin, Executive Vice President
Date: