SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D/A
(Amendment No. 14)
Under the Securities Exchange Act of 1934
Atlas Corp.
(Name of Issuer)
Common Shares, par value $0.01 per share
(Title of Class of Securities)
Y0436Q109
(CUSIP Number)
Peter Clarke
President and Chief Operating Officer
Fairfax Financial Holdings Limited
95 Wellington Street West, Suite 800
Toronto, Ontario, Canada, M5J 2N7
Telephone: (416) 367-4941
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
- With a copy to -
Jason R. Lehner
Sean J. Skiffington
Shearman & Sterling LLP
Commerce Court West
199 Bay Street, Suite 4405
Toronto, Ontario M5L 1E8
Telephone (416) 360-8484
October 31, 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 that is the subject of this Schedule 13D, 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 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
|
CUSIP No. Y0436Q109
|
13D | ||||
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1
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Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) V. PREM WATSA | ||||
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2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Canadian | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 131,759,155 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 131,759,155 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 131,759,155 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 45.9% | ||||
|
14
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TYPE OF REPORTING PERSON IN | ||||
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CUSIP No. Y0436Q109
|
13D | ||||
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1
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Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) THE SECOND 810 HOLDCO LTD. | ||||
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2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Canada | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 131,759,155 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 131,759,155 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 131,759,155 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 45.9% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
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CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) THE SECOND 1109 HOLDCO LTD. | ||||
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2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Canada | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 131,081,134 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 131,081,134 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 131,081,134 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 45.6% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) THE SIXTY TWO INVESTMENT COMPANY LIMITED | ||||
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2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION British Columbia | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 131,081,134 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 131,081,134 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 131,081,134 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 45.6% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
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Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) 12002574 CANADA INC. | ||||
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2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Canada | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 131,081,134 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 131,081,134 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 131,081,134 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 45.6% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) FAIRFAX FINANCIAL HOLDINGS LIMITED | ||||
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2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Canada | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 131,081,134 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 131,081,134 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 131,081,134 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 45.6% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) FFHL GROUP LTD. | ||||
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2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Canada | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 95,282,567 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 95,282,567 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 95,282,567 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 33.2% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) FAIRFAX (BARBADOS) INTERNATIONAL CORP. | ||||
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2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Barbados | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 10,478,017 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 10,478,017 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 10,478,017 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.6% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) WENTWORTH INSURANCE COMPANY LTD. | ||||
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2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Barbados | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 10,325,879 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 10,325,879 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 10,325,879 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.6% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) THE SIXTY THREE FOUNDATION | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Canada | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 231,922 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 231,922 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 231,922 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.1% | ||||
|
14
|
TYPE OF REPORTING PERSON NP | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) FAIRFAX (US) INC. | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Delaware | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 77,889,651 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 77,889,651 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 77,889,651 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 27.1% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) ODYSSEY US HOLDINGS INC. | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Delaware | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 55,023,240 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 55,023,240 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 55,023,240 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 19.2% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) ODYSSEY GROUP HOLDINGS, INC. | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Delaware | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 55,023,240 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 55,023,240 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 55,023,240 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 19.2% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) ODYSSEY REINSURANCE COMPANY | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Connecticut | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 50,357,873 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 50,357,873 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 50,357,873 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.5% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) NEWLINE HOLDINGS UK LIMITED | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION ENGLAND AND WALES | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 1,090,885 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 1,090,885 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,090,885 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.4% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) NEWLINE CORPORATE NAME LIMITED | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION ENGLAND AND WALES | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 1,090,885 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 1,090,885 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,090,885 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.4% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) ODYSSEY REINSURANCE (BARBADOS) LTD. | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Barbados | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 3,586,800 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 3,586,800 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,586,800 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.2% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) HUDSON INSURANCE COMPANY | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Delaware | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 6,063,363 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 6,063,363 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 6,063,363 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.1% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) HILLTOP SPECIALTY INSURANCE COMPANY | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION New York | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 409,203 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 409,203 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 409,048 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.1% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) HUDSON EXCESS INSURANCE COMPANY | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Delaware | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 1,105,931 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 1,105,931 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,105,931 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.4% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) 1102952 B.C. UNLIMITED LIABILITY COMPANY | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION British Columbia | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 26,415,922 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 26,415,922 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 26,415,922 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.2% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) ALLIED WORLD ASSURANCE COMPANY HOLDINGS, LTD | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Bermuda | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 26,415,922 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 26,415,922 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 26,415,922 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.2% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) ALLIED WORLD ASSURANCE COMPANY HOLDINGS I, LTD | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Bermuda | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 26,415,922 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 26,415,922 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 26,415,922 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.2% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) ALLIED WORLD ASSURANCE COMPANY, LTD | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Bermuda | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 26,415,922 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 26,415,922 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 26,415,922 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.2% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) ALLIED WORLD ASSURANCE HOLDINGS (IRELAND) LTD | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Bermuda | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 19,978,170 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 19,978,170 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 19,978,170 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 7.0% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) ALLIED WORLD ASSURANCE HOLDINGS (U.S.) INC. | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Delaware | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 16,727,358 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 16,727,358 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 16,727,358 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.8% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) ALLIED WORLD INSURANCE COMPANY | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION New Hampshire | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 16,714,025 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 16,714,025 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 16,714,025 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.8% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) AW UNDERWRITERS INC. | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Delaware | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 5,904,625 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 5,904,625 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,904,625 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.1% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) ALLIED WORLD SPECIALTY INSURANCE COMPANY | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Delaware | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 5,904,625 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 5,904,625 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,904,625 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.1% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) ALLIED WORLD SURPLUS LINES INSURANCE COMPANY | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Arkansas | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 1,019,671 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 1,019,671 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,019,671 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.4% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) ALLIED WORLD ASSURANCE COMPANY, AG | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Switzerland | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 2,120,890 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 2,120,890 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,120,890 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.7% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) ALLIED WORLD ASSURANCE COMPANY (EUROPE) DAC | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Ireland | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 1,129,922 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 1,129,922 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,129,922 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.4% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) ALLIED WORLD ASSURANCE COMPANY (U.S.) INC. | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Delaware | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 1,019,671 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 1,019,671 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,019,671 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.4% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) CRUM & FORSTER HOLDINGS CORP. | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Delaware | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 13,889,562 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 13,889,562 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 13,889,562 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.8% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) UNITED STATES FIRE INSURANCE COMPANY | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Delaware | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 13,889,562 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 13,889,562 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 13,889,562 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.8% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) ZENITH NATIONAL INSURANCE CORP. | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Delaware | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 3,542,612 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 3,542,612 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,542,612 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.2% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) ZENITH INSURANCE COMPANY | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION California | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 3,542,612 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 3,542,612 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,542,612 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.2% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) BRIT LIMITED | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION England and Wales | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 6,914,899 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 6,914,899 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 6,914,899 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.4% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) BRIT INSURANCE HOLDINGS LIMITED | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION England and Wales | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 6,914,899 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 6,914,899 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 6,914,899 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.4% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) BRIT REINSURANCE (BERMUDA) LIMITED | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Bermuda | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 3,605,190 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 3,605,190 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,605,190 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.3% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) BRIT UW LIMITED | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION England and Wales | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 2,582,532 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 2,582,532 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,582,532 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.9% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) TIG INSURANCE COMPANY | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION California | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 5,074,006 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 5,074,006 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,074,006 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.8% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) CONNEMARA REINSURANCE COMPANY LTD. | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION BARBADOS | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 360,231 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 360,231 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 360,231 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.1% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) ALLIED WORLD NATIONAL ASSURANCE COMPANY | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION New Hampshire | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 13,333 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 13,333 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 13,333 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.0% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) CRC REINSURANCE LIMITED | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION Barbados | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 864,552 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 864,552 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 864,552 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.3% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) BRIT SYNDICATES LIMITED | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION England and Wales | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 727,177 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 727,177 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 727,177 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.3% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
|
CUSIP No. Y0436Q109
|
13D | ||||
|
1
|
Names of Reporting Person/I.R.S. Identification Nos. of Above Persons (Entities Only) THE NORTH RIVER INSURANCE COMPANY | ||||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x | ||||
|
3
|
SEC USE ONLY
| ||||
| 4 |
SOURCE OF FUNDS OO | ||||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E). o | ||||
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION New Jersey | ||||
|
NUMBER OF SHARES |
7
|
SOLE VOTING POWER 0 | |||
|
8
|
SHARED VOTING POWER 2,237,100 | ||||
|
9
|
SOLE DISPOSITIVE POWER 0 | ||||
|
10
|
SHARED DISPOSITIVE POWER 2,237,100 | ||||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,237,100 | ||||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ¨
| ||||
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.8% | ||||
|
14
|
TYPE OF REPORTING PERSON CO | ||||
Explanatory note
Pursuant to Rule 13d-2 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), this Amendment No. 14 to Schedule 13D (this “Amendment No. 14”) amends and supplements the statement on Schedule 13D filed with the United States Securities and Exchange Commission (the “SEC”) on February 26, 2018 (as amended and supplemented prior to the date hereof, the “Original Schedule 13D” and, as amended and supplemented by this Amendment No. 14, the “Schedule 13D”) with respect to Class A common shares of Seaspan Corporation, the predecessor of Atlas Corp., a Marshall Islands corporation (“Atlas”). This Schedule 13D relates to the common shares, par value $0.01 per share of Atlas (“Common Shares”).
This Amendment No. 14 is filed in connection with the entering into of the Merger Agreement and certain other related agreements (as described below).
The following amendments to Items 2, 4, 5, 6 and 7 of the Original Schedule 13D are hereby made:
| Item 2. | Identity and Background. |
Item 2 of the Original Schedule 13D is hereby amended and restated in its entirety to read as follows:
“This statement is being jointly filed by the following persons (collectively, the “Reporting Persons”):
| 1. | V. Prem Watsa, an individual, is a citizen of Canada, and is the Chairman and Chief Executive Officer of Fairfax Financial Holdings Limited. Mr. Watsa’s business address is 95 Wellington Street West, Suite 800, Toronto, Ontario, Canada, M5J 2N7; |
| 2. | The Second 810 Holdco Ltd. (“810 Holdco”), a corporation incorporated under the laws of Canada, is controlled by V. Prem Watsa. 810 Holdco is an investment holding company. The principal business and principal office address of 810 Holdco is 95 Wellington Street West, Suite 802, Toronto, Ontario, Canada, M5J 2N7; |
| 3. | The Second 1109 Holdco Ltd. (“Holdco”), a corporation incorporated under the laws of Canada, is controlled by V. Prem Watsa. Holdco is an investment holding company. The principal business and principal office address of Holdco is 95 Wellington Street West, Suite 802, Toronto, Ontario, Canada, M5J 2N7; |
| 4. | The Sixty Two Investment Company Limited (“Sixty Two”), a corporation incorporated under the laws of British Columbia, is controlled by V. Prem Watsa. Sixty Two is an investment holding company. The principal business and principal office address of Sixty Two is 1600 Cathedral Place, 925 West Georgia St., Vancouver, British Columbia, Canada, V6C 3L2; |
| 5. | 12002574 Canada Inc. (“12002574”), a corporation incorporated under the laws of Canada, is controlled by V. Prem Watsa. 12002574 is an investment holding company. The principal business and principal office address of 12002574 is 95 Wellington Street West, Suite 800, Toronto, Ontario, Canada, M5J 2N7; |
| 6. | Fairfax Financial Holdings Limited (“Fairfax”) is a corporation incorporated under the laws of Canada. Fairfax is a holding company. The principal business and principal office address of Fairfax is 95 Wellington Street West, Suite 800, Toronto, Ontario, Canada, M5J 2N7; |
| 7. | FFHL Group Ltd. (“FFHL”), a corporation incorporated under the laws of Canada, is a wholly owned subsidiary of Fairfax. FFHL is a holding company. The principal business and principal office address of FFHL is 95 Wellington Street West, Suite 800, Toronto, Ontario, Canada, M5J 2N7; |
| 8. | Fairfax (Barbados) International Corp. (“Fairfax Barbados”), a corporation incorporated under the laws of Barbados, is a wholly owned subsidiary of Fairfax. Fairfax Barbados is an investment holding company. The principal business and principal office address of Fairfax Barbados is #12 Pine Commercial Centre, The Pine, St. Michael, Barbados, BB11103; |
| 9. | Wentworth Insurance Company Ltd. (“Wentworth”), a corporation incorporated under the laws of Barbados, is a wholly owned subsidiary of Fairfax. The principal business of Wentworth is reinsurance. The principal business and principal office address of Wentworth is #12 Pine Commercial Centre, The Pine, St. Michael, Barbados, BB11103; |
| 10. | The Sixty Three Foundation (“Sixty Three”) a non-profit corporation incorporated under the laws of Canada, is a registered charity. The principal business and principal office address of Sixty Three is 95 Wellington Street West, Suite 800, Toronto, Ontario, Canada, M5J 2N7; |
| 11. | Fairfax (US) Inc. (“Fairfax US”), a corporation incorporated under the laws of Delaware, is a wholly owned subsidiary of Fairfax. Fairfax US is a holding company. The principal business and principal office address of Fairfax US is 2850 Lake Vista Drive, Suite 150, Lewisville, Texas, USA, 75067; |
| 12. | Odyssey US Holdings Inc. (“Odyssey”), a corporation incorporated under the laws of Delaware, is a wholly owned subsidiary of Fairfax. Odyssey is a holding company. The principal business and principal office address of Odyssey is 1209 Orange Street, Wilmington, Delaware, USA, 19801; |
| 13. | Odyssey Group Holdings, Inc. (“Odyssey Group”), a corporation incorporated under the laws of Delaware, is a subsidiary of Fairfax. Odyssey Group is a holding company. The principal business and principal office address of Odyssey Group is 300 First Stamford Place, Stamford, Connecticut, USA, 06902; |
| 14. | Odyssey Reinsurance Company (“Odyssey Reinsurance”), a corporation incorporated under the laws of Connecticut, is a subsidiary of Fairfax. The principal business of Odyssey Reinsurance is reinsurance. The principal business and principal office address of Odyssey Reinsurance is 300 First Stamford Place, Stamford, Connecticut, USA, 06902; |
| 15. | Newline Holdings UK Limited (“Newline UK”), a corporation incorporated under the laws of England and Wales, is a subsidiary of Fairfax. Newline UK is a holding company. The principal business and principal office address of Newline UK is 1 Fen Court, London, England, EC3M 5BN; |
| 16. |
Newline Corporate Name Limited (“Newline”), a corporation incorporated under the laws of England and Wales, is a subsidiary of Fairfax. Newline is a Corporate Member of Lloyd’s (and the sole capital provider to Newline Syndicate 1218 at Lloyd’s). The principal business and principal office address of Newline is 1 Fen Court, London, England, EC3M 5BN;
| |
| 17. | Odyssey Reinsurance (Barbados) Ltd. (“Odyssey Barbados”), a corporation incorporated under the laws of Barbados, is a subsidiary of Fairfax. The principal business of Odyssey Barbados is reinsurance. The principal business and principal office address of Odyssey Reinsurance is #12 Pine Commercial Centre, The Pine, St. Michael, BB11103, Barbados; | |
| 18. | Hudson Insurance Company (“Hudson Insurance”), a corporation incorporated under the laws of Delaware, is a subsidiary of Fairfax. The principal business of Hudson Insurance is property and casualty insurance. The principal business and principal office address of Hudson Insurance is 100 William Street, 5th Floor, New York, New York, USA, 10038; |
| 19. | Hilltop Specialty Insurance Company (“Hilltop Specialty”), a corporation incorporated under the laws of New York, is a subsidiary of Fairfax. The principal business of Hilltop Specialty is surplus lines insurance. The principal business and principal office address of Hilltop Specialty is 100 William Street, 5th Floor, New York, New York, USA, 10038; | |
| 20. | Hudson Excess Insurance Company (“Hudson Excess”), a corporation incorporated under the laws of Delaware, is a subsidiary of Fairfax. The principal business of Hudson Excess is as a surplus lines insurer. The principal business and principal office address of Hudson Excess is 100 William Street, 5th Floor, New York, New York, USA, 10038; |
| 21. | 1102952 B.C. Unlimited Liability Company (“1102952”), a corporation incorporated under the laws of British Columbia, is a wholly owned subsidiary of Fairfax. 1102952 is a holding company. The principal business and principal office address of 1102952 is 1600 - 925 West Georgia Street, Vancouver, British Columbia, Canada, V6C 3L2; |
| 22. | Allied World Assurance Company Holdings, Ltd (“Allied Holdings Bermuda”), a corporation incorporated under the laws of Bermuda, is a subsidiary of Fairfax. Allied Holdings Bermuda is a holding company. The principal business and principal office address of Allied Holdings Bermuda is 27 Richmond Road, Pembroke, Bermuda, HM 08; |
| 23. | Allied World Assurance Company Holdings I, Ltd (“Allied Holdings I Ltd”), a corporation incorporated under the laws of Bermuda, is a subsidiary of Fairfax. Allied Holdings I Ltd is a holding company. The principal business and principal office address of Allied Holdings I Ltd is 27 Richmond Road, Pembroke, Bermuda, HM 08; |
| 24. | Allied World Assurance Company, Ltd (“Allied Assurance”), a corporation incorporated under the laws of Bermuda, is a subsidiary of Fairfax. The principal business of Allied Assurance is insurance. The principal business and principal office address of Allied Assurance is 27 Richmond Road, Pembroke, Bermuda, HM 08; |
| 25. | Allied World Assurance Holdings (Ireland) Ltd (“Allied Ireland”), a corporation incorporated under the laws of Bermuda, is a subsidiary of Fairfax. Allied Ireland is a holding company. The principal business and principal office address of Allied Ireland is 27 Richmond Road, Pembroke, Bermuda, HM 08; |
| 26. | Allied World Assurance Holdings (U.S.) Inc. (“Allied U.S.”), a corporation incorporated under the laws of Delaware, is a subsidiary of Fairfax. Allied U.S. is a holding company. The principal business and principal office address of Allied U.S. is 1209 Orange Street, Wilmington, Delaware, USA, 19801; |
| 27. | Allied World Insurance Company (“Allied Insurance”), a corporation incorporated under the laws of New Hampshire, is a subsidiary of Fairfax. The principal business of Allied Insurance is insurance. The principal business and principal office address of Allied Insurance is 10 Ferry Street, Suite 313, Concord, New Hampshire, USA, 03301; |
| 28. | AW Underwriters Inc. (“AW”), a corporation incorporated under the laws of Delaware, is a subsidiary of Fairfax. AW is an insurance agency. The principal business and principal office address of AW is 251 Little Falls Drive, Wilmington, Delaware, USA, 19808; |
| 29. | Allied World Specialty Insurance Company (“Allied Specialty”), a corporation incorporated under the laws of Delaware, is a subsidiary of Fairfax. The principal business of Allied Specialty is insurance. The principal business and principal office address of Allied Specialty is 251 Little Falls Drive, Wilmington, Delaware, USA, 19808; |
| 30. | Allied World Surplus Lines Insurance Company (“Allied Lines”), a corporation incorporated under the laws of Arkansas, is a subsidiary of Fairfax. The principal business of Allied Lines is insurance. The principal business and principal office address of Allied Lines is 425 West Capitol Avenue, Suite 1800, Little Rock, Arkansas, USA, 72201-3525; |
| 31. | Allied World Assurance Company, AG (“Allied World AG”), a corporation incorporated under the laws of Switzerland, is a subsidiary of Fairfax. The principal business of Allied World AG is insurance. The principal business and principal office address of Allied World AG is Park Tower, 15th Floor, Gubelstrasse 24, 6300, Zug, Switzerland; |
| 32. | Allied World Assurance Company (Europe) dac (“Allied Europe”), a corporation incorporated under the laws of Ireland, is a subsidiary of Fairfax. The principal business of Allied Europe is insurance. The principal business and principal office address of Allied Europe is 3rd Floor, Georges Quay Plaza, Georges Quay, Dublin 2, Ireland; |
| 33. | Allied World Assurance Company (U.S.) Inc. (“Allied Assurance U.S.”), a corporation incorporated under the laws of Delaware, is a subsidiary of Fairfax. The principal business of Allied Assurance U.S. is insurance. The principal business and principal office address of Allied Assurance U.S. is 251 Little Falls Drive, Wilmington, Delaware, USA, 19808; |
| 34. | Crum & Forster Holdings Corp. (“Crum & Forster”), a corporation incorporated under the laws of Delaware, is a wholly owned subsidiary of Fairfax. Crum & Forster is a holding company. The principal business and principal office address of Crum & Forster is 1209 Orange Street, Wilmington, Delaware, USA, 19801; |
| 35. | United States Fire Insurance Company (“US Fire”), a corporation incorporated under the laws of Delaware, is a wholly owned subsidiary of Fairfax. The principal business of US Fire is insurance. The principal business and principal office address of US Fire is 1209 Orange Street, Wilmington, Delaware, USA, 19801; |
| 36. | Zenith National Insurance Corp. (“ZNIC”), a corporation incorporated under the laws of Delaware, is a wholly owned subsidiary of Fairfax. ZNIC is a holding company. The principal business and principal office address of ZNIC is 21255 Califa Street, Woodland Hills, California, USA, 91367-5021; |
| 37. | Zenith Insurance Company (“Zenith”), a corporation incorporated under the laws of California, is a wholly owned subsidiary of Fairfax. The principal business of Zenith is workers’ compensation insurance. The principal business and principal office address of Zenith is 21255 Califa Street, Woodland Hills, California, USA, 91367-5021; |
| 38. | Brit Limited (“Brit”), a corporation incorporated under the laws of England and Wales, is a subsidiary of Fairfax. Brit is a holding company. The principal business and principal office address of Brit is The Leadenhall Building, 122 Leadenhall Street, London, United Kingdom, EC3V 4AB; |
| 39. | Brit Insurance Holdings Limited (“Brit Insurance”), a corporation incorporated under the laws of England and Wales, is a subsidiary of Fairfax. Brit Insurance is a holding company. The principal business and principal office address of Brit Insurance is The Leadenhall Building, 122 Leadenhall Street, London, United Kingdom, EC3V 4AB; |
| 40. | Brit Reinsurance (Bermuda) Limited (“Brit Reinsurance”), a corporation incorporated under the laws of Bermuda, is a subsidiary of Fairfax. The principal business of Brit Reinsurance is reinsurance. The principal business and principal office address of Brit Reinsurance is Clarendon House, 2 Church Street, Hamilton, Bermuda, HM 11; |
| 41. | Brit UW Limited (“Brit UW”), a corporation incorporated under the laws of England and Wales, is a Lloyd’s Corporate Member. The principal business of Brit UW is Lloyd's Corporate Member. The principal business address and principal office address of Brit UW is The Leadenhall Building, 122 Leadenhall Street, London, United Kingdom, EC3V 4AB; |
| 42. | TIG Insurance Company (“TIG”), a corporation incorporated under the laws of California, is a wholly owned subsidiary of Fairfax. The principal business of TIG is property and casualty insurance. The principal business and principal office address of TIG is 250 Commercial Street, Suite 5000, Manchester, New Hampshire, USA, 03101; | |
|
43.
|
Connemara Reinsurance Company Ltd. (“Connemara”), a company incorporated under the laws of Barbados, is a wholly owned subsidiary of Fairfax. The principal business of Connemara is reinsurance. The principal business address and principal office address of Connemara is #12 Pine Commercial, The Pine, St. Michael, Barbados, BB11103; | |
| 44. | Allied World National Assurance Company (“Allied National”), a corporation incorporated under the laws of New Hampshire, is a subsidiary of Fairfax. The principal business of Allied National is insurance. The principal business and principal office address of Allied National is 10 Ferry Street, Suite 313, Concord, New Hampshire, USA, 03301; |
| 45. | CRC Reinsurance Limited (“CRC”), a corporation incorporated under the laws of the Barbados, is a wholly owned subsidiary of Fairfax. The principal business of CRC is reinsurance. The principal business address and principal office address of CRC is #12 Pine Commercial, The Pine, St Michael, Barbados, BB11103; |
| 46. | Brit Syndicates Limited (“Brit Syndicates”), a corporation incorporated under the laws of England and Wales, is a subsidiary of Fairfax. The principal business of Brit Syndicates is insurance. The principal business and principal office address of Brit Syndicates is The Leadenhall Building, 122 Leadenhall Street, London, United Kingdom, EC3V4AB; and |
| 47. | The North River Insurance Company (“North River”), a corporation incorporated under the laws of New Jersey, is a wholly owned subsidiary of Fairfax. The principal business of North River is insurance. The principal business and principal office address of North River is 305 Madison Avenue, Morristown, New Jersey, USA, 07962. |
Neither the filing of this Schedule 13D nor the information contained herein shall be deemed to constitute an affirmation by V. Prem Watsa, 810 Holdco, Holdco, Sixty Two, 12002574, Fairfax, FFHL, Fairfax Barbados, Wentworth, Sixty Three, Fairfax US, Odyssey, Odyssey Group, Odyssey Reinsurance, Newline UK, Newline, Odyssey Barbados, Hudson Insurance, Hilltop Specialty, Hudson Excess, 1102952, Allied Holdings Bermuda, Allied Holdings I Ltd, Allied Assurance, Allied Ireland, Allied U.S., Allied Insurance, AW, Allied Specialty, Allied Lines, Allied World AG, Allied Europe, Allied Assurance U.S., Crum & Forster, US Fire, ZNIC, Zenith, Brit, Brit Insurance, Brit Reinsurance, Brit UW, TIG, Connemara, Allied National, CRC, Brit Syndicates or North River that it is the beneficial owner of the Common Shares referred to herein for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.
The name, present principal occupation or employment and name, principal business and address of any corporation or other organization in which such employment is conducted and the citizenship of each director and executive officer of each of the Reporting Persons is set forth in Annex A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, R, S, T, U, V, W, X, Y, Z, AA, BB, CC, DD, EE, FF, GG, HH, II, JJ, KK, LL, MM, NN, OO, PP, QQ, RR, SS and TT as the case may be, and such Annexes are incorporated herein by reference.
Pursuant to Rule 13d-1(k) under the Exchange Act, the Reporting Persons have agreed to file jointly one statement with respect to their ownership of the Common Shares.
During the last five years, none of the Reporting Persons, and to the best of each such Reporting Person’s knowledge, none of the executive officers or directors of such Reporting Person have been (a) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.”
| Item 4. | Purpose of Transaction. |
Item 4 of the Original Schedule 13D is hereby amended and supplemented by the addition of the following:
“On October 31, 2022, Atlas entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Poseidon Acquisition Corp. (“Poseidon”) and Atlas Merger Sub, Inc., a wholly-owned subsidiary of Poseidon (“Merger Sub”), pursuant to which, among other things, and subject to the satisfaction or waiver of the conditions set forth therein, Merger Sub will merge with and into Atlas, with Atlas continuing as the surviving corporation and a wholly-owned subsidiary of Poseidon (other than with respect to Atlas’ preferred shares) (the “Merger”). Poseidon is an entity formed by certain affiliates of Fairfax, certain affiliates of the Washington Family (“Washington”), David Sokol, Chairman of the Board of Atlas, and Ocean Network Express Pte. Ltd. (“ONE”), and certain of their respective affiliates (collectively, the “Consortium”).
At the effective time of the Merger (the “Effective Time”), pursuant to the Merger Agreement, the Common Shares outstanding immediately prior to the Effective Time, other than outstanding shares of common stock, par value $0.01 per share, of Atlas contributed to Poseidon immediately prior to the closing of the Merger by Fairfax, Washington, Mr. Sokol and Bing Chen, President and CEO of Atlas (the “Rollover Shares”), will be converted into the right to receive $15.50 per share in cash (the “Merger Consideration”). Each share of preferred stock of Atlas issued and outstanding immediately prior to the Effective Time will be unaffected by the Merger, will remain outstanding and continue to trade on the NYSE, and no consideration shall be delivered in respect thereof.
Concurrently with the execution of the Merger Agreement, Poseidon and the holders of the Rollover Shares, as well as Mr. Chen, entered into certain rollover and contribution agreements, pursuant to which such holders will contribute to Poseidon the number of Common Shares set forth therein in exchange for a number of Poseidon common shares equal to the number of Common Shares contributed (the “Rollover Agreements”). The summary of the Rollover Agreements above is qualified in its entirety by reference to the Rollover Agreements as attached as Exhibits 99.9, 99.10 and 99.11, respectively, which are incorporated by reference into this Item 4.
Also, prior to or concurrently with the execution of this Agreement, and as a condition and inducement to Atlas’ willingness to enter into the Merger Agreement, ONE, Washington and Mr. Sokol entered into equity commitment letters with Poseidon pursuant to which each such investor has agreed to provide, or cause to be provided, equity financing to Poseidon in connection with the Merger Agreement in an amount sufficient to fund the Merger consideration. The summary of the Equity Commitment Letters above is qualified in its entirety by reference to the Equity Commitment Letters attached as Exhibits 99.12, 99.13 and 99.14 hereto, which are incorporated by reference into this Item 4.
Concurrently with the execution of the Merger Agreement, each of Fairfax, Washington and Mr. Sokol entered into voting and support agreements (the “Voting and Support Agreements”) pursuant to which such shareholders have, on the terms and subject to the conditions set forth therein, among other things, agreed to vote all of the Common Shares as provided therein. The Voting and Support Agreements are included herewith as 99.15, 99.16 and 99.17 and are incorporated herein by reference.
The Merger would result in one or more of the actions specified in clauses (a)-(j) of Item 4 of Schedule 13D, including the acquisition of additional securities of Atlas, a merger or other extraordinary transaction involving Atlas, changes in the present board of directors or management of Atlas, changes to Atlas’ charter, by-laws or instruments corresponding thereto, the delisting of the Common Shares from the New York Stock Exchange and the Common Shares becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, and could result in a change to the present capitalization or dividend policy of Atlas.
The foregoing description of the Merger does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, which is included herewith as Exhibit 99.7 and incorporated herein by reference. Poseidon and Atlas have issued a joint press release relating to the Merger Agreement which is attached as Exhibit 99.8.”
| Item 5. | Interest in Securities of the Issuer. |
Item 5 of the Original Schedule 13D is hereby amended and restated in its entirety to read as follows:
| “(a) |
Based on the most recent information available, the aggregate number and percentage of Common Shares (the securities identified pursuant to Item 1 of this Schedule 13D) that are beneficially owned by each of the Reporting Persons is set forth in boxes 11 and 13 of the second part of the cover page to this Schedule 13D for each of the Reporting Persons, and such information is incorporated herein by reference.
The calculation of Fairfax beneficial ownership includes 3,289,570 Common Shares over which Fairfax exercises investment discretion, but which are subject to the Asset Value Loan Notes as described in Item 6 of the Schedule 13D/A filed by Fairfax with the SEC on August 23, 2021 for Atlas.
The percentage of Common Shares beneficially owned by each of the Reporting Persons was calculated based on 287,251,256 Common Shares deemed to be issued and outstanding as of June 30, 2022 (and assuming conversion of all of the warrants held by the Reporting Persons into Common Shares). |
As a result of the execution and delivery of the Joint Bidding Agreement, the Reporting Persons may be deemed to have formed a “group” as such term is used in Regulation 13D under the Exchange Act with each member of the Consortium that beneficially owns Common Shares of Atlas. The Reporting Persons disclaim any membership in a group with DS and Washington Family Holdings. Each of DS and Washington Family Holdings have separately filed an amended Schedule 13D reporting their respective beneficial ownership of Common Shares. The beneficial ownership of the Reporting Persons does not include any Common Shares which may be beneficially owned by any of the other members of the Consortium and the Reporting Persons disclaim beneficial ownership over any such Common Shares.
| (b) | Except as described below, the numbers of Common Shares as to which each of the Reporting Persons has sole voting power, shared voting power, sole dispositive power and shared dispositive power is set forth in boxes 7, 8, 9 and 10, respectively, on the second part of the cover page to this Schedule 13D for each of the Reporting Persons, and such information is incorporated herein by reference. |
| (c) | Except as described herein, none of the Reporting Persons, nor, to the best knowledge of the Reporting Persons, any person listed in Annex A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, R, S, T, U, V, W, X, Y, Z, AA, BB, CC, DD, EE, FF, GG, HH, II, JJ, KK, LL, MM, NN, OO, PP, QQ, RR, SS or TT beneficially owns, or has acquired or disposed of, any Common Shares during the last 60 days. |
| (d) | No person is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of Common Shares held by the Reporting Persons other than each of the Reporting Persons. |
| (e) | Not applicable.” |
| Item 6. | Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. |
Item 6 of the Original Schedule 13D is hereby amended and supplemented, with Item 4 incorporated by reference, by the addition of the following:
“On October 31, 2022, the members of the Consortium entered into a Side Letter to Joint Bidding Agreement (the “Side Letter”), which amends certain provisions of the original joint bidding agreement executed by the members (and attached as Exhibit 99.1 to Amendment No. 11 to the Original 13D filed by the Reporting Persons on August 5, 2022) to, among other things, provide that (i) the members would supply certain information to Atlas in connection with its antitrust, regulatory and SEC filings to be made pursuant to the Merger, and (ii) that the Equity Commitment Letters describe under Item 4 above would supersede the prior equity commitment letters provided to Poseidon. The summary of the Side Letter above is qualified in its entirety by reference to the Side Letter attached as Exhibit 99.18, which is incorporated by reference into this Item 6.”
| Item 7. | Material to Be Filed as Exhibits. |
The following are filed herewith as exhibits:
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | V. Prem Watsa | |
| /s/ V. Prem Watsa | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | The Second 810 Holdco Ltd. | ||
| By: | /s/ V. Prem Watsa | ||
| Name: | V. Prem Watsa | ||
| Title: | Director | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | The Second 1109 Holdco Ltd. | ||
| By: | /s/ V. Prem Watsa | ||
| Name: | V. Prem Watsa | ||
| Title: | President | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | The Sixty Two Investment Company Limited | ||
| By: | /s/ V. Prem Watsa | ||
| Name: | V. Prem Watsa | ||
| Title: | President | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | 12002574 Canada Inc. | ||
| By: | /s/ V. Prem Watsa | ||
| Name: | V. Prem Watsa | ||
| Title: | President | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Fairfax Financial Holdings Limited | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | President and Chief Operating Officer | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | FFHL Group Ltd. | ||
| By: | /s/ V. Prem Watsa | ||
| Name: | V. Prem Watsa | ||
| Title: | President | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Fairfax (Barbados) International Corp. | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Wentworth Insurance Company Ltd. | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | The Sixty Three Foundation | ||
| By: | /s/ V. Prem Watsa | ||
| Name: | V. Prem Watsa | ||
| Title: | Director | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Fairfax (US) Inc. | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Odyssey US Holdings Inc. | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Odyssey Group Holdings, Inc. | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Odyssey Reinsurance Company | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Newline Holdings UK Limited | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Newline Corporate Name Limited | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Odyssey Reinsurance (Barbados) Ltd. | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Hudson Insurance Company | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Hilltop Specialty Insurance Company | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Hudson Excess Insurance Company | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | 1102952 B.C. Unlimited Liability Company | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Allied World Assurance Company Holdings, Ltd | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Allied World Assurance Company Holdings I, Ltd | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Allied World Assurance Company, Ltd | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Allied World Assurance Holdings (Ireland) Ltd. | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Allied World Assurance Holdings (U.S.) Inc. | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Allied World Insurance Company | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | AW Underwriters Inc. | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Allied World Specialty Insurance Company | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Allied World Surplus Lines Insurance Company | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Allied World Assurance Company, AG | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Allied World Assurance Company (Europe) dac | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Allied World Assurance Company (U.S.) Inc. | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Crum & Forster Holdings Corp. | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | United States Fire Insurance Company | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Zenith National Insurance Corp. | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Zenith Insurance Company | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Brit Limited | ||
| By: | /s/ Gavin Wilkinson | ||
| Name: | Gavin Wilkinson | ||
| Title: | Group Chief Financial Officer | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Brit Insurance Holdings Limited | ||
| By: | /s/ Gavin Wilkinson | ||
| Name: | Gavin Wilkinson | ||
| Title: | Group Chief Financial Officer | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Brit Reinsurance (Bermuda) Limited | ||
| By: | /s/ Gavin Wilkinson | ||
| Name: | Gavin Wilkinson | ||
| Title: | Group Chief Financial Officer | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Brit UW Limited | ||
| By: | /s/ Gavin Wilkinson | ||
| Name: | Gavin Wilkinson | ||
| Title: | Group Chief Financial Officer | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | TIG Insurance Company | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Connemara Reinsurance Company Ltd. | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Allied World National Assurance Company | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | CRC Reinsurance Limited | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | Brit Syndicates Limited | ||
| By: | /s/ Gavin Wilkinson | ||
| Name: | Gavin Wilkinson | ||
| Title: | Group Chief Financial Officer | ||
SIGNATURE
After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: November 2, 2022 | The North River Insurance Company | ||
| By: | /s/ Peter Clarke | ||
| Name: | Peter Clarke | ||
| Title: | Attorney-in-Fact pursuant to Power of Attorney attached to this Schedule 13D | ||
Annex Index
| Annex | Description | |
| A | Directors and Executive Officers of The Second 810 Holdco Ltd. | |
| B | Directors and Executive Officers of The Second 1109 Holdco Ltd. | |
| C | Directors and Executive Officers of The Sixty Two Investment Company Limited | |
| D | Directors and Executive Officers of 12002574 Canada Inc. | |
| E | Directors and Executive Officers of Fairfax Financial Holdings Limited | |
| F | Directors and Executive Officers of FFHL Group Ltd. | |
| G | Directors and Executive Officers of Fairfax (Barbados) International Corp. | |
| H | Directors and Executive Officers of Wentworth Insurance Company Ltd. | |
| I | Directors and Executive Officers of The Sixty Three Foundation | |
| J | Directors and Executive Officers of Fairfax (US) Inc. | |
| K | Directors and Executive Officers of Odyssey US Holdings Inc. | |
| L | Directors and Executive Officers of Odyssey Group Holdings, Inc. | |
| M | Directors and Executive Officers of Odyssey Reinsurance Company | |
| N | Directors and Executive Officers of Newline Holdings UK Limited | |
| O | Directors and Executive Officers of Newline Corporate Name Limited | |
| P | Directors and Executive Officers of Odyssey Reinsurance (Barbados) Ltd. | |
| Q | Directors and Executive Officers of Hudson Insurance Company | |
| R | Directors and Executive Officers of Hilltop Specialty Insurance Company | |
| S | Directors and Executive Officers of Hudson Excess Insurance Company | |
| T | Directors and Executive Officers of 1102952 B.C. Unlimited Liability Company | |
| U | Directors and Executive Officers of Allied World Assurance Company Holdings, Ltd | |
| V | Directors and Executive Officers of Allied World Assurance Company Holdings I, Ltd | |
| W | Directors and Executive Officers of Allied World Assurance Company, Ltd | |
| X | Directors and Executive Officers of Allied World Assurance Holdings (Ireland) Ltd | |
| Y | Directors and Executive Officers of Allied World Assurance Holdings (U.S.) Inc. | |
| Z | Directors and Executive Officers of Allied World Insurance Company | |
| AA | Directors and Executive Officers of AW Underwriters Inc. | |
| BB | Directors and Executive Officers of Allied World Specialty Insurance Company | |
| CC | Directors and Executive Officers of Allied World Surplus Lines Insurance Company | |
| DD | Directors and Executive Officers of Allied World Assurance Company, AG | |
| EE | Directors and Executive Officers of Allied World Assurance Company (Europe) dac | |
| FF | Directors and Executive Officers of Allied World Assurance Company (U.S.) Inc. | |
| GG | Directors and Executive Officers of Crum & Forster Holdings Corp. | |
| HH | Directors and Executive Officers of United States Fire Insurance Company | |
| II | Directors and Executive Officers of Zenith National Insurance Corp. | |
| JJ | Directors and Executive Officers of Zenith Insurance Company | |
| KK | Directors and Executive Officers of Brit Limited | |
| LL | Directors and Executive Officers of Brit Insurance Holdings Limited | |
| MM | Directors and Executive Officers of Brit Reinsurance (Bermuda) Limited | |
| NN | Directors and Executive Officers of Brit UW Limited | |
| OO | Directors and Executive Officers of TIG Insurance Company | |
| PP | Directors and Executive Officers of Connemara Reinsurance Company Ltd. | |
| Directors and Executive Officers of Allied World National Assurance Company | ||
| RR | Directors and Executive Officers of CRC Reinsurance Limited | |
| SS | Directors and Executive Officers of Brit Syndicates Limited | |
| TT | Directors and Executive Officers of The North River Insurance Company |
ANNEX A
DIRECTORS AND EXECUTIVE OFFICERS OF
THE SECOND 810 HOLDCO LTD.
The following table sets forth certain information with respect to the directors and executive officers of The Second 810 Holdco Ltd.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Eric P. Salsberg (Secretary) |
Vice President, Corporate Affairs and Corporate Secretary, Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 |
Canada | ||
| V. Prem Watsa (President and Director) |
Chairman and Chief Executive Officer, Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 |
Canada |
ANNEX B
DIRECTORS AND EXECUTIVE OFFICERS OF
THE SECOND 1109 HOLDCO LTD.
The following table sets forth certain information with respect to the directors and executive officers of The Second 1109 Holdco Ltd.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Eric P. Salsberg (Secretary) |
Vice President, Corporate Affairs and Corporate Secretary, Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 |
Canada | ||
| V. Prem Watsa (President and Director) |
Chairman and Chief Executive Officer, Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 |
Canada |
ANNEX C
DIRECTORS AND EXECUTIVE OFFICERS OF
THE SIXTY TWO INVESTMENT COMPANY LIMITED
The following table sets forth certain information with respect to the directors and executive officers of The Sixty Two Investment Company Limited.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Eric P. Salsberg (Secretary and Director) |
Vice President, Corporate Affairs and Corporate Secretary, Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 |
Canada | ||
| V. Prem Watsa (President and Director) |
Chairman and Chief Executive Officer, Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 |
Canada |
ANNEX D
DIRECTORS AND EXECUTIVE OFFICERS OF
12002574 CANADA INC.
The following table sets forth certain information with respect to the directors and executive officers of 12002574 Canada Inc.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Eric P. Salsberg (Secretary) |
Vice President, Corporate Affairs and Corporate Secretary, Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 |
Canada | ||
| V. Prem Watsa (President and Director) |
Chairman and Chief Executive Officer, Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 |
Canada |
ANNEX E
DIRECTORS AND EXECUTIVE OFFICERS OF
FAIRFAX FINANCIAL HOLDINGS LIMITED
The following table sets forth certain information with respect to the directors and executive officers of Fairfax Financial Holdings Limited.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Benjamin Watsa (Director) |
Founder and President, Marval Capital Ltd. 77 King Street West, Suite 4545 Toronto, Ontario M5K 1K2 |
Canada | ||
| Bradley P. Martin (Vice President, Strategic Investments) |
Vice President, Strategic Investments, Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 |
Canada | ||
| Brandon W. Sweitzer (Director) |
Dean, Maurice R. Greenberg School of Risk Management, Insurance and Actuarial Science, St. John’s University 101 Murray Street, Suite 438 New York, New York 10007-2165 |
United States | ||
|
Bryan Bailey (Vice President, Tax) |
Vice President, Tax Fairfax Financial Holdings Limited |
Canada | ||
| Christine N. McLean (Director) |
Corporate Director, Fairfax Financial Holdings Limited, 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 |
Canada | ||
| David Johnston (Director) |
Corporate Director, Ottawa, Canada |
Canada | ||
| Eric P. Salsberg (Vice President, Corporate Affairs and Corporate Secretary) |
Vice President, Corporate Affairs and Corporate Secretary, Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 |
Canada | ||
| Jean Cloutier (Vice President, International Operations) |
Vice President, International Operations, Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 |
Canada |
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Jennifer Allen (Vice President and Chief Financial Officer) |
Vice President and Chief Financial Officer, Fairfax Financial Holdings Limited 95 Wellington Street West, Suite 800 Toronto, Ontario M5J 2N7 |
Canada | ||
| John Varnell (Vice President, Corporate Development) |
Vice President, Corporate Development, Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 |
Canada | ||
| Karen L. Jurjevich (Director) |
Principal, Branksome Hall and Chief Executive Officer, Branksome Hall Global 10 Elm Avenue Toronto, Ontario M4W 1N4 |
Canada | ||
| Lauren C. Templeton (Director) |
Founder and President, Templeton and Phillips Capital Management, LLC 810 Scenic Highway Lookout Mountain, TN, USA 37350 |
United States | ||
| Michael Wallace (Vice President, Insurance Operations) |
Vice President, Insurance Operations Fairfax Financial Holdings Limited, 95 Wellington Street West, Suite 800 Toronto ON M5J 2N7 |
Canada | ||
| Olivier Quesnel (Vice President and Chief Actuary) |
Vice President and Chief Actuary, Fairfax Financial Holdings Limited, 95 Wellington Street West, Suite 800 Toronto ON M5J 2N7 |
Canada | ||
| Peter Clarke (President and Chief Operating Officer) |
President and Chief Operating Officer, Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 |
Canada | ||
| R. William McFarland (Director) |
Corporate Director, Fairfax Financial Holdings Limited 95 Wellington Street West, Suite 800 Toronto, Ontario M5J 2N |
Canada | ||
| Robert J. Gunn (Director) |
Independent Business Consultant and Corporate Director, Toronto, Ontario, Canada |
Canada |
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Timothy R. Price (Director) |
Chairman of Brookfield Funds, Brookfield Asset Management Inc. c/o Edper Financial Group 51 Yonge Street, Suite 400 Toronto, ON M5E 1J1 |
Canada | ||
| V. Prem Watsa (Chairman and Chief Executive Officer) |
Chairman and Chief Executive Officer, Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 |
Canada | ||
| Vinodh Loganadhan (Vice President, Administrative Services) |
Vice President, Administrative Services, Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 |
Canada | ||
| William Weldon (Director) |
Independent Business Consultant, Florida, United States |
United States |
ANNEX F
DIRECTORS AND EXECUTIVE OFFICERS OF
FFHL GROUP LTD.
The following table sets forth certain information with respect to the directors and executive officers of FFHL Group Ltd.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Bradley P. Martin (Vice President and Secretary) |
Vice President, Strategic Investments, Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 |
Canada | ||
| Eric P. Salsberg (Vice President and Director) |
Vice President, Corporate Affairs and Corporate Secretary, Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 |
Canada | ||
| Jennifer Allen (Vice President and Director) |
Vice President and Chief Financial Officer, Fairfax Financial Holdings Limited 95 Wellington Street West, Suite 800 Toronto, Ontario M5J 2N7 |
Canada | ||
| Peter Clarke (Vice President and Director) |
Vice President and Chief Operating Officer, Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 |
Canada | ||
| V. Prem Watsa (President and Chief Executive Officer and Director) |
Chairman and Chief Executive Officer, Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 |
Canada |
ANNEX G
DIRECTORS AND EXECUTIVE OFFICERS OF
FAIRFAX (BARBADOS) INTERNATIONAL CORP.
The following table sets forth certain information with respect to the directors and executive officers of Fairfax (Barbados) International Corp.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Alistair Dent (Director) |
Director, Wentworth Insurance Company Ltd. Pine Commercial Centre #12 Pine Commercial Centre The Pine, St. Michael |
United Kingdom | ||
| Janice Burke (Managing Director) |
Managing Director, Wentworth Insurance Company Ltd. Pine Commercial Centre #12 Pine Commercial Centre The Pine, St. Michael |
United States | ||
| Jean Cloutier (Director) |
Vice President, International Operations, Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario, M5J 2N7 |
Canada | ||
| Lisl Lewis (Director) |
Director, Wentworth Insurance Company Ltd. Pine Commercial Centre #12 Pine Commercial Centre The Pine, St. Michael |
Barbados | ||
| Niall Tully (Vice President and Chief Financial Officer) |
Vice President and Chief Financial Officer, ffh Management Services First Floor 25-28 Adelaide Road Dublin 2 |
Ireland | ||
| Paul Mulvin (Vice President) |
Vice President, ffh Management Services First Floor 25-28 Adelaide Road Dublin 2 |
Ireland | ||
| Simon P.G. Lee (Director) |
Director, Wentworth Insurance Company Ltd. Pine Commercial Centre #12 Pine Commercial Centre The Pine, St. Michael |
United Kingdom | ||
| William P. Douglas (Director) |
Director, Wentworth Insurance Company Ltd. Pine Commercial Centre #12 Pine Commercial Centre The Pine, St. Michael |
Barbados |
ANNEX H
DIRECTORS AND EXECUTIVE OFFICERS OF
WENTWORTH INSURANCE COMPANY LTD.
The following table sets forth certain information with respect to the directors and executive officers of Wentworth Insurance Company Ltd.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Alistair Dent (Director) |
Director, Wentworth Insurance Company Ltd. Pine Commercial Centre #12 Pine Commercial Centre The Pine, St. Michael |
United Kingdom | ||
| Janice Burke (Managing Director) |
Managing Director, Wentworth Insurance Company Ltd. Pine Commercial Centre #12 Pine Commercial Centre The Pine, St. Michael |
United States | ||
| Jean Cloutier (Director) |
Vice President, International Operations, Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario, M5J 2N7 |
Canada | ||
| Lisl Lewis (Director) |
Director, Wentworth Insurance Company Ltd. Pine Commercial Centre #12 Pine Commercial Centre The Pine, St. Michael |
Barbados | ||
| Niall Tully (Vice President and Chief Financial Officer) |
Vice President and Chief Financial Officer, ffh Management Services First Floor 25-28 Adelaide Road Dublin 2 |
Ireland | ||
| Paul Mulvin (Vice President) |
Vice President, ffh Management Services First Floor 25-28 Adelaide Road Dublin 2 |
Ireland | ||
| Sammy S.Y. Chan (Vice President) |
Vice President, Fairfax Asia Limited 41/F Hopewell Centre 183 Queen’s Road East Room 411, Wanchai |
Canada | ||
| William P. Douglas (Director) |
Director, Wentworth Insurance Company Ltd. Pine Commercial Centre #12 Pine Commercial Centre The Pine, St. Michael |
Barbados |
ANNEX I
DIRECTORS AND EXECUTIVE OFFICERS OF
THE SIXTY THREE FOUNDATION
The following table sets forth certain information with respect to the directors and executive officers of The Sixty Three Foundation.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Anthony F. Griffiths (Director) |
Independent Business Consultant, Toronto, Ontario, Canada |
Canada | ||
| Eric P. Salsberg (Director) |
Vice President, Corporate Affairs and Corporate Secretary, Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 |
Canada | ||
| V. Prem Watsa (Director) |
Chairman and Chief Executive Officer, Fairfax Financial Holdings Limited 95 Wellington Street West, Suite 800 Toronto, Ontario M5J 2N7 |
Canada |
ANNEX J
DIRECTORS AND EXECUTIVE OFFICERS OF
FAIRFAX (US) INC.
The following table sets forth certain information with respect to the directors and executive officers of Fairfax (US) Inc.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Eric P. Salsberg (Chairman, Vice President and Director) |
Vice President, Corporate Affairs and Corporate Secretary, Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 |
Canada | ||
| Melody A. Spencer (Vice President, Treasurer and Director) |
Vice President, Treasurer and Director, Fairfax (US) Inc. 2850 Lake Vista Drive, Ste. 150 Lewisville, Texas 75067 |
United States | ||
| Sonja Lundy (Director, President, Chief Executive Officer and Secretary) |
Director, President, Chief Executive Officer and Secretary, Fairfax (US) Inc. 2850 Lake Vista Drive, Ste. 150 Lewisville, Texas 75067 |
United States |
ANNEX K
DIRECTORS AND EXECUTIVE OFFICERS OF
ODYSSEY US HOLDINGS INC.
The following table sets forth certain information with respect to the directors and executive officers of Odyssey US Holdings Inc.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Brian D. Young (Chairman of the Board of Directors, President and Chief Executive Officer) |
President, Chief Executive Officer, and Director, Odyssey Group Holdings, Inc. 300 First Stamford Place Stamford, Connecticut 06902 |
United States | ||
| Elizabeth A. Sander (Executive Vice President, Corporate Secretary, and Director) |
Executive Vice President and Chief Actuary, Odyssey Group Holdings, Inc. 300 First Stamford Place Stamford, Connecticut 06902 |
United States | ||
| Jan Christiansen (Executive Vice President, Chief Financial Officer, Controller and Director) |
Executive Vice President and Chief Financial Officer, Odyssey Group Holdings, Inc. 300 First Stamford Place Stamford, Connecticut 06902 |
Denmark |
ANNEX L
DIRECTORS AND EXECUTIVE OFFICERS OF
ODYSSEY GROUP HOLDINGS, INC.
The following table sets forth certain information with respect to the directors and executive officers of Odyssey Group Holdings, Inc.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Andrew A. Barnard (Chairman of the Board) |
President and Chief Operating Officer, Fairfax Insurance Group 100 William Street, 5th Floor New York, New York 10038 |
United States | ||
| Brandon W. Sweitzer (Director) |
Dean, Maurice R. Greenberg School of Risk Management, Insurance and Actuarial Science, St. John’s University 101 Murray Street, Suite 438 New York, New York 10007-2165 |
United States | ||
| Brian D. Young (President, Chief Executive Officer and Director) |
President, Chief Executive Officer, and Director, Odyssey Group Holdings, Inc. 300 First Stamford Place Stamford, Connecticut 06902 |
United States | ||
| Elizabeth A. Sander (Executive Vice President and Chief Actuary) |
Executive Vice President and Chief Actuary, Odyssey Group Holdings, Inc. 300 First Stamford Place Stamford, Connecticut 06902 |
United States | ||
| Jan Christiansen (Executive Vice President and Chief Financial Officer) |
Executive Vice President and Chief Financial Officer, Odyssey Group Holdings, Inc. 300 First Stamford Place Stamford, Connecticut 06902 |
Denmark | ||
| Jennifer Allen (Director) |
Vice President and Chief Financial Officer, Fairfax Financial Holdings Limited 95 Wellington Street West, Suite 800 Toronto, Ontario M5J 2N7 |
Canada | ||
| Peter Clarke (Director) |
President and Chief Operating Officer, Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 |
Canada | ||
| Peter H. Lovell (Executive Vice President, General Counsel and Corporate Secretary) |
Executive Vice President, General Counsel and Corporate Secretary, Odyssey Group Holdings, Inc. 300 First Stamford Place Stamford, Connecticut 06902 |
United States |
ANNEX M
DIRECTORS AND EXECUTIVE OFFICERS OF
ODYSSEY REINSURANCE COMPANY
The following table sets forth certain information with respect to the directors and executive officers of Odyssey Reinsurance Company.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Alane R. Carey (Executive Vice President) |
Executive Vice President and Global Marketing Director, Odyssey Reinsurance Company 300 First Stamford Place Stamford, Connecticut 06902 |
United States | ||
| Brian D. Quinn (Executive Vice President) |
Executive Vice President, Odyssey Reinsurance Company 300 First Stamford Place, Stamford, Connecticut 06902 |
United States | ||
| Brian D. Young (Chairman, President and Chief Executive Officer) |
President, Chief Executive Officer, and Director, Odyssey Group Holdings, Inc. 300 First Stamford Place Stamford, Connecticut 06902 |
United States | ||
| Carl A. Overy (Executive Vice President) |
Chief Executive Officer, London Market Division, Newline Underwriting Management Limited 1 Fen Court, London, England, EC3M 5BN |
United Kingdom | ||
| Elizabeth A. Sander (Executive Vice President, Chief Actuary and Director) |
Executive Vice President and Chief Actuary, Odyssey Group Holdings, Inc. 300 First Stamford Place Stamford, Connecticut 06902 |
United States | ||
| Isabelle Dubots-Lafitte (Executive Vice President) |
Chief Executive Officer, EMEA, Odyssey Reinsurance Company 14 Rue Du 4 Septembre 75002 Paris France |
United States | ||
| Jan Christiansen (Executive Vice President and Director) |
Executive Vice President and Chief Financial Officer, Odyssey Group Holdings, Inc. 300 First Stamford Place Stamford, Connecticut 06902 |
Denmark | ||
| Joseph A. Guardo (Executive Vice President) |
Executive Vice President, Odyssey Reinsurance Company 300 First Stamford Place Stamford, Connecticut 06902 |
United States | ||
| Lucien Pietropoli (Executive Vice President) |
Chief Executive Officer, Asia Pacific, Odyssey Reinsurance Company 1 Finlayson Green #17-00 Singapore 049246 |
France |
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Peter H. Lovell (Executive Vice President, General Counsel and Corporate Secretary) |
Executive Vice President, General Counsel and Corporate Secretary, Odyssey Group Holdings, Inc. 300 First Stamford Place Stamford, Connecticut 06902 |
United States | ||
| Philippe Mallier (Executive Vice President) |
Chief Executive Officer, Latin America Odyssey Reinsurance Company 300 First Stamford Place Stamford, Connecticut 06902 |
France |
ANNEX N
DIRECTORS AND EXECUTIVE OFFICERS OF
NEWLINE HOLDINGS UK LIMITED
The following table sets forth certain information with respect to the directors and executive officers of Newline Holdings UK Limited.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
|
Henry J. L. Withinshaw
|
Chief Operating Officer, Newline Underwriting Management Limited 1 Fen Court, London, England, EC3M 5BN |
United Kingdom | ||
| Alane R. Carey (Non-Executive Director and Chairman of the Board of Directors) |
Executive Vice President and Global Marketing Director, Odyssey Reinsurance Company 300 First Stamford Place Stamford, Connecticut 06902 |
United States | ||
| Jan Christiansen (Non-Executive Director) |
Executive Vice President and Chief Financial Officer, Odyssey Group Holdings, Inc. 300 First Stamford Place Stamford, Connecticut 06902 |
Denmark | ||
|
Sonny Kapur (Director) |
Chief Financial Officer, Newline Underwriting Management Limited 1 Fen Court, London, England, EC3M 5BN |
United Kingdom | ||
| Robert B. Kastner (Director) |
Head of Claims, Newline Underwriting Management Limited 1 Fen Court, London, England, EC3M 5BN |
United Kingdom |
ANNEX O
DIRECTORS AND EXECUTIVE OFFICERS OF
NEWLINE CORPORATE NAME LIMITED
The following table sets forth certain information with respect to the directors and executive officers of Newline Corporate Name Limited.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Alane R. Carey (Non-Executive Director and Chairman of the Board of Directors) |
Executive Vice President and Global Marketing Director, Odyssey Reinsurance Company 300 First Stamford Place Stamford, Connecticut 06902 |
United States | ||
| Henry J. L. Withinshaw (Director and Company Secretary) |
Chief Operating Officer, Newline Underwriting Management Limited 1 Fen Court, London, England, EC3M 5BN |
United Kingdom | ||
| Jan Christiansen (Non-Executive Director) |
Executive Vice President and Chief Financial Officer, Odyssey Group Holdings, Inc. 300 First Stamford Place Stamford, Connecticut 06902 |
Denmark | ||
|
Sonny Kapur (Director) |
Chief Financial Officer, Newline Underwriting Management Limited 1 Fen Court, London, England, EC3M 5BN |
United Kingdom |
ANNEX P
DIRECTORS AND EXECUTIVE OFFICERS OF
ODYSSEY REINSURANCE (BARBADOS) LTD.
The following table sets forth certain information with respect to the directors and executive officers of Odyssey Reinsurance (Barbados) Ltd.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Janice Burke (Director) |
Managing Director, Wentworth Insurance Company Ltd. Pine Commercial Centre #12 Pine Commercial Centre The Pine, St. Michael |
United States | ||
| Jean Cloutier (Chairman and Director) |
Vice President, International Operations, Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 |
Canada | ||
ANNEX Q
DIRECTORS AND EXECUTIVE OFFICERS OF
HUDSON INSURANCE COMPANY
The following table sets forth certain information with respect to the directors and executive officers of Hudson Insurance Company.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Alane R. Carey (Executive Vice President) |
Executive Vice President and Global Marketing Director, Odyssey Reinsurance Company 300 First Stamford Place Stamford, Connecticut 06902 |
United States | ||
| Christopher L. Gallagher (Chief Executive Officer, President, and Chairman of the Board of Directors) |
Chief Executive Officer, President, and Chairman of the Board of Directors, Hudson Insurance Company 100 William St., 5th Floor New York, New York 10038 |
United States | ||
| Elizabeth A. Sander (Executive Vice President, Chief Actuary and Director) |
Executive Vice President and Chief Actuary, Odyssey Group Holdings, Inc. 300 First Stamford Place Stamford, Connecticut 06902 |
United States | ||
| Jan Christiansen (Director and Executive Vice President) |
Executive Vice President and Chief Financial Officer, Odyssey Group Holdings, Inc. 300 First Stamford Place Stamford, Connecticut 06902 |
Denmark | ||
| Michael P. Cifone (Senior Vice President, Senior Operations Officer and Director) |
Senior Vice President, Senior Operations Officer and Director, Hudson Insurance Company 100 William St., 5th Floor New York, New York 10038 |
United States | ||
| Rory A. Rose (Senior Vice President and Chief Financial Officer) |
Senior Vice President and Chief Financial Officer, Hudson Insurance Company 100 William St., 5th Floor New York, New York 10038 |
United States | ||
| Margaret M.C. Killeen (Senior Vice President, Chief Claims Officer, and Director) |
Senior Vice President and Chief Claims Officer, Hudson Insurance Company 100 William St., 5th Floor New York, New York 10038 |
United States | ||
| Leslie Shore (Senior Vice President, Chief Actuary and Director) |
Senior Vice President and Chief Actuary, Hudson Insurance Company 100 William St., 5th Floor New York, New York 10038 |
United States | ||
|
Jean-Raymond Kingsley (Director) |
Senior Vice President, Chief Agent (Canada) 2001 Blvd. Robert Bourassa, Suite 1700 Montreal, Quebec H3A 2A6 |
Canada |
ANNEX R
DIRECTORS AND EXECUTIVE OFFICERS OF
HILLTOP SPECIALTY INSURANCE COMPANY
The following table sets forth certain information with respect to the directors and executive officers of Hilltop Specialty Insurance Company.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Alane R. Carey (Executive Vice President) |
Executive Vice President and Global Marketing Director, Odyssey Reinsurance Company 300 First Stamford Place Stamford, Connecticut 06902 |
United States | ||
| Christopher L. Gallagher (Chief Executive Officer, President, and Chairman of the Board of Directors) |
Chief Executive Officer, President, and Chairman of the Board of Directors, Hudson Insurance Company 100 William St., 5th Floor New York, New York 10038 |
United States | ||
| Elizabeth A. Sander (Executive Vice President, Chief Actuary and Director) |
Executive Vice President and Chief Actuary, Odyssey Group Holdings, Inc. 300 First Stamford Place Stamford, Connecticut 06902 |
United States | ||
| Jan Christiansen (Director and Executive Vice President) |
Executive Vice President and Chief Financial Officer, Odyssey Group Holdings, Inc. 300 First Stamford Place Stamford, Connecticut 06902 |
Denmark | ||
| Peter H. Lovell (Executive Vice President and Director) |
Executive Vice President, General Counsel and Corporate Secretary, Odyssey Group Holdings, Inc. 300 First Stamford Place Stamford, Connecticut 06902 |
United States | ||
| Michael P. Cifone (Senior Vice President and Director) |
Senior Vice President, Senior Operations Officer and Director, Hudson Insurance Company 100 William St., 5th Floor New York, New York 10038 |
United States | ||
| Margaret M.C. Killeen (Senior Vice President and Director) |
Senior Vice President and Chief Claims Officer, Hudson Insurance Company 100 William St., 5th Floor New York, New York 10038 |
United States | ||
| Leslie Shore (Senior Vice President and Director) |
Senior Vice President and Chief Actuary, Hudson Insurance Company 100 William St., 5th Floor New York, New York 10038 |
United States | ||
|
Rory A. Rose (Director) |
Senior Vice President and Chief Financial Officer Hudson Insurance Company 100 William St., 5th Floor |
United States |
ANNEX S
DIRECTORS AND EXECUTIVE OFFICERS OF
HUDSON EXCESS INSURANCE COMPANY
The following table sets forth certain information with respect to the directors and executive officers of Hudson Excess Company.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Christopher L. Gallagher (Chief Executive Officer, President, and Chairman of the Board of Directors) |
Chief Executive Officer, President, and Chairman of the Board of Directors, Hudson Insurance Company 100 William St., 5th Floor New York, New York 10038 |
United States | ||
| Elizabeth A. Sander (Executive Vice President, Chief Actuary and Director) |
Executive Vice President and Chief Actuary, Odyssey Group Holdings, Inc. 300 First Stamford Place Stamford, Connecticut 06902 |
United States | ||
| Jan Christiansen (Director and Executive Vice President) |
Executive Vice President and Chief Financial Officer, Odyssey Group Holdings, Inc. 300 First Stamford Place Stamford, Connecticut 06902 |
Denmark |
ANNEX T
DIRECTORS AND EXECUTIVE OFFICERS OF
1102952 B.C. UNLIMITED LIABILITY COMPANY
The following table sets forth certain information with respect to the directors and executive officers of 1102952 B.C. Unlimited Liability Company.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| John Varnell (Director) |
Vice President, Corporate Development, Fairfax Financial Holdings Limited 95 Wellington Street West, Suite 800 Toronto, Ontario M5J 2N7 |
Canada |
ANNEX U
DIRECTORS AND EXECUTIVE OFFICERS OF
ALLIED WORLD ASSURANCE COMPANY HOLDINGS, LTD
The following table sets forth certain information with respect to the directors and executive officers of Allied World Assurance Company Holdings, Ltd.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Graham Collis (Director) |
Retired | Bermuda | ||
| Jean Cloutier (Director) |
Vice President, International Operations, Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 |
Canada | ||
| Ken Miner (Director) |
EVP & Global Head, Capital Markets, OMERS Administration Corporation Royal Bank Plaza, North Tower 200 Bay Street, Suite 2300, PO Box 92 Toronto, Ontario M5J 2J2 |
Canada | ||
| Louis Iglesias (Chairman of the Board of Directors, President & Chief Executive Officer) |
Chairman of the Board of Directors, President & Chief Executive Officer, Allied World Assurance Company Holdings, Ltd 199 Water Street, 26th Floor New York, NY 10038 |
United States | ||
| Michael McCrimmon (Director and Vice Chairman) |
Director and Vice Chairman, Allied World Assurance Company Holdings I, Ltd 27 Richmond Road Pembroke HM 08 Bermuda |
Canada | ||
| Scott Hunter (Director) |
Retired | Bermuda |
ANNEX V
DIRECTORS AND EXECUTIVE OFFICERS OF
ALLIED WORLD ASSURANCE COMPANY HOLDINGS I, LTD
The following table sets forth certain information with respect to the directors and executive officers of Allied World Assurance Company Holdings I, Ltd.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Colm Singleton (Head of Bermuda Office; Executive Vice President, Head of Bermuda and Global Markets Claims Group) |
Head of Bermuda Office; Executive Vice President, Head of Bermuda and Global Markets Claims Group, Allied World Assurance Company Holdings I, Ltd 27 Richmond Road Pembroke HM 08 Bermuda |
Bermuda | ||
| Louis Iglesias (Director) |
Chairman of the Board of Directors, President & Chief Executive Officer, Allied World Assurance Company Holdings, Ltd 199 Water Street, 26th Floor New York, NY 10038 |
United States | ||
| Michael McCrimmon (Director and Vice Chairman) |
Director and Vice Chairman, Allied World Assurance Company Holdings I, Ltd 27 Richmond Road Pembroke HM 08 Bermuda |
Canada | ||
| Wesley Dupont (Director) |
Chief Operating Officer, Allied World Assurance Company Holdings, Ltd 199 Water Street, 26th Floor New York, NY 10038 |
United States |
ANNEX W
DIRECTORS AND EXECUTIVE OFFICERS OF
ALLIED WORLD ASSURANCE COMPANY, LTD
The following table sets forth certain information with respect to the directors and executive officers of Allied World Assurance Company, Ltd.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Colm Singleton (Head of Bermuda Office; Executive Vice President, Head of Bermuda and Global Markets Claims Group) |
Head of Bermuda Office; Executive Vice President, Head of Bermuda and Global Markets Claims Group, Allied World Assurance Company Holdings I, Ltd 27 Richmond Road Pembroke HM 08 Bermuda |
Bermuda | ||
| John Bender (Director) |
CEO, Global Reinsurance, Allied World Assurance Company Holdings, Ltd 199 Water Street, 26th Floor New York, NY 10038 |
United States | ||
| Louis Iglesias (Director) |
Chairman of the Board of Directors, President & Chief Executive Officer, Allied World Assurance Company Holdings, Ltd 199 Water Street, 26th Floor New York, NY 10038 |
United States | ||
| Michael McCrimmon (Director and Vice Chairman) |
Director and Vice Chairman, Allied World Assurance Company Holdings I, Ltd 27 Richmond Road Pembroke HM 08 Bermuda |
Canada | ||
| Wesley Dupont (Director) |
Chief Operating Officer, Allied World Assurance Company Holdings, Ltd 199 Water Street, 26th Floor New York, NY 10038 |
United States |
ANNEX X
DIRECTORS AND EXECUTIVE OFFICERS OF
ALLIED WORLD ASSURANCE HOLDINGS (IRELAND) LTD
The following table sets forth certain information with respect to the directors and executive officers of Allied World Assurance Holdings (Ireland) Ltd.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Jim O’Mahoney (Director) |
Retired | Ireland | ||
| Lee Dwyer (Director and President) |
Director and President, Allied World Assurance Holdings (Ireland) Ltd 3rd Floor, Georges Quay Plaza Georges Quay Dublin 2 |
United Kingdom | ||
| Sean Hehir (Director) |
Retired | Ireland | ||
| Wesley Dupont (Director) |
Chief Operating Officer, Allied World Assurance Company Holdings, Ltd 199 Water Street, 26th Floor New York, NY 10038 |
United States |
ANNEX Y
DIRECTORS AND EXECUTIVE OFFICERS OF
ALLIED WORLD ASSURANCE HOLDINGS (U.S.) INC.
The following table sets forth certain information with respect to the directors and executive officers of Allied World Assurance Holdings (U.S.) Inc.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| John Bender (Director and CEO, Global Reinsurance) |
CEO, Global Reinsurance, Allied World Assurance Company Holdings, Ltd 199 Water Street, 26th Floor New York, NY 10038 |
United States | ||
| Louis Iglesias (Director and President & Chief Executive Officer) |
Chairman of the Board of Directors, President & Chief Executive Officer, Allied World Assurance Company Holdings, Ltd 199 Water Street, 26th Floor New York, NY 10038 |
United States | ||
| Wesley Dupont (Director and Chief Operating Officer) |
Chief Operating Officer, Allied World Assurance Company Holdings, Ltd 199 Water Street, 26th Floor New York, NY 10038 |
United States |
ANNEX Z
DIRECTORS AND EXECUTIVE OFFICERS OF
ALLIED WORLD INSURANCE COMPANY
The following table sets forth certain information with respect to the directors and executive officers of Allied World Insurance Company.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Christian Gravier (President, North America Professional Lines) |
President, North America Professional Lines, Allied World Insurance Company 199 Water Street, 26th Floor New York, NY 10038 |
United States | ||
| John Bender (Director) |
CEO, Global Reinsurance, Allied World Assurance Company Holdings, Ltd 199 Water Street, 26th Floor New York, NY 10038 |
United States | ||
| Joseph Cellura (President, North America Casualty) |
President, North America Casualty, Allied World Insurance Company 199 Water Street, 26th Floor New York, NY 10038 |
United States | ||
| Kevin Marine (President & Chief Underwriting Officer, Global Reinsurance) |
President & Chief Underwriting Officer, Global Reinsurance, Allied World Insurance Company 199 Water Street, 26th Floor New York, NY 10038 |
United States | ||
| Louis Iglesias (Director) |
Chairman of the Board of Directors, President & Chief Executive Officer, Allied World Assurance Company Holdings, Ltd 199 Water Street, 26th Floor New York, NY 10038 |
United States | ||
| Robert Bowden (Executive Vice President, Global Insurance) |
Executive Vice President, Global Insurance, Allied World Insurance Company 550 Hope Street, Suite 1825 Los Angeles, CA 90071 |
United States | ||
| Wesley Dupont (Director) |
Chief Operating Officer, Allied World Assurance Company Holdings, Ltd 199 Water Street, 26th Floor New York, NY 10038 |
United States |
ANNEX AA
DIRECTORS AND EXECUTIVE OFFICERS OF
AW UNDERWRITERS INC.
The following table sets forth certain information with respect to the directors and executive officers of AW Underwriters Inc.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Christian Gravier (President, North America Professional Lines) |
President, North America Professional Lines, Allied World Insurance Company 199 Water Street, 26th Floor New York, NY 10038 |
United States | ||
| John Bender (Director) |
CEO, Global Reinsurance, Allied World Assurance Company Holdings, Ltd 199 Water Street, 26th Floor New York, NY 10038 |
United States | ||
| Joseph Cellura (President, North America Casualty) |
President, North America Casualty, Allied World Insurance Company 199 Water Street, 26th Floor New York, NY 10038 |
United States | ||
| Louis Iglesias (Director) |
Chairman of the Board of Directors, President & Chief Executive Officer, Allied World Assurance Company Holdings, Ltd 199 Water Street, 26th Floor New York, NY 10038 |
United States | ||
| Robert Bowden (Executive Vice President, Global Insurance) |
Executive Vice President, Global Insurance, Allied World Insurance Company 550 Hope Street, Suite 1825 Los Angeles, CA 90071 |
United States | ||
| Wesley Dupont (Director) |
Chief Operating Officer, Allied World Assurance Company Holdings, Ltd 199 Water Street, 26th Floor New York, NY 10038 |
United States |
ANNEX BB
DIRECTORS AND EXECUTIVE OFFICERS OF
ALLIED WORLD SPECIALTY INSURANCE COMPANY
The following table sets forth certain information with respect to the directors and executive officers of Allied World Specialty Insurance Company.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Christian Gravier (President, North America Professional Lines) |
President, North America Professional Lines, Allied World Insurance Company 199 Water Street, 26th Floor New York, NY 10038 |
United States | ||
| John Bender (Director) |
CEO, Global Reinsurance, Allied World Assurance Company Holdings, Ltd 199 Water Street, 26th Floor New York, NY 10038 |
United States | ||
| Joseph Cellura (President, North America Casualty) |
President, North America Casualty, Allied World Insurance Company 199 Water Street, 26th Floor New York, NY 10038 |
United States | ||
| Louis Iglesias (Director) |
Chairman of the Board of Directors, President & Chief Executive Officer, Allied World Assurance Company Holdings, Ltd 199 Water Street, 26th Floor New York, NY 10038 |
United States | ||
| Robert Bowden (Executive Vice President, Global Insurance) |
Executive Vice President, Global Insurance, Allied World Insurance Company 550 Hope Street, Suite 1825 Los Angeles, CA 90071 |
United States | ||
| Wesley Dupont (Director) |
Chief Operating Officer, Allied World Assurance Company Holdings, Ltd 199 Water Street, 26th Floor New York, NY 10038 |
United States |
ANNEX CC
DIRECTORS AND EXECUTIVE OFFICERS OF
ALLIED WORLD SURPLUS LINES INSURANCE COMPANY
The following table sets forth certain information with respect to the directors and executive officers of Allied World Surplus Lines Insurance Company.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Christian Gravier (President, North America Professional Lines) |
President, North America Professional Lines, Allied World Insurance Company 199 Water Street, 26th Floor New York, NY 10038 |
United States | ||
| John Bender (Director) |
CEO, Global Reinsurance, Allied World Assurance Company Holdings, Ltd 199 Water Street, 26th Floor New York, NY 10038 |
United States | ||
| Joseph Cellura (President, North America Casualty) |
President, North America Casualty, Allied World Insurance Company 199 Water Street, 26th Floor New York, NY 10038 |
United States | ||
| Louis Iglesias (Director) |
Chairman of the Board of Directors, President & Chief Executive Officer, Allied World Assurance Company Holdings, Ltd 199 Water Street, 26th Floor New York, NY 10038 |
United States | ||
| Robert Bowden (Executive Vice President, Global Insurance) |
Executive Vice President, Global Insurance, Allied World Insurance Company 550 Hope Street, Suite 1825 Los Angeles, CA 90071 |
United States | ||
| Wesley Dupont (Director) |
Chief Operating Officer, Allied World Assurance Company Holdings, Ltd 199 Water Street, 26th Floor New York, NY 10038 |
United States |
ANNEX DD
DIRECTORS AND EXECUTIVE OFFICERS OF
ALLIED WORLD ASSURANCE COMPANY, AG
The following table sets forth certain information with respect to the directors and executive officers of Allied World Assurance Company, AG.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| John Bender (Director) |
CEO, Global Reinsurance, Allied World Assurance Company Holdings, Ltd 199 Water Street, 26th Floor New York, NY 10038 |
United States | ||
| Marie-Laure Queneuder (Managing Director & Chief Underwriting Officer) |
Managing Director & Chief Underwriting Officer, Allied World Assurance Company, AG Park Tower 15th Floor Gubelstrasse 24 6300 Zug, Switzerland |
Switzerland | ||
| Martin Frey (Director) |
Partner, Baker & McKenzie Zurich Holbeinstrasse 30 8034 Zurich Switzerland |
Switzerland | ||
| Wesley Dupont (Director) |
Chief Operating Officer, Allied World Assurance Company Holdings, Ltd 199 Water Street, 26th Floor New York, NY 10038 |
United States |
ANNEX EE
DIRECTORS AND EXECUTIVE OFFICERS OF
ALLIED WORLD ASSURANCE COMPANY (EUROPE) DAC
The following table sets forth certain information with respect to the directors and executive officers of Allied World Assurance Company (Europe) dac.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Darren Jacobs (Chief Underwriting Officer, Global Markets Division) |
Senior Vice President, Chief Underwriting Officer, Allied World Managing Agency Limited 19th Floor, 20 Fenchurch Street London EC3M 3BY United Kingdom |
United Kingdom | ||
| Jim O’Mahoney (Director) |
Retired | Ireland | ||
| Lee Dwyer (Director and Managing Director) |
Director and President, Allied World Assurance Holdings (Ireland) Ltd. 3rd Floor, Georges Quay Plaza Georges Quay Dublin 2 Ireland |
United Kingdom | ||
| Michael Stalley (Director) |
Retired | United Kingdom | ||
| Neil Macmillan (Director) |
Retired | United Kingdom | ||
| Peter Ford (Executive Vice President, Head of European Insurance Division) |
Executive Vice President, Head of European Insurance Division, Allied World Managing Agency Limited 19th Floor, 20 Fenchurch Street London EC3M 3BY United Kingdom |
United States | ||
| Sean Hehir (Director) |
Retired | Ireland |
ANNEX FF
DIRECTORS AND EXECUTIVE OFFICERS OF
ALLIED WORLD ASSURANCE COMPANY (U.S.) INC.
The following table sets forth certain information with respect to the directors and executive officers of Allied World Assurance Company (U.S.) Inc.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Christian Gravier (President, North America Professional Lines) |
President, North America Professional Lines, Allied World Insurance Company 199 Water Street, 26th Floor New York, NY 10038 |
United States | ||
| John Bender (Director) |
CEO, Global Reinsurance, Allied World Assurance Company Holdings, Ltd 199 Water Street, 26th Floor New York, NY 10038 |
United States | ||
| Joseph Cellura (President, North America Casualty) |
President, North America Casualty, Allied World Insurance Company 199 Water Street, 26th Floor New York, NY 10038 |
United States | ||
| Louis Iglesias (Director) |
Chairman of the Board of Directors, President & Chief Executive Officer, Allied World Assurance Company Holdings, Ltd 199 Water Street, 26th Floor New York, NY 10038 |
United States | ||
| Robert Bowden (Executive Vice President, Global Insurance) |
Executive Vice President, Global Insurance, Allied World Insurance Company 550 Hope Street, Suite 1825 Los Angeles, CA 90071 |
United States | ||
| Wesley Dupont (Director) |
Chief Operating Officer, Allied World Assurance Company Holdings, Ltd 199 Water Street, 26th Floor New York, NY 10038 |
United States |
ANNEX GG
DIRECTORS AND EXECUTIVE OFFICERS OF
CRUM & FORSTER HOLDINGS CORP.
The following table sets forth certain information with respect to the directors and executive officers of Crum & Forster Holdings Corp.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Alejandro Morales (Director) |
Senior Vice President, United States Fire Insurance Company 305 Madison Avenue Morristown, NJ 07962 |
United States | ||
| Andrew A. Barnard (Director) |
President and Chief Operating Officer, Fairfax Insurance Group 100 William Street, 5th Floor New York, New York 10038 |
United States | ||
| Arleen A. Paladino (Executive Vice President, Chief Financial Officer, Treasurer and Director) |
Executive Vice President, Chief Financial Officer and Treasurer, Crum & Forster Holdings Corp. 305 Madison Avenue Morristown, NJ 07962 |
United States | ||
| Jennifer Allen (Director) |
Vice President and Chief Financial Officer, Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 |
Canada | ||
| Marc J. Adee (President, Chief Executive Officer, Chairman and Director) |
President and Chief Executive Officer, Crum & Forster Holdings Corp. and various other insurance subsidiaries, 305 Madison Avenue Morristown, NJ 07962 |
United States | ||
| Michael P. McTigue (Secretary) |
Senior Vice President, General Counsel and Secretary, United States Fire Insurance Company 305 Madison Avenue Morristown, NJ 07962 |
United States | ||
| Olivier Quesnel (Director) |
Vice President and Chief Actuary, Fairfax Financial Holdings Limited, 95 Wellington Street West, Suite 800 Toronto ON M5J 2N7 |
Canada | ||
| Peter Clarke (Director) |
President and Chief Operating Officer, Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 |
Canada |
ANNEX HH
DIRECTORS AND EXECUTIVE OFFICERS OF
UNITED STATES FIRE INSURANCE COMPANY
The following table sets forth certain information with respect to the directors and executive officers of United States Fire Insurance Company.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Alejandro Morales (Senior Vice President and Director) |
Senior Vice President, United States Fire Insurance Company 305 Madison Avenue Morristown, NJ 07962 |
United States | ||
| Arleen A. Paladino (Senior Vice President, Chief Financial Officer and Director) |
Executive Vice President, Chief Financial Officer and Treasurer, Crum & Forster Holdings Corp. 305 Madison Avenue Morristown, NJ 07962 |
United States | ||
| Carmine Scaglione (Senior Vice President and Controller) |
Senior Vice President and Controller, United States Fire Insurance Company 305 Madison Avenue Morristown, NJ 07962 |
United States | ||
| George R. French (Treasurer and Vice President) |
Treasurer and Vice President, United States Fire Insurance Company 305 Madison Avenue Morristown, NJ 07962 |
United States | ||
| Marc J. Adee (President, Chief Executive Officer, Chairman and Director) |
President,Chief Executive Officer and Chairman Crum & Forster Holdings Corp. and various other insurance subsidiaries, 305 Madison Avenue Morristown, NJ 07962 |
United States | ||
| Michael P. McTigue (Senior Vice President, General Counsel and Secretary) |
Senior Vice President, General Counsel and Secretary, United States Fire Insurance Company 305 Madison Avenue Morristown, NJ 07962 |
United States |
ANNEX II
DIRECTORS AND EXECUTIVE OFFICERS OF
ZENITH NATIONAL INSURANCE CORP.
The following table sets forth certain information with respect to the directors and executive officers of Zenith National Insurance Corp.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Andrew A. Barnard (Director) |
President and Chief Operating Officer, Fairfax Insurance Group 100 William Street, 5th Floor New York, New York 10038 |
United States | ||
| Antonio Gaitan (Executive Vice President, Chief Financial Officer and Treasurer) |
Executive Vice President, Chief Financial Officer and Treasurer, Zenith Insurance Company 21255 Califa St. Woodland Hills, California 91367 |
United States | ||
| Chad J. Helin (Executive Vice President, General Counsel, Secretary and Director) |
Executive Vice President, General Counsel and Director, Zenith Insurance Company 21255 Califa St. Woodland Hills, California 91367 |
United States | ||
| Davidson M. Pattiz (President and Chief Operating Officer) |
President and Chief Operating Officer, Zenith Insurance Company 21255 Califa St. Woodland Hills, California 91367 |
United States | ||
| Jack D. Miller (Director) |
Director, Zenith Insurance Company 21255 Califa St. Woodland Hills, California 91367 |
United States | ||
| Jennifer Allen (Director) |
Vice President and Chief Financial Officer, Fairfax Financial Holdings Limited 95 Wellington Street West, Suite 800 Toronto, Ontario M5J 2N7 |
Canada | ||
| Kari L. Van Gundy (Chairperson, Chief Executive Officer and Director) |
Chairperson, Chief Executive Officer and Director, Zenith Insurance Company 21255 Califa St. Woodland Hills, California 91367 |
United States | ||
| Olivier Quesnel (Director) |
Vice President and Chief Actuary, Fairfax Financial Holdings Limited, 95 Wellington Street West, Suite 800 Toronto ON M5J 2N7 |
Canada |
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Peter Clarke (Director) |
President and Chief Operating Officer, Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 |
Canada |
ANNEX JJ
DIRECTORS AND EXECUTIVE OFFICERS OF
ZENITH INSURANCE COMPANY
The following table sets forth certain information with respect to the directors and executive officers of Zenith Insurance Company.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Antonio Gaitan (Executive Vice President, Chief Financial Officer and Treasurer) |
Executive Vice President, Chief Financial Officer and Treasurer, Zenith Insurance Company 21255 Califa St. Woodland Hills, California 91367 |
United States | ||
| Chad J. Helin (Executive Vice President, General Counsel and Director) |
Executive Vice President, General Counsel and Director, Zenith Insurance Company 21255 Califa St. Woodland Hills, California 91367 |
United States | ||
| Davidson M. Pattiz (President and Chief Operating Officer) |
President and Chief Operating Officer, Zenith Insurance Company 21255 Califa St. Woodland Hills, California 91367 |
United States | ||
| Eden M. Feder (Executive Vice President) |
Executive Vice President, Zenith Insurance Company 21255 Califa St. Woodland Hills, California 91367 |
United States | ||
| Jack D. Miller (Director) |
Director, Zenith Insurance Company 21255 Califa St. Woodland Hills, California 91367 |
United States | ||
| Jason T. Clarke (Executive Vice President and Chief Actuary) |
Executive Vice President and Chief Actuary, Zenith Insurance Company 21255 Califa St. Woodland Hills, California 91367 |
United States | ||
| Kari L. Van Gundy (Chief Executive Officer, Chairperson of the Board and Director) |
Chief Executive Officer, Chairperson of the Board and Director, Zenith Insurance Company 21255 Califa St. Woodland Hills, California 91367 |
United States | ||
| Michael F. Cunningham (Executive Vice President) |
Executive Vice President, Zenith Insurance Company 21255 Califa St. Woodland Hills, California 91367 |
United States |
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Paul R. Ramont (Executive Vice President) |
Executive Vice President, Zenith Insurance Company 21255 Califa St. Woodland Hills, California 91367 |
United States |
ANNEX KK
DIRECTORS AND EXECUTIVE OFFICERS OF
BRIT LIMITED
The following table sets forth certain information with respect to the directors and executive officers of Brit Limited.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Andrea Welsch (Director) |
Independent Non-Executive Director, Brit Limited The Leadenhall Building, 122 Leadenhall Street London EC3V 4AB |
United Kingdom | ||
| Andrew A. Barnard (Director) |
President and Chief Operating Officer, Fairfax Insurance Group 100 William Street, 5th Floor New York, New York 10038 |
United States | ||
| Gavin Wilkinson (Director) |
Group Chief Financial Officer, Brit Limited The Leadenhall Building, 122 Leadenhall Street London EC3V 4AB |
United Kingdom | ||
| Gordon Campbell (Director) |
Senior Independent Non-Executive Director, Brit Limited The Leadenhall Building, 122 Leadenhall Street London EC3V 4AB |
Canada | ||
| Ken Miner (Independent Non-Executive Director) |
EVP & Global Head, Capital Markets, OMERS Administration Corporation Royal Bank Plaza, North Tower 200 Bay Street, Suite 2300, PO Box 92 Toronto, Ontario M5J 2J2 |
Canada | ||
| Mark Allan (Executive Director) |
Executive Director, Brit Limited and Ki CEO, Brit Limited The Leadenhall Building, 122 Leadenhall Street London EC3V 4AB |
United Kingdom | ||
| Matthew Wilson (Director) |
Director Brit Limited The Leadenhall Building, 122 Leadenhall Street London EC3V 4AB |
United Kingdom |
ANNEX LL
DIRECTORS AND EXECUTIVE OFFICERS OF
BRIT INSURANCE HOLDINGS LIMITED
The following table sets forth certain information with respect to the directors and executive officers of Brit Insurance Holdings Limited.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Antony Usher (Director) |
Group Financial Controller, Brit Insurance Holdings Limited The Leadenhall Building, 122 Leadenhall Street London EC3V 4AB |
United Kingdom | ||
| Christopher Denton (Director) |
Group Head of ILS and Capital Management and Chief Underwriting Officer, Brit Reinsurance (Bermuda) Limited Chesney House, The Waterfront, 96 Pitts Bay Road, |
United Kingdom | ||
| Gavin Wilkinson (Director) |
Group Chief Financial Officer, Brit Limited The Leadenhall Building, 122 Leadenhall Street London EC3V 4AB |
United Kingdom | ||
| Stuart Dawes (Director) |
Head of Group Financial Performance, Brit Limited The Leadenhall Building, 122 Leadenhall Street London EC3V 4AB |
United Kingdom |
ANNEX MM
DIRECTORS AND EXECUTIVE OFFICERS OF
BRIT REINSURANCE (BERMUDA) LIMITED
The following table sets forth certain information with respect to the directors and executive officers of Brit Reinsurance (Bermuda) Limited.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Alan Waring (Director) |
Independent Non-Executive Director, Brit Reinsurance (Bermuda) Limited Chesney House, The Waterfront, 96 Pitts Bay Road, |
Ireland | ||
| Christopher Denton (Director) |
Group Head of ILS and Capital Management and Chief Underwriting Officer, Brit Reinsurance (Bermuda) Limited Chesney House, The Waterfront, 96 Pitts Bay Road, |
United Kingdom | ||
| Gavin Wilkinson (Director) |
Group Chief Financial Officer, Brit Limited The Leadenhall Building, 122 Leadenhall Street London EC3V 4AB |
United Kingdom | ||
| Graham Pewter (Director) |
Independent Non-Executive Director, Brit Reinsurance (Bermuda) Limited Chesney House, The Waterfront, 96 Pitts Bay Road, |
United Kingdom | ||
| Jay Nichols (Director) |
Independent Non-Executive Director, Brit Reinsurance (Bermuda) Limited Chesney House, The Waterfront, 96 Pitts Bay Road, |
United States | ||
| Karl Grieves (Director) |
Finance and Operations Director, Brit Reinsurance (Bermuda) Limited Chesney House, The Waterfront, 96 Pitts Bay Road, |
United Kingdom |
ANNEX NN
DIRECTORS AND EXECUTIVE OFFICERS OF
BRIT UW LIMITED
The following table sets forth certain information with respect to the directors and executive officers of Brit UW Limited.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Antony Usher (Director) |
Group Financial Controller, Brit Insurance Holdings Limited The Leadenhall Building, 122 Leadenhall Street London EC3V 4AB |
United Kingdom | ||
| Gavin Wilkinson (Director) |
Group Chief Financial Officer, Brit Limited The Leadenhall Building, 122 Leadenhall Street London EC3V 4AB |
United Kingdom | ||
| Stuart Dawes (Director) |
Head of Group Financial Performance, Brit Limited The Leadenhall Building, 122 Leadenhall Street London EC3V 4AB |
United Kingdom | ||
| Brit Corporate Services Limited (Director) |
Corporate Director, The Leadenhall Building, |
England and Wales |
ANNEX OO
DIRECTORS AND EXECUTIVE OFFICERS OF
TIG INSURANCE COMPANY
The following table sets forth certain information with respect to the directors and executive officers of TIG Insurance Company.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Deborah A. Irving (Director, Executive Vice President, Chief Financial Officer and Treasurer) |
Executive Vice President, Chief Financial Officer and Treasurer, RiverStone Resources LLC 250 Commercial Street, Suite 5000 Manchester, New Hampshire 03101 |
Canada | ||
| Matthew W. Kunish (Director, Executive Vice President and Chief Actuary) |
Executive Vice President, Chief Actuary, RiverStone Resources LLC 250 Commercial Street, Suite 5000 Manchester, New Hampshire 03101 |
United Kingdom | ||
| Nicholas C. Bentley (Chairman, Chief Executive Officer, President and Director) |
Chairman, Chief Executive Officer, President and Director, RiverStone Resources LLC 250 Commercial Street, Suite 5000 Manchester, New Hampshire 03101 |
United Kingdom | ||
| Robert Sampson (Executive Vice President and Director) |
Executive Vice President, RiverStone Resources LLC 250 Commercial Street, Suite 5000 Manchester, New Hampshire 03101 |
United States |
ANNEX PP
DIRECTORS AND EXECUTIVE OFFICERS OF
CONNEMARA REINSURANCE COMPANY LTD.
The following table sets forth certain information with respect to the directors and executive officers of Connemara Reinsurance Company Ltd.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Alistair Dent (Director) |
Director, Wentworth Insurance Company Ltd. Pine Commercial Centre #12 Pine Commercial The Pine, St. Michael |
United Kingdom | ||
| Jean Cloutier (Director) |
Vice President, International Operations, Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario, M5J 2N7 |
Canada | ||
| Lisl Lewis (Director) |
Director, Wentworth Insurance Company Ltd. Pine Commercial Centre #12 Pine Commercial The Pine, St. Michael |
Barbados | ||
|
Janice Burke (Director) |
Director, Wentworth Insurance Company Ltd. Pine Commercial Centre #12 Pine Commercial The Pine, St. Michael |
United State of America | ||
| William P. Douglas (Director) |
Director, Wentworth Insurance Company Ltd. Pine Commercial Centre #12 Pine Commercial The Pine, St. Michael |
Barbados | ||
|
Niall Tully (Vice President & Chief Finanacal Officer) |
Vice President and Chief Financial Officer, ffh Management Services First Floor 25-28 Adelaide Road Dublin 2 |
Ireland | ||
|
Paul Mulvin (Vice Preidsdent) |
Vice President, ffh Management Services First Floor 25-28 Adelaide Road Dublin 2 |
Ireland |
ANNEX QQ
DIRECTORS AND EXECUTIVE OFFICERS OF
ALLIED WORLD NATIONAL ASSURANCE COMPANY
The following table sets forth certain information with respect to the directors and executive officers of Allied World National Assurance Company.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Christian Gravier (President, North America Professional Lines) |
President, North America Professional Lines, Allied World Insurance Company 199 Water Street, 26th Floor New York, NY 10038 |
United States | ||
| John Bender (Director) |
CEO, Global Reinsurance, Allied World Assurance Company Holdings, Ltd 199 Water Street, 26th Floor New York, NY 10038 |
United States | ||
| Joseph Cellura (President, North America Casualty) |
President, North America Casualty, Allied World Insurance Company 199 Water Street, 26th Floor New York, NY 10038 |
United States | ||
| Louis Iglesias (Director) |
Chairman of the Board of Directors, President & Chief Executive Officer, Allied World Assurance Company Holdings, Ltd 199 Water Street, 26th Floor New York, NY 10038 |
United States | ||
| Robert Bowden (Executive Vice President, Global Insurance) |
Executive Vice President, Global Insurance, Allied World Insurance Company 550 Hope Street, Suite 1825 Los Angeles, CA 90071 |
United States | ||
| Wesley Dupont (Director) |
Chief Operating Officer, Allied World Assurance Company Holdings, Ltd 199 Water Street, 26th Floor New York, NY 10038 |
United States |
ANNEX RR
DIRECTORS AND EXECUTIVE OFFICERS OF
CRC REINSURANCE LIMITED
The following table sets forth certain information with respect to the directors and executive officers of CRC Reinsurance Limited.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Alistair Dent (Director) |
Director, Wentworth Insurance Company Ltd. Pine Commercial Centre #12 Pine Commercial The Pine, St. Michael |
United Kingdom | ||
| Janice Burke (Director) |
Director Wentworth Insurance Company Ltd. Pine Commercial Centre #12 Pine Commercial The Pine, St. Michael |
United States | ||
| Jean Cloutier (Director) |
Vice President, International Operations, Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario, M5J 2N7 |
Canada | ||
| Lisl Lewis (Director) |
Director, Wentworth Insurance Company Ltd. Pine Commercial Centre #12 Pine Commercial The Pine, St. Michael |
Barbados | ||
| Niall Tully (Vice President and Chief Financial Officer) |
Vice President and Chief Financial Officer, ffh Management Services First Floor 25-28 Adelaide Road Dublin 2 |
Ireland | ||
| Paul Mulvin (Vice President) |
Vice President, ffh Management Services First Floor 25-28 Adelaide Road Dublin 2 |
Ireland | ||
| Sammy S.Y. Chan (Vice President) |
Vice President, Fairfax Asia Limited Room 4111, 41st Floor Hopewell Centre, No. 183 Queen’s Road East, Wanchai, |
Hong Kong |
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| William P. Douglas (Director) |
Director, Wentworth Insurance Company Ltd. Pine Commercial Centre #12 Pine Commercial The Pine, St. Michael |
Barbados |
ANNEX SS
DIRECTORS AND EXECUTIVE OFFICERS OF
BRIT SYNDICATES LIMITED
The following table sets forth certain information with respect to the directors and executive officers of Brit Syndicates Limited.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Andrea Welsch (Director) |
Director, Brit Syndicates Limited The Leadenhall Building, 122 Leadenhall Street, London EC3V 4AB United Kingdom |
United Kingdom | ||
| Caroline Ramsay (Director) |
Director, Brit Syndicates Limited The Leadenhall Building, 122 Leadenhall Street, London EC3V 4AB United Kingdom |
United Kingdom | ||
| Christiern Dart (Director) |
Director, Brit Syndicates Limited The Leadenhall Building, 122 Leadenhall Street London EC3V 4AB |
United Kingdom | ||
| Gavin Wilkinson (Director) |
Group Chief Financial Officer, Brit Limited The Leadenhall Building, 122 Leadenhall Street London EC3V 4AB |
United Kingdom | ||
| Mark Allan (Director) |
Executive Director, Brit Limited and Ki CEO, Brit Limited The Leadenhall Building, 122 Leadenhall Street London EC3V 4AB |
United Kingdom | ||
| Martin Thompson (Director) |
Director Brit Syndicates Limited The Leadenhall Building, 122 Leadenhall Street London EC3V 4AB |
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| Matthew Wilson (Director) |
Director Brit Limited The Leadenhall Building, 122 Leadenhall Street, London EC3V 4AB United Kingdom |
United Kingdom | ||
| Pinar Yetgin (Director) |
Director, Brit Syndicates Limited The Leadenhall Building, 122 Leadenhall Street, London EC3V 4AB United Kingdom |
United Kingdom |
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Simon P.G. Lee (Director) |
Director, Brit Syndicates Limited The Leadenhall Building, 122 Leadenhall Street London EC3V 4AB |
United Kingdom |
ANNEX TT
DIRECTORS AND EXECUTIVE OFFICERS OF
THE NORTH RIVER INSURANCE COMPANY
The following table sets forth certain information with respect to the directors and executive officers of The North River Insurance Company.
| Name | Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or other Organization in which such employment is conducted |
Citizenship | ||
| Alejandro Morales (Senior Vice President and Director) |
Senior Vice President, United States Fire Insurance Company 305 Madison Avenue Morristown, NJ 07962 |
United States | ||
| Arleen A. Paladino (Senior Vice President, Chief Financial Officer and Director) |
Executive Vice President, Chief Financial Officer and Treasurer, Crum & Forster Holdings Corp. 305 Madison Avenue Morristown, NJ 07962 |
United States | ||
| Carmine Scaglione (Senior Vice President and Controller) |
Senior Vice President and Controller, United States Fire Insurance Company 305 Madison Avenue Morristown, NJ 07962 |
United States | ||
| George R. French (Treasurer and Vice President) |
Treasurer and Vice President, United States Fire Insurance Company 305 Madison Avenue Morristown, NJ 07962 |
United States | ||
| Marc J. Adee (President, Chief Executive Officer, Chairman and Director) |
President and Chief Executive Officer, Crum & Forster Holdings Corp. and various other insurance subsidiaries, 305 Madison Avenue Morristown, NJ 07962 |
United States | ||
| Michael P. McTigue (Senior Vice President, General Counsel and Secretary) |
Senior Vice President, General Counsel and Secretary, United States Fire Insurance Company 305 Madison Avenue Morristown, NJ 07962 |
United States |
Exhibit Index
Exhibit 99.9
ROLLOVER AND CONTRIBUTION AGREEMENT
This ROLLOVER AND CONTRIBUTION AGREEMENT (this “Agreement”), dated as of October 31, 2022 is entered into by and between the parties identified on the signature page hereto as Holder (“Holder”) and Poseidon Acquisition Corp., a Marshall Islands corporation (“Parent”).
RECITALS
WHEREAS, Parent, Poseidon Merger Sub, Inc., a Marshall Islands corporation and direct wholly-owned subsidiary of Parent (“Merger Sub”), and Atlas Corp., a Marshall Islands corporation (the “Company”), have entered into that certain Agreement and Plan of Merger, dated as of October 31, 2022 (the “Merger Agreement”). Capitalized terms used herein and not otherwise defined having the meanings ascribed to such terms in the Merger Agreement;
WHEREAS, Holder owns Company Common Shares;
WHEREAS, on the terms and subject to the conditions of this Agreement, Holder desires, on the date on which the Merger is consummated (the “Merger Closing Date”) but before the Effective Time, to contribute (the “Contribution”) to Parent 125,759,155 Company Common Shares (“Rollover Shares”) and any other Company Common Shares acquired by Holder after the date hereof, including all Company Common Shares issued pursuant to the exercise of the FFH Warrant or received in connection with the APR Holdback (collectively with the Rollover Shares, the “Rollover Equity”) in exchange for the issuance by Parent to Holder of a number of newly issued shares of common stock, par value $0.0001 per share, of Parent (the “Parent Common Stock”) equal to the number of shares of Rollover Equity contributed to Parent (the “Exchange Shares”); and Parent desires, on such date, to issue to Holder such Exchange Shares in exchange for Holder’s contribution to Parent of the Rollover Equity;
WHEREAS, at or immediately prior to the consummation of the Contribution, Ocean Network Express Pte. Ltd. and/or certain of its wholly-owned subsidiaries (collectively, “Oasis”) and certain other investors (Oasis, and such other investors collectively, the “Cash Investors”) will capitalize Parent with cash up to the amount set forth in the equity commitment letters (the “ECLs”) executed and delivered by such Cash Investors to Parent at or prior to the Closing (the “Cash Equity Capitalization”), and Parent will issue to the Cash Investors Parent Common Stock;
WHEREAS, in connection with the consummation of the transactions contemplated by this Agreement and the Merger Agreement, Parent, Holder, the Cash Investors and any other Persons who will hold shares of Parent Common Stock will enter into a stockholder agreement in a form consistent with that attached as Exhibit A (the “Parent Stockholder Agreement”) to that certain amendment dated as of the date hereof to the Joint Bidding Agreement, dated as of August 4, 2022, by and among Holder, Oasis and the other parties thereto (in the form provided to the Company prior to the date hereof, the “JBA”); and
WHEREAS, for United States federal income tax purposes, it is intended that the Contribution and the Cash Equity Capitalization, taken together with certain related transfers of property by the Members and their affiliates in exchange for Parent Common Stock and/or other securities of Parent, will qualify as a transfer described in Section 351of the Internal Revenue Code of 1986, as amended (the “Code”), that will not result in the recognition of gain or income under Section 367(a)(1) or (b) of the Code and the Treasury Regulations thereunder (other than by a Member that is required to file a “gain recognition agreement” under Treasury Regulations Section 1.367(a)-3(b)(1) to qualify for such nonrecognition and that fails to properly make such required filing).
NOW, THEREFORE, in order to implement the foregoing and in consideration of the mutual representations, warranties, covenants and agreements contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
Section 1. Contribution.
1.1 Contribution of the Rollover Equity in Exchange for the Exchange Shares. On the terms and subject to the conditions set forth herein, (i) Holder agrees, at the Closing (as defined below) prior to the Effective Time and immediately following the consummation of the Cash Equity Capitalization, to contribute to Parent the Rollover Equity, free and clear of any and all Liens (other than restrictions on the right to sell or otherwise dispose of such shares imposed by state and federal securities laws), in exchange for the issuance by Parent to Holder of the Exchange Shares and (ii) Parent agrees, at the Closing, to issue to Holder the Exchange Shares in exchange for the contribution by Holder to Parent of the Rollover Equity.
1.2 Closing. The closing (the “Closing”) of the Contribution shall occur on the Merger Closing Date but prior to the Effective Time and immediately after the Cash Equity Capitalization. The Closing shall take place through the electronic exchange of documents.
1.3 Reserved.
1.4 Conditions to Closing. The consummation of the Contribution shall be subject to the satisfaction of the following conditions unless waived in writing by Parent and Holder:
(i) No Law. No Applicable Law shall have been enacted, entered, issued or promulgated (and remain in effect) by any Governmental Authority which prohibits consummation of the transactions contemplated hereby.
(ii) Merger Agreement. Either (a) the conditions set forth in Article 9 of the Merger Agreement shall have been satisfied or waived by the party entitled to the benefit of such conditions (which, in the case of Parent, shall require the unanimous consent of each Major Investor) and the contemporaneous consummation of the closing pursuant to Section 2.01(b) of the Merger Agreement shall occur subject to the consummation of the Contribution or (b) a final, non-appealable and binding order or judgment awarding specific performance shall have been entered by a court of competent jurisdiction to cause Parent to consummate the closing pursuant to Section 11.13(a) and (b) of the Merger Agreement.
1.5 Parent Deliveries. At the Closing, Parent shall deliver to Holder (i) stock certificates representing the Exchange Shares and (ii) the Parent Stockholder Agreement duly executed by Parent and the other stockholders of Parent in accordance with the JBA.
1.6 Holder Deliveries. At the Closing, Holder shall deliver to Parent (i) stock certificates evidencing the Rollover Equity, endorsed in blank for transfer or affidavits of loss (together with duly executed stock powers) in each case in form and substance reasonably satisfactory to Parent (ii) the Parent Stockholder Agreement duly executed by Holder in accordance with the JBA, and (iii) an Internal Revenue Service Form W-9.
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Section 2. Representations and Warranties of Parent. Parent hereby represents and warrants to Holder as of the date hereof and as of the Closing as follows:
2.1 Organization. Parent is a corporation, duly organized, validly existing and in good standing under the laws of the Marshall Islands, having full corporate power and authority to own its properties and to carry on its business as conducted.
2.2 Authority; Execution and Delivery. Parent has the requisite corporate or similar power and authority to enter into and deliver this Agreement and any other agreements or instruments executed by it in connection herewith, perform its obligations herein or therein, and consummate the transactions contemplated hereby or thereby. Parent has duly executed and delivered this Agreement and any other agreements or instruments executed by it in connection herewith, and, assuming the execution and delivery by Holder, this Agreement and such other executed agreements or instruments are a valid, legal and binding obligation of Parent, enforceable against Parent in accordance with their terms, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and subject to general principles of equity (regardless of whether such enforcement is considered in a proceeding at law or at equity).
2.3 Parent Common Stock Duly Authorized; Capitalization. All of the shares of Parent Common Stock to be issued to Holder under this Agreement, when issued and delivered in accordance with the terms of this Agreement, will be duly authorized, validly issued, fully paid and non-assessable and free and clear of any Liens (other than those arising under the Parent Stockholder Agreement and restrictions imposed by applicable securities laws). The anticipated pro forma capitalization of the Company as of the Closing of the Merger (assuming the rollover by certain other members of management as set forth therein) is set forth on Exhibit A hereto (which the parties hereto acknowledge is subject to change based on the number of shares of Company Common Shares, Company RSUs, Company Options, Company Restricted Shares and Company PSUs outstanding immediately prior to the Effective Time and the payments required at or after the Effective Time to the holders thereof), and there will be no options, warrants or other securities exercisable or convertible into capital stock of Parent at such time except as set forth on Exhibit A hereto or as otherwise mutually agreed to by the Holder and the Cash Investors.
2.4 No Conflicts; No Consents. The execution and delivery of this Agreement by Parent, the performance by Parent of its obligations hereunder, and the consummation by Parent of the transactions contemplated hereby do not and will not (a) conflict with Parent’s certificate of incorporation or bylaws, (b) materially violate or materially conflict with any Applicable Law applicable to Parent or any of Parent’s assets or properties, except as set forth on Section 4.03 of the Company Disclosure Schedule, or (c) violate or conflict with in any material respect, result in any material breach of, or constitute a material default (or event which with the giving of notice or lapse of time, or both, would become a material default) under, any agreement to which Parent is a party or by which any of its assets or properties is bound. No consent, approval, authorization, license, order or permit of, or declaration, filing or registration with, or notification to, any Governmental Authority or any other Person is required to be made or obtained by Parent in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, except as set forth on Section 4.03 of the Company Disclosure Schedule.
2.5 No Litigation. As of the date of this Agreement, there is no Legal Action pending or, to Parent’s knowledge, threatened against Parent that would or seeks to materially delay or prevent the consummation of the transactions contemplated hereby. As of the date of this Agreement, Parent is not subject to any continuing order of, consent decree, settlement agreement or other similar written agreement with, or, to Parent’s knowledge, continuing investigation by, any Governmental Authority, or any Applicable Law that would or seeks to materially delay or prevent the consummation of the transactions contemplated hereby.
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2.6 No Other Representation. Parent has received no other representations or warranties from Holder or any other person acting on behalf of the Holder, other than those contained in this Agreement and any other agreements or instruments executed by or on behalf of Holder in connection herewith.
Section 3. Representations and Warranties of Holder. Holder hereby represents and warrants to Parent as of the date hereof and as of the Closing as follows:
3.1 Organization. Holder (if not an individual) is a legal entity, duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, having full legal entity power and authority to own its properties and to carry on its business as conducted.
3.2 Ownership of the Rollover Shares. Holder represents and warrants, as indicated on Fairfax Financial Holdings Limited’s Schedule 13D on file with the Securities Exchange Commission, as amended through the date hereof and the Company’s most recent Form 20-F, that Holder (i) owns and holds good and valid title to all of the Rollover Shares set forth opposite Holder’s name on Schedule 1 to the JBA, free and clear of any liens or other restrictions on title that would prevent Holder from entering into this Agreement or consummating the Merger, (ii) Holder has sole voting power, power of disposition, and power to issue instructions with respect to the Rollover Shares set forth opposite Holder’s name on Schedule 1 to the JBA and power to agree to all of the matters applicable to Holder set forth in this Agreement, in each case, over all of the Rollover Shares set forth opposite Holder’s name on Schedule 1, and (iii) Holder owns no other securities (including debt securities) of the Company or any of its subsidiaries or securities that are convertible, exercisable or exchangeable for such securities other than the Rollover Shares (other than the Company’s Series J Preferred Shares).
3.3 Execution and Delivery. This Agreement has been duly executed and delivered by Holder, and, assuming the due authorization, execution and delivery by Parent, this Agreement is a valid, legal and binding obligation of Holder, enforceable against Holder in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and subject to general principles of equity (regardless of whether such enforcement is considered in a proceeding at law or at equity).
3.4 Holder Intent. Holder is acquiring the Exchange Shares for Holder’s own account as principal, for investment purposes only, not for any other person or entity and not for the purposes of resale or distribution.
3.5 Financial Status. Holder is an “accredited investor” as such term is defined in Regulation D promulgated under the Securities Act. Holder is able to bear the economic risk of an investment in shares of Parent Common Stock for an indefinite period of time, has adequate means of providing for its, his or her current financial needs and personal contingencies, has no need for liquidity in the investment in shares of Parent Common Stock, understands that Holder may not be able to liquidate its, his or her investment in Parent in an emergency, if at all, and can afford a complete loss of the investment.
3.6 No Other Representation. Holder has received no other representations or warranties from Parent or any other person acting on behalf of Parent, other than those contained in this Agreement, the JBA, the Voting and Support Agreements and any other agreements or instruments executed by or on behalf of Parent or its Affiliates in connection herewith.
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3.7 No Conflicts; No Consents. The execution and delivery of this Agreement by Holder, the performance by Holder of its obligations hereunder and the consummation by Holder of the transactions contemplated hereby do not and will not (a) materially violate or materially conflict with any Applicable Law applicable to Holder or any of Holder’s assets or properties or (b) violate or conflict with in any material respect, result in any material breach of, or constitute a material default (or event which with the giving of notice or lapse of time, or both, would become a material default) under, any agreement to which Holder is a party or by which any of its assets or properties is bound. No consent, approval, authorization, license, order or permit of, or declaration, filing or registration with, or notification to, any Governmental Authority or any other Person is required to be made or obtained by Holder in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby.
3.8 No Litigation. As of the date of this Agreement, there is no Legal Action pending or, to Holder’s knowledge, threatened against Holder that would or seeks to materially delay or prevent the consummation of the transactions contemplated hereby. As of the date of this Agreement, Holder is not subject to any continuing order of, consent decree, settlement agreement or other similar written agreement with, or, to Holder’s knowledge, continuing investigation by, any Governmental Authority, or any Applicable Law that would or seeks to materially delay or prevent the consummation of the transactions contemplated hereby.
Section 4. Agreements and Acknowledgements of Holder. Holder hereby agrees and acknowledges as follows:
4.1 No Registration. Holder understands and agrees that the Exchange Shares are being acquired by Holder in a transaction not involving any public offering within the meaning of the Securities Act, in reliance on an exemption therefrom. Holder understands that the Exchange Shares have not been, and will not be, approved or disapproved by the U.S. Securities and Exchange Commission or by any other foreign, federal or state agency, and that no such agency has passed on the accuracy or adequacy of disclosures made to Holder by Parent. No foreign, federal or state governmental agency has passed on or made any recommendation or endorsement of the Exchange Shares or an investment in Parent.
4.2 Limitations on Disposition and Resale. Holder understands and acknowledges that the Exchange Shares have not been and will not be registered under the Securities Act, or the securities laws of any state or foreign jurisdiction and, unless the Exchange Shares are so registered, they may not be offered, sold, transferred or otherwise disposed of except pursuant to an effective registration statement under the Securities Act or an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and any applicable securities laws of any state or foreign jurisdiction. Holder recognizes that there will not be any public trading market for Parent Common Stock, and as a result, Holder may be unable to sell or dispose of its interest in Parent.
4.3 Newly Formed Entity. Holder recognizes that Parent was only formed in connection with the transactions contemplated by the Merger Agreement and the JBA and, accordingly, has no financial or operating history and that the investment in Parent is extremely speculative and involves a high degree of risk.
4.4 Sole Consideration. Holder acknowledges and agrees that the Exchange Shares shall constitute the sole consideration that Holder is entitled to receive in exchange for Holder’s Rollover Equity.
5
4.5 Independent Investigation. Holder acknowledges and agrees that neither Parent nor any of its Affiliates or Representatives are advising Holder as to any tax, legal, investment, accounting or regulatory matters in any jurisdiction, neither Parent nor any of its Affiliates or Representatives shall have any responsibility or liability to Holder with respect thereto and neither Parent nor any of its Affiliates is making any representation or warranty as to the tax treatment of the Contribution. Holder acknowledges and agrees that he, she or it has consulted with his, her or its own advisors concerning such matters and shall be responsible for making his, her or its own independent investigation and appraisal of the transactions contemplated by this Agreement, and neither Parent nor any of its Affiliates or Representatives shall have responsibility or liability to Holder with respect thereto.
Section 5. Governing Law. To the maximum extent permitted by Applicable Law, this Agreement and all claims or causes of action (whether in contract, tort or otherwise) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance of this Agreement shall be governed and construed in accordance with the laws of the State of Delaware, without regard to principles of conflicts of law.
Section 6. Specific Performance; Submission to Jurisdiction; Waiver of Jury Trial.
6.1 Specific Performance. The parties hereto agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with its terms, and that monetary damages, even if available, would not be an adequate remedy therefor. Accordingly, the parties hereto agree that the parties shall be entitled to an injunction or injunctions, or any other appropriate form of equitable relief, to prevent breaches or threatened breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof, without the necessity of proving the inadequacy of money damages as a remedy (and each party hereby waives any requirement for the securing or posting of any bond in connection with such remedy), in addition to any other remedy to which they are entitled at law or in equity. Each party agrees not to assert that a remedy of monetary damages would provide an adequate remedy for any such breach. The parties further agree that nothing contained in this Section 6.1 shall require any party to institute any Legal Action for (or limit any party’s right to institute any Legal Action for) specific performance under this Section 6.1, nor shall the commencement of any Legal Action pursuant to this Section 6.1 or anything contained in this Section 6.1 restrict or limit any party’s right to pursue any other remedies under this Agreement that may be available then or thereafter.
6.2 Submission to Jurisdiction. Each party hereto agrees that this Agreement has been entered into by the parties hereto in express reliance upon 6 Del. C. § 2708. Each of the parties, to the maximum extent permitted by Applicable Law, (a) irrevocably submits to the personal jurisdiction of any state or federal court sitting in the state of Delaware, as well as to the jurisdiction of all courts to which an appeal may be taken from such courts, in any suit, action or proceeding arising out of or relating to this Agreement, (b) agrees that all claims in respect of such suit, action or proceeding shall be brought, heard and determined exclusively in the Delaware Court of Chancery (provided that, in the event that subject matter jurisdiction is unavailable in that court, then all such claims shall be brought, heard and determined exclusively in any other state or federal court sitting in the state of Delaware), (c) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from such court, (d) agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court, and (e) expressly waives, and agrees not to plead or to make any claim that any such action or proceeding is subject (in whole or in part) to a jury trial, (f) agrees (1) to the extent such party is not otherwise subject to service of process in the State of Delaware, to appoint and maintain an agent in the State of Delaware as such party’s agent for acceptance of legal process, and (2) that, to the fullest extent permitted by applicable law, service of process may also be made on such party by prepaid certified mail with a proof of mailing receipt validated by the United States Postal Service constituting evidence of valid service, and that service made pursuant to (f)(1) or (2) above shall, to the fullest extent permitted by applicable law, have the same legal force and effect as if served upon such party personally within the State of Delaware and (g) waives, to the fullest extent permitted by Applicable Law, any objection 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 brought in any such court has been brought in an inconvenient forum. For purposes of implementing the parties’ agreement to appoint and maintain an agent for service of process in the State of Delaware, each such party that has not as of the date hereof already duly appointed such an agent in Delaware does hereby appoint CT Corporation as such agent. Each of the parties waives any defense of inconvenient forum to the maintenance of any action or proceeding brought in accordance with this paragraph. Each of the parties further consents and agrees that, to the maximum extent permitted by Applicable Law, process in any suit, action or proceeding may be served on such party in accordance with the notice provisions of Section 7 of this Agreement.
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6.3 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATION OF THIS WAIVER, (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) EACH OTHER PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 7. Notices. All notices, requests and other communications to any party hereunder shall be in writing (including electronic mail (“e-mail”) transmission), so long as a receipt of such e-mail is requested and received (other than any automatically generated reply) and shall be given,
(a) If to Parent, to:
Poseidon Acquisition Corp.
Trust Company Complex
Ajeltake Road, Ajeltake Island
Majuro, Marshall Islands MH96960
Attention: David L. Sokol
Email:
with copies (which shall not constitute notice) to:
Honigman LLP
2290 First National Building
600 Woodward Avenue
Detroit, MI 48226
Attention: Tracy Larsen; Jeff Kuras; Barbara Kaye
Email:
and
Latham & Watkins LLP
1271 Avenue of the Americas
New York, NY 10020
Attention: David Kurzweil
Email:
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and
Torys LLP
1114 Avenue of the Americas, 23rd Floor
New York, NY 10036
Attention: Michael Horwitz
Email:
and
K&L Gates LLP
925 Fourth Avenue, Suite 2900
Seattle, WA 98104
Attention: Stephan Coonrod; Christopher H. Cunningham; Chris Bellavia
Email:
(b) If to Holder, to:
c/o Hamblin Watsa Investment Counsel Ltd.
95 Wellington Street West, Suite 802
Toronto, Ontario, Canada M5J 2N7
Attention: General Counsel
Email:
with a copy to (which shall not constitute notice):
Torys LLP
1114 Avenue of the Americas, 23rd Floor
New York, NY 10036
Attention: Michael Horwitz
Email:
Section 8. Assignment. No party shall have the right or the power to assign or delegate any provision of this Agreement except with the prior written consent of Parent (which shall require the consent of each Majority Investor), in the case of an assignment or delegation by Holder, or with the prior written consent of Holder and each Majority Investor, in the case of an assignment or delegation by Parent. Except as provided in the preceding sentence and in Section 15, this Agreement shall be binding upon and shall inure to the benefit of the parties’ respective successors, assigns, executors and administrators; provided, however, that the Special Committee (on behalf the Company) and each of the other parties to the JBA (other than Holder) are each hereby made an express third party beneficiary hereof with full power and authority for purposes of this Section 8, Section 11 and Section 14 (as applicable), as well as to specifically enforce the obligations set forth in this Agreement pursuant to Section 6.1 against Holder and Parent (which right of specific performance may be sought directly against Holder or indirectly through Parent), including to consummate the Contribution in accordance with the terms hereof.
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Section 9. Certain Tax Matters. To the fullest extent permitted by applicable law, for federal income tax purposes, the parties hereto shall (a) treat the Contribution and the Cash Equity Capitalization, taken together with certain related transfers of property by the Members and their affiliates in exchange for Parent Common Stock and/or other securities of Parent as a transfer described in Section 351 of the Code that will not result in the recognition of gain or income under Section 367(a)(1) or (b) of the Code and the Treasury Regulations thereunder (other than by a Member that is required to file a “gain recognition agreement” under Treasury Regulations Section 1.367(a)-3(b)(1) to qualify for such nonrecognition and that fails to properly make such required filing); and (b) file all Tax Returns in a manner consistent with such intended tax treatment. Holder agrees to provide to Parent all information reasonably necessary for Parent to prepare and file Tax Returns with respect to the Contribution, including any information with respect to such Holder described in Treasury Regulation Section 1.351-3(b), if applicable.
Section 10. Counterparts. This Agreement may be executed in counterparts, including by facsimile or other means of electronic transmission (such as by electronic mail in “.pdf” form), each of which shall be deemed an original and all of which taken together, shall constitute one and the same document.
Section 11. Entire Agreement. Without limiting the JBA, any ECL delivered by Holder, the Merger Agreement or any other Transaction Document, this Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof, and this Agreement may be amended only in a writing executed by the parties hereto (with the consent of each Majority Investor and the Special Committee (on behalf of the Company)). The parties hereto agree and acknowledge that the existence and terms of the JBA shall have no effect on, and in no manner impair or alter, the Company’s rights under this Agreement.
Section 12. No Fiduciary Responsibilities. Notwithstanding any provision of this Agreement to the contrary, this Agreement shall apply to Holder solely in its capacity as a shareholder of the Company and not in any other capacity, and nothing in this Agreement shall limit, restrict or affect the rights and obligations of Holder or any of its Affiliates or Representatives from taking any action in his or her capacity as a director, officer or employee of the Company, whether in connection with the Merger Agreement or otherwise, and no action or omissions by any such Persons in his or her capacity as a director, officer or employee of the Company shall be deemed to constitute a breach of any provision of this Agreement.
Section 13. Effect of Adverse Recommendation Change. Until the termination of this Agreement in accordance with its terms, the obligations of Holder shall apply whether or not the Board of Directors (or any committee thereof) has effected an Adverse Recommendation Change.
Section 14. Termination of Agreement. This Agreement may be terminated by the mutual written consent of Parent (with the consent of each Majority Investor), the Special Committee (on behalf of the Company) and Holder, and this Agreement shall terminate automatically, without any action of the parties hereto, upon the earlier to occur of (a) the Closing, and (b) the valid termination of the Merger Agreement. Upon any such termination, this Agreement shall not have any further force and effect and no party shall have any further liability or obligation under this Agreement, whether in contract or in tort or any other theory of liability whatsoever. If this Agreement is validly terminated pursuant to this Section 14, this Agreement shall become void and of no effect; provided that the Surviving Provisions (as defined in the JBA), this Section 14 and Section 15 (together with Sections 5, 6 and 7 to extent relevant to said Sections 14 and 15) shall survive such termination to the extent set forth therein.
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Section 15. Non-Recourse. Notwithstanding anything to the contrary that may be expressed or implied in this Agreement or any document or instrument delivered contemporaneously herewith, and notwithstanding the fact that Holder or any of its successors or permitted assignees may be a partnership, limited liability company or similar domestic or foreign entity, Parent by its acceptance of the benefits of this Agreement, covenants, agrees and acknowledges that no person other than Holder and its successors and permitted assignees shall have any obligation hereunder and that it has no rights of recovery against, and no recourse hereunder or under this Agreement, the Merger Agreement, the JBA, Holder’s ECL (if any) or any documents or instruments delivered in connection herewith or therewith shall be had against, any former, current or future director, officer, agent, Affiliate, manager or employee of Holder (or any of its successors or assignees), against any former, current or future general or limited partner, manager, equityholder or member of Holder (or any of its successors or assignees) or any Affiliate or related party thereof or against any former, current or future director, officer, agent, employee, Affiliate, related party, assignee, general or limited partner, equityholder, manager or member of any of the foregoing (each, other than Holder and its successors and permitted assignees, a “Holder Affiliate”), whether by or through attempted piercing of the corporate veil, by or through a claim by or on behalf of Holder against the Holder Affiliates, by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable law, or otherwise; provided that (and notwithstanding anything to the contrary provided herein or in any document or instrument delivered contemporaneously herewith), (A) nothing herein shall limit the rights of each of the other parties to the JBA (other than Holder) against Holder under the JBA pursuant to the terms and conditions of the JBA, and (B) nothing herein shall limit the rights of each of the other parties to the JBA (other than Holder) and Parent against Holder (or with respect to any assignee hereof) as a third-party beneficiary under Holder’s ECL (if any) pursuant to the terms and conditions thereof. The parties hereto expressly agree and acknowledge that no liability whatsoever shall attach to, be imposed on, or otherwise be incurred by any Holder Affiliate, as such, for any obligations of Holder under this Agreement or the transactions contemplated hereby, under any documents or instruments delivered in connection herewith, or for any claim based on, in respect of, or by reason of, such obligations or their creation.
[Signature page follows]
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IN WITNESS WHEREOF, the parties have hereby executed this Agreement as of the date first above written.
| PARENT: | ||
| POSEIDON ACQUISITION CORP. | ||
| By: | /s/ David L. Sokol | |
| Name: David L. Sokol | ||
| Title: Chairman | ||
[Signature Page to Rollover and Contribution Agreement]
| HOLDER: | ||
| Hamblin Watsa Investment Counsel Ltd., in its capacity as investment manager and/or pursuant to a power of attorney on behalf of all entities set out on Schedule I hereto, other than The Section 810 Holdco Ltd. and The Sixty Three Foundation | ||
| By: | /s/ Peter Clarke | |
| Name: Peter Clarke | ||
| Title: Chief Risk Officer | ||
| THE SECOND 810 HOLDCO LTD. | ||
| By: | /s/ V. Prem Watsa | |
| Name: V. Prem Watsa | ||
| Title: President | ||
| THE SIXTY THREE FOUNDATION | ||
| By: | /s/ V. Prem Watsa | |
| Name: V. Prem Watsa | ||
| Title: Director | ||
[Signature Page to Rollover and Contribution Agreement]
Schedule I
Stockholders and Warrantholders Controlled by Fairfax Financial Holdings Limited
Allied World Assurance Company (Europe) dac
Allied World Assurance Company (U.S.) Inc.
Allied World Assurance Company, AG
Allied World Assurance Company, Ltd
Allied World Insurance Company
Allied World National Assurance Company
Allied World Specialty Insurance Company
Allied World Surplus Lines Insurance Company
Brit Reinsurance (Bermuda) Limited
Brit Syndicates Limited
Brit UW Limited
Fairfax (Barbados) International Corp.
Fairfax Financial Holdings Limited
Greystone Insurance Company
Hilltop Specialty Insurance Company
Hudson Excess Insurance Company
Hudson Insurance Company
HWIC Global Equity Fund
Newline Corporate Name Limited
Odyssey Group Holdings, Inc.
Odyssey Reinsurance Company
RiverStone Corporate Capital Limited
RiverStone Insurance (UK) Limited
The North River Insurance Company
The Second 810 Holdco Ltd.
The Sixty Three Foundation
TIG Insurance (Barbados) Limited
TIG Insurance Company
Trustees of Newline Syndicate 1218
United States Fire Insurance Company
Wentworth Insurance Company Ltd.
Zenith Insurance Company
Exhibit A
Capitalization1
| Investors | Implied Shares in Parent | Ownership Percentage | ||||||
| Ocean Network Express Pte. Ltd. | 88,194,568 | 28.9 | % | |||||
| Fairfax Financial Holdings Limited2 | 131,759,155 | 43.2 | % | |||||
| Deep Water Holdings, LLC, The Kyle Roy Washington 2014 Trust, Kyle Roy Washington 2005 Irrevocable Trust u/a/d July 15, 2005, and The Kevin Lee Washington 2014 Trust | 74,608,052 | 24.4 | % | |||||
| David L. Sokol | 8,889,884 | 2.9 | % | |||||
| Bing Chen3 | 1,841,316 | 0.6 | % | |||||
| Totals4 | 305,292,975 | 100.0 | % | |||||
1 Based on capitalization as set forth in Section 4.05 of the Merger Agreement.
2 Assumes no Holdback Shares are issued prior to the Merger.
3 Assumes that Bing Chen exchanges 750,000 Company Common Shares in the Merger for the Merger Consideration. In addition, does not account for any future equity grants prior to the Merger that Bing Chen would rollover (expected to be 1,000,000 Company Common Shares subject to vesting and forfeiture).
4 Assumes that all Company RSUs and Company Phantom Shares are cashed out prior to the Closing.
Exhibit 99.10
ROLLOVER AND CONTRIBUTION AGREEMENT
This ROLLOVER AND CONTRIBUTION AGREEMENT (this “Agreement”), dated as of October 31, 2022 is entered into by and between the parties identified on the signature page hereto as Holder (“Holder”) and Poseidon Acquisition Corp., a Marshall Islands corporation (“Parent”).
RECITALS
WHEREAS, Parent, Poseidon Merger Sub, Inc., a Marshall Islands corporation and direct wholly-owned subsidiary of Parent (“Merger Sub”), and Atlas Corp., a Marshall Islands corporation (the “Company”), have entered into that certain Agreement and Plan of Merger, dated as of October 31, 2022 (the “Merger Agreement”). Capitalized terms used herein and not otherwise defined having the meanings ascribed to such terms in the Merger Agreement;
WHEREAS, Holder owns Company Common Shares;
WHEREAS, on the terms and subject to the conditions of this Agreement, Holder desires, on the date on which the Merger is consummated (the “Merger Closing Date”) but before the Effective Time, to contribute (the “Contribution”) to Parent 63,583,731 Company Common Shares (“Rollover Shares”) and any other Company Common Shares acquired by Holder after the date hereof (collectively with the Rollover Shares, the “Rollover Equity”) in exchange for the issuance by Parent to Holder of a number of newly issued shares of common stock, par value $0.0001 per share, of Parent (the “Parent Common Stock”) equal to the number of shares of Rollover Equity contributed to Parent (the “Exchange Shares”); and Parent desires, on such date, to issue to Holder such Exchange Shares in exchange for Holder’s contribution to Parent of the Rollover Equity;
WHEREAS, at or immediately prior to the consummation of the Contribution, Ocean Network Express Pte. Ltd. and/or certain of its wholly-owned subsidiaries (collectively, “Oasis”) and certain other investors (Oasis, and such other investors collectively, the “Cash Investors”) will capitalize Parent with cash up to the amount set forth in the equity commitment letters (the “ECLs”) executed and delivered by such Cash Investors to Parent at or prior to the Closing (the “Cash Equity Capitalization”), and Parent will issue to the Cash Investors Parent Common Stock;
WHEREAS, in connection with the consummation of the transactions contemplated by this Agreement and the Merger Agreement, Parent, Holder, the Cash Investors and any other Persons who will hold shares of Parent Common Stock will enter into a stockholder agreement in a form consistent with that attached as Exhibit A (the “Parent Stockholder Agreement”) to that certain amendment dated as of the date hereof to the Joint Bidding Agreement, dated as of August 4, 2022, by and among Holder, Oasis and the other parties thereto, as amended (in the form provided to the Company prior to the date hereof, the “JBA”); and
WHEREAS, for United States federal income tax purposes, it is intended that the Contribution and the Cash Equity Capitalization, taken together with certain related transfers of property by the Members and their affiliates in exchange for Parent Common Stock and/or other securities of Parent, will qualify as a transfer described in Section 351 of the Internal Revenue Code of 1986, as amended (the “Code”), that will not result in the recognition of gain or income under Section 367(a)(1) or (b) of the Code and the Treasury Regulations thereunder (other than by a Member that is required to file a “gain recognition agreement” under Treasury Regulations Section 1.367(a)-3(b)(1) to qualify for such nonrecognition and that fails to properly make such required filing).
NOW, THEREFORE, in order to implement the foregoing and in consideration of the mutual representations, warranties, covenants and agreements contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
Section 1. Contribution.
1.1 Contribution of the Rollover Equity in Exchange for the Exchange Shares. On the terms and subject to the conditions set forth herein, (i) Holder agrees, at the Closing (as defined below) prior to the Effective Time and immediately following the consummation of the Cash Equity Capitalization, to contribute to Parent the Rollover Equity, free and clear of any and all Liens (other than restrictions on the right to sell or otherwise dispose of such shares imposed by state and federal securities laws), in exchange for the issuance by Parent to Holder of the Exchange Shares and (ii) Parent agrees, at the Closing, to issue to Holder the Exchange Shares in exchange for the contribution by Holder to Parent of the Rollover Equity.
1.2 Closing. The closing (the “Closing”) of the Contribution shall occur on the Merger Closing Date but prior to the Effective Time and immediately after the Cash Equity Capitalization. The Closing shall take place through the electronic exchange of documents.
1.3 [Reserved].
1.4 Conditions to Closing. The consummation of the Contribution shall be subject to the satisfaction of the following conditions unless waived in writing by Parent and Holder of the following conditions:
(i) No Law. No Applicable Law shall have been enacted, entered, issued or promulgated (and remain in effect) by any Governmental Authority which prohibits consummation of the transactions contemplated hereby.
(ii) Merger Agreement. Either (a) the conditions set forth in Article 9 of the Merger Agreement shall have been satisfied or waived by the party entitled to the benefit of such conditions (which, in the case of Parent, shall require the unanimous consent of each Major Investor) and the contemporaneous consummation of the closing pursuant to Section 2.01(b) of the Merger Agreement shall occur subject to the consummation of the Contribution or (b) a final, non-appealable and binding order or judgment awarding specific performance shall have been entered by a court of competent jurisdiction to cause Parent to consummate the closing pursuant to Section 11.13(a) and (b) of the Merger Agreement.
1.5 Parent Deliveries. At the Closing, Parent shall deliver to Holder (i) stock certificates representing the Exchange Shares and (ii) the Parent Stockholder Agreement duly executed by Parent and the other stockholders of Parent in accordance with the JBA.
1.6 Holder Deliveries. At the Closing, Holder shall deliver to Parent (i) stock certificates evidencing the Rollover Equity, endorsed in blank for transfer or affidavits of loss (together with duly executed stock powers) in each case in form and substance reasonably satisfactory to Parent (ii) the Parent Stockholder Agreement duly executed by Holder in accordance with the JBA, and (iii) an Internal Revenue Service Form W-9.
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Section 2. Representations and Warranties of Parent. Parent hereby represents and warrants to Holder as of the date hereof and as of the Closing as follows:
2.1 Organization. Parent is a corporation, duly organized, validly existing and in good standing under the laws of the Marshall Islands, having full corporate power and authority to own its properties and to carry on its business as conducted.
2.2 Authority; Execution and Delivery. Parent has the requisite corporate or similar power and authority to enter into and deliver this Agreement and any other agreements or instruments executed by it in connection herewith, perform its obligations herein or therein, and consummate the transactions contemplated hereby or thereby. Parent has duly executed and delivered this Agreement and any other agreements or instruments executed by it in connection herewith, and, assuming the execution and delivery by Holder, this Agreement and such other executed agreements or instruments are a valid, legal and binding obligation of Parent, enforceable against Parent in accordance with their terms, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and subject to general principles of equity (regardless of whether such enforcement is considered in a proceeding at law or at equity).
2.3 Parent Common Stock Duly Authorized; Capitalization. All of the shares of Parent Common Stock to be issued to Holder under this Agreement, when issued and delivered in accordance with the terms of this Agreement, will be duly authorized, validly issued, fully paid and non-assessable and free and clear of any Liens (other than those arising under the Parent Stockholder Agreement and restrictions imposed by applicable securities laws). The anticipated pro forma capitalization of the Company as of the Closing of the Merger (assuming the rollover by certain other members of management as set forth therein) is set forth on Exhibit A hereto (which the parties hereto acknowledge is subject to change based on the number of shares of Company Common Shares, Company RSUs, Company Options, Company Restricted Shares and Company PSUs outstanding immediately prior to the Effective Time and the payments required at or after the Effective Time to the holders thereof), and there will be no options, warrants or other securities exercisable or convertible into capital stock of Parent at such time except as set forth on Exhibit A hereto or as otherwise mutually agreed to by the Holder and the Cash Investors.
2.4 No Conflicts; No Consents. The execution and delivery of this Agreement by Parent, the performance by Parent of its obligations hereunder, and the consummation by Parent of the transactions contemplated hereby do not and will not (a) conflict with Parent’s certificate of incorporation or bylaws, (b) materially violate or materially conflict with any Applicable Law applicable to Parent or any of Parent’s assets or properties, except as set forth on Section 4.03 of the Company Disclosure Schedule, or (c) violate or conflict with in any material respect, result in any material breach of, or constitute a material default (or event which with the giving of notice or lapse of time, or both, would become a material default) under, any agreement to which Parent is a party or by which any of its assets or properties is bound. No consent, approval, authorization, license, order or permit of, or declaration, filing or registration with, or notification to, any Governmental Authority or any other Person is required to be made or obtained by Parent in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, except as set forth on Section 4.03 of the Company Disclosure Schedule.
2.5 No Litigation. As of the date of this Agreement, there is no Legal Action pending or, to Parent’s knowledge, threatened against Parent that would or seeks to materially delay or prevent the consummation of the transactions contemplated hereby. As of the date of this Agreement, Parent is not subject to any continuing order of, consent decree, settlement agreement or other similar written agreement with, or, to Parent’s knowledge, continuing investigation by, any Governmental Authority, or any Applicable Law that would or seeks to materially delay or prevent the consummation of the transactions contemplated hereby.
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2.6 No Other Representation. Parent has received no other representations or warranties from Holder or any other person acting on behalf of the Holder, other than those contained in this Agreement and any other agreements or instruments executed by or on behalf of Holder in connection herewith.
Section 3. Representations and Warranties of Holder. Holder hereby represents and warrants to Parent as of the date hereof and as of the Closing as follows:
3.1 Organization. Holder (if not an individual) is a legal entity, duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, having full legal entity power and authority to own its properties and to carry on its business as conducted.
3.2 Ownership of the Rollover Shares. Holder represents and warrants that Holder (i) owns and holds good and valid title to all of the Rollover Shares set forth opposite Holder’s name on Schedule 1 to the JBA, free and clear of any liens or other restrictions on title that would prevent Holder from entering into this Agreement or consummating the Merger, (ii) Holder has sole voting power, power of disposition, and power to issue instructions with respect to the Rollover Shares set forth opposite Holder’s name on Schedule 1 to the JBA and power to agree to all of the matters applicable to Holder set forth in this Agreement, in each case, over all of the Rollover Shares set forth opposite Holder’s name on Schedule 1, and (iii) Holder owns no other securities (including debt securities) of the Company or any of its subsidiaries or securities that are convertible, exercisable or exchangeable for such securities other than the Rollover Shares.
3.3 Execution and Delivery. This Agreement has been duly executed and delivered by Holder, and, assuming the due authorization, execution and delivery by Parent, this Agreement is a valid, legal and binding obligation of Holder, enforceable against Holder in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and subject to general principles of equity (regardless of whether such enforcement is considered in a proceeding at law or at equity).
3.4 Holder Intent. Holder is acquiring the Exchange Shares for Holder’s own account as principal, for investment purposes only, not for any other person or entity and not for the purposes of resale or distribution.
3.5 Financial Status. Holder is an “accredited investor” as such term is defined in Regulation D promulgated under the Securities Act. Holder is able to bear the economic risk of an investment in shares of Parent Common Stock for an indefinite period of time, has adequate means of providing for its, his or her current financial needs and personal contingencies, has no need for liquidity in the investment in shares of Parent Common Stock, understands that Holder may not be able to liquidate its, his or her investment in Parent in an emergency, if at all, and can afford a complete loss of the investment.
3.6 No Other Representation. Holder has received no other representations or warranties from Parent or any other person acting on behalf of Parent, other than those contained in this Agreement, the JBA, the Voting and Support Agreements and any other agreements or instruments executed by or on behalf of Parent or its Affiliates in connection herewith.
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3.7 No Conflicts; No Consents. The execution and delivery of this Agreement by Holder, the performance by Holder of its obligations hereunder and the consummation by Holder of the transactions contemplated hereby do not and will not (a) materially violate or materially conflict with any Applicable Law applicable to Holder or any of Holder’s assets or properties or (b) violate or conflict with in any material respect, result in any material breach of, or constitute a material default (or event which with the giving of notice or lapse of time, or both, would become a material default) under, any agreement to which Holder is a party or by which any of its assets or properties is bound. No consent, approval, authorization, license, order or permit of, or declaration, filing or registration with, or notification to, any Governmental Authority or any other Person is required to be made or obtained by Holder in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby.
3.8 No Litigation. As of the date of this Agreement, there is no Legal Action pending or, to Holder’s knowledge, threatened against Holder that would or seeks to materially delay or prevent the consummation of the transactions contemplated hereby. As of the date of this Agreement, Holder is not subject to any continuing order of, consent decree, settlement agreement or other similar written agreement with, or, to Holder’s knowledge, continuing investigation by, any Governmental Authority, or any Applicable Law that would or seeks to materially delay or prevent the consummation of the transactions contemplated hereby.
Section 4. Agreements and Acknowledgements of Holder. Holder hereby agrees and acknowledges as follows:
4.1 No Registration. Holder understands and agrees that the Exchange Shares are being acquired by Holder in a transaction not involving any public offering within the meaning of the Securities Act, in reliance on an exemption therefrom. Holder understands that the Exchange Shares have not been, and will not be, approved or disapproved by the U.S. Securities and Exchange Commission or by any other foreign, federal or state agency, and that no such agency has passed on the accuracy or adequacy of disclosures made to Holder by Parent. No foreign, federal or state governmental agency has passed on or made any recommendation or endorsement of the Exchange Shares or an investment in Parent.
4.2 Limitations on Disposition and Resale. Holder understands and acknowledges that the Exchange Shares have not been and will not be registered under the Securities Act, or the securities laws of any state or foreign jurisdiction and, unless the Exchange Shares are so registered, they may not be offered, sold, transferred or otherwise disposed of except pursuant to an effective registration statement under the Securities Act or an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and any applicable securities laws of any state or foreign jurisdiction. Holder recognizes that there will not be any public trading market for Parent Common Stock, and as a result, Holder may be unable to sell or dispose of its interest in Parent.
4.3 Newly Formed Entity. Holder recognizes that Parent was only formed in connection with the transactions contemplated by the Merger Agreement and the JBA and, accordingly, has no financial or operating history and that the investment in Parent is extremely speculative and involves a high degree of risk.
4.4 Sole Consideration. Holder acknowledges and agrees that the Exchange Shares shall constitute the sole consideration that Holder is entitled to receive in exchange for Holder’s Rollover Equity.
4.5 Independent Investigation. Holder acknowledges and agrees that neither Parent nor any of its Affiliates or Representatives are advising Holder as to any tax, legal, investment, accounting or regulatory matters in any jurisdiction, neither Parent nor any of its Affiliates or Representatives shall have any responsibility or liability to Holder with respect thereto and neither Parent nor any of its Affiliates is making any representation or warranty as to the tax treatment of the Contribution. Holder acknowledges and agrees that he, she or it has consulted with his, her or its own advisors concerning such matters and shall be responsible for making his, her or its own independent investigation and appraisal of the transactions contemplated by this Agreement, and neither Parent nor any of its Affiliates or Representatives shall have responsibility or liability to Holder with respect thereto.
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Section 5. Governing Law. To the maximum extent permitted by Applicable Law, this Agreement and all claims or causes of action (whether in contract, tort or otherwise) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance of this Agreement shall be governed and construed in accordance with the laws of the State of Delaware, without regard to principles of conflicts of law.
Section 6. Specific Performance; Submission to Jurisdiction; Waiver of Jury Trial.
6.1 Specific Performance. The parties hereto agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with its terms, and that monetary damages, even if available, would not be an adequate remedy therefor. Accordingly, the parties hereto agree that the parties shall be entitled to an injunction or injunctions, or any other appropriate form of equitable relief, to prevent breaches or threatened breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof, without the necessity of proving the inadequacy of money damages as a remedy (and each party hereby waives any requirement for the securing or posting of any bond in connection with such remedy), in addition to any other remedy to which they are entitled at law or in equity. Each party agrees not to assert that a remedy of monetary damages would provide an adequate remedy for any such breach. The parties further agree that nothing contained in this Section 6.1 shall require any party to institute any Legal Action for (or limit any party’s right to institute any Legal Action for) specific performance under this Section 6.1, nor shall the commencement of any Legal Action pursuant to this Section 6.1 or anything contained in this Section 6.1 restrict or limit any party’s right to pursue any other remedies under this Agreement that may be available then or thereafter.
6.2 Submission to Jurisdiction. Each party hereto agrees that this Agreement has been entered into by the parties hereto in express reliance upon 6 Del. C. § 2708. Each of the parties, to the maximum extent permitted by Applicable Law, (a) irrevocably submits to the personal jurisdiction of any state or federal court sitting in the state of Delaware, as well as to the jurisdiction of all courts to which an appeal may be taken from such courts, in any suit, action or proceeding arising out of or relating to this Agreement, (b) agrees that all claims in respect of such suit, action or proceeding shall be brought, heard and determined exclusively in the Delaware Court of Chancery (provided that, in the event that subject matter jurisdiction is unavailable in that court, then all such claims shall be brought, heard and determined exclusively in any other state or federal court sitting in the state of Delaware), (c) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from such court, (d) agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court, and (e) expressly waives, and agrees not to plead or to make any claim that any such action or proceeding is subject (in whole or in part) to a jury trial, (f) agrees (1) to the extent such party is not otherwise subject to service of process in the State of Delaware, to appoint and maintain an agent in the State of Delaware as such party’s agent for acceptance of legal process, and (2) that, to the fullest extent permitted by applicable law, service of process may also be made on such party by prepaid certified mail with a proof of mailing receipt validated by the United States Postal Service constituting evidence of valid service, and that service made pursuant to (f)(1) or (2) above shall, to the fullest extent permitted by applicable law, have the same legal force and effect as if served upon such party personally within the State of Delaware and (g) waives, to the fullest extent permitted by Applicable Law, any objection 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 brought in any such court has been brought in an inconvenient forum. For purposes of implementing the parties’ agreement to appoint and maintain an agent for service of process in the State of Delaware, each such party that has not as of the date hereof already duly appointed such an agent in Delaware does hereby appoint Universal Registered Agents, Inc. as such agent. Each of the parties waives any defense of inconvenient forum to the maintenance of any action or proceeding brought in accordance with this paragraph. Each of the parties further consents and agrees that, to the maximum extent permitted by Applicable Law, process in any suit, action or proceeding may be served on such party in accordance with the notice provisions of Section 7 of this Agreement.
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6.3 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATION OF THIS WAIVER, (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) EACH OTHER PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 7. Notices. All notices, requests and other communications to any party hereunder shall be in writing (including electronic mail (“e-mail”) transmission), so long as a receipt of such e-mail is requested and received (other than any automatically generated reply) and shall be given,
(a) If to Parent, to:
Poseidon Acquisition Corp
Trust Company Complex
Ajeltake Road, Ajeltake Island
Majuro, Marshal Islands MH96960
Attention: David L. Sokol
Email:
with copies (which shall not constitute notice) to:
Honigman LLP
2290 First National Building
600 Woodward Avenue
Detroit, MI 48226
Attention: Tracy Larsen; Jeff Kuras; Barbara Kaye
Email:
and
Latham & Watkins LLP
1271 Avenue of the Americas
New York, NY 10020
Attention: David Kurzweil
Email:
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and
Torys LLP
1114 Avenue of the Americas, 23rd Floor
New York, NY 10036
Attention: Michael Horwitz
Email:
and
K&L Gates LLP
925 Fourth Avenue, Suite 2900
Seattle, WA 98104
Attention: Stephan Coonrod; Christopher H. Cunningham; Chris Bellavia
Email:
(b) If to Holder, to:
Washington Corporations
P.O. Box 16630
101 International Way
Missoula, MT 59808
Attention: Jerry Lemon
Email:
with a copy (which shall not constitute notice) to::
K&L Gates LLP
925 Fourth Avenue, Suite 2900
Seattle, WA 98104
Attention: Stephan Coonrod; Christopher H. Cunningham; Christopher J. Bellavia
Email:
Section 8. Assignment. No party shall have the right or the power to assign or delegate any provision of this Agreement except with the prior written consent of Parent (which shall require the consent of each Majority Investor), in the case of an assignment or delegation by Holder, or with the prior written consent of Holder and each Majority Investor, in the case of an assignment or delegation by Parent. Except as provided in the preceding sentence and in Section 15, this Agreement shall be binding upon and shall inure to the benefit of the parties’ respective successors, assigns, executors and administrators; provided, however, that the Special Committee (on behalf the Company) and each of the other parties to the JBA (other than Holder) are each hereby made an express third party beneficiary hereof with full power and authority for purposes of this Section 8, Section 11 and Section 14 (as applicable), as well as to specifically enforce the obligations set forth in this Agreement pursuant to Section 6.1 against Holder and Parent (which right of specific performance may be sought directly against Holder or indirectly through Parent), including to consummate the Contribution in accordance with the terms hereof.
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Section 9. Certain Tax Matters. To the fullest extent permitted by applicable law, for federal income tax purposes, the parties hereto shall (a) treat the Contribution and the Cash Equity Capitalization, taken together with certain related transfers of property by the Members and their affiliates in exchange for Parent Common Stock and/or other securities of Parent as a transfer described in Section 351 of the Code that will not result in the recognition of gain or income under Section 367(a)(1) or (b) of the Code and the Treasury Regulations thereunder (other than by a Member that is required to file a “gain recognition agreement” under Treasury Regulations Section 1.367(a)-3(b)(1) to qualify for such nonrecognition and that fails to properly make such required filing); and (b) file all Tax Returns in a manner consistent with such intended tax treatment. Holder agrees to provide to Parent all information reasonably necessary for Parent to prepare and file Tax Returns with respect to the Contribution, including any information with respect to such Holder described in Treasury Regulation Section 1.351-3(b), if applicable.
Section 10. Counterparts. This Agreement may be executed in counterparts, including by facsimile or other means of electronic transmission (such as by electronic mail in “.pdf” form), each of which shall be deemed an original and all of which taken together, shall constitute one and the same document.
Section 11. Entire Agreement. Without limiting the JBA, any ECL delivered by Holder, the Merger Agreement or any other Transaction Document, this Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof, and this Agreement may be amended only in a writing executed by the parties hereto (with the consent of each Majority Investor and the Special Committee (on behalf of the Company)). The parties hereto agree and acknowledge that the existence and terms of the JBA shall have no effect on, and in no manner impair or alter, the Company’s rights under this Agreement.
Section 12. No Fiduciary Responsibilities. Notwithstanding any provision of this Agreement to the contrary, this Agreement shall apply to Holder solely in its capacity as a shareholder of the Company and not in any other capacity, and nothing in this Agreement shall limit, restrict or affect the rights and obligations of Holder or any of its Affiliates or Representatives from taking any action in his or her capacity as a director, officer or employee of the Company, whether in connection with the Merger Agreement or otherwise, and no action or omissions by any such Persons in his or her capacity as a director, officer or employee of the Company shall be deemed to constitute a breach of any provision of this Agreement.
Section 13. Effect of Adverse Recommendation Change. Until the termination of this Agreement in accordance with its terms, the obligations of Holder shall apply whether or not the Board of Directors (or any committee thereof) has effected an Adverse Recommendation Change.
Section 14. Termination of Agreement. This Agreement may be terminated by the mutual written consent of Parent (with the consent of each Majority Investor), the Special Committee (on behalf of the Company) and Holder, and this Agreement shall terminate automatically, without any action of the parties hereto, upon the earlier to occur of (a) the Closing, and (b) the valid termination of the Merger Agreement. Upon any such termination, this Agreement shall not have any further force and effect and no party shall have any further liability or obligation under this Agreement, whether in contract or in tort or any other theory of liability whatsoever. If this Agreement is validly terminated pursuant to this Section 14, this Agreement shall become void and of no effect; provided that the Surviving Provisions (as defined in the JBA), this Section 14 and Section 15 (together with Sections 5, 6 and 7 to extent relevant to said Sections 14 and 15) shall survive such termination to the extent set forth therein.
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Section 15. Non-Recourse. Notwithstanding anything to the contrary that may be expressed or implied in this Agreement or any document or instrument delivered contemporaneously herewith, and notwithstanding the fact that Holder or any of its successors or permitted assignees may be a partnership, limited liability company or similar domestic or foreign entity, Parent by its acceptance of the benefits of this Agreement, covenants, agrees and acknowledges that no person other than Holder and its successors and permitted assignees shall have any obligation hereunder and that it has no rights of recovery against, and no recourse hereunder or under this Agreement, the Merger Agreement, the JBA, Holder’s ECL (if any) or any documents or instruments delivered in connection herewith or therewith shall be had against, any former, current or future director, officer, agent, Affiliate, manager or employee of Holder (or any of its successors or assignees), against any former, current or future general or limited partner, manager, equityholder or member of Holder (or any of its successors or assignees) or any Affiliate or related party thereof or against any former, current or future director, officer, agent, employee, Affiliate, related party, assignee, general or limited partner, equityholder, manager or member of any of the foregoing (each, other than Holder and its successors and permitted assignees, a “Holder Affiliate”), whether by or through attempted piercing of the corporate veil, by or through a claim by or on behalf of Holder against the Holder Affiliates, by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable law, or otherwise; provided that (and notwithstanding anything to the contrary provided herein or in any document or instrument delivered contemporaneously herewith), (A) nothing herein shall limit the rights of each of the other parties to the JBA (other than Holder) against Holder under the JBA pursuant to the terms and conditions of the JBA, and (B) nothing herein shall limit the rights of each of the other parties to the JBA (other than Holder) and Parent against Holder (or with respect to any assignee hereof) as a third-party beneficiary under Holder’s ECL (if any) pursuant to the terms and conditions thereof. The parties hereto expressly agree and acknowledge that no liability whatsoever shall attach to, be imposed on, or otherwise be incurred by any Holder Affiliate, as such, for any obligations of Holder under this Agreement or the transactions contemplated hereby, under any documents or instruments delivered in connection herewith, or for any claim based on, in respect of, or by reason of, such obligations or their creation.
[Signature page follows]
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IN WITNESS WHEREOF, the parties have hereby executed this Agreement as of the date first above written.
| PARENT: | ||
| POSEIDON ACQUISITION CORP. | ||
| By: | /s/ David L. Sokol | |
| Name: David L. Sokol | ||
| Title: Chairman | ||
| HOLDER: | ||
| DEEP WATER HOLDINGS, LLC | ||
| By: | /s/ Jerry Lemon | |
| Name: Jerry Lemon | ||
| Title: President | ||
| THE KYLE ROY WASHINGTON 2014 TRUST | ||
| By: | /s/ Christopher Hawks | |
| Name: Christopher Hawks | ||
| Title: President, Copper Lion, Inc., Trustee | ||
| KYLE ROY WASHINGTON 2005 IRREVOCABLE TRUST, created under Agreement dated July 15, 2005, including all subsequent amendments, modifications and restatements | ||
| By: | /s/ Christopher Hawks | |
| Name: Christopher Hawks | ||
| Title: President, Copper Lion, Inc., Trustee | ||
| THE KEVIN LEE WASHINGTON 2014 TRUST | ||
| By: | /s/ Christopher Hawks | |
| Name: Christopher Hawks | ||
| Title: President, Copper Lion, Inc., Trustee | ||
Exhibit A
Capitalization1
| Investors | Implied Shares in Parent | Ownership Percentage | ||||||
| Ocean Network Express Pte. Ltd. | 88,194,568 | 28.9 | % | |||||
| Fairfax Financial Holdings Limited2 | 131,759,155 | 43.2 | % | |||||
| Deep Water Holdings, LLC, The Kyle Roy Washington 2014 Trust, Kyle Roy Washington 2005 Irrevocable Trust u/a/d July 15, 2005, and The Kevin Lee Washington 2014 Trust | 74,608,052 | 24.4 | % | |||||
| David L. Sokol | 8,889,884 | 2.9 | % | |||||
| Bing Chen3 | 1,841,316 | 0.6 | % | |||||
| Totals4 | 305,292,975 | 100.0 | % | |||||
1 Based on capitalization as set forth in Section 4.05 of the Merger Agreement.
2 Assumes no Holdback Shares are issued prior to the Merger.
3 Assumes that Bing Chen exchanges 750,000 Company Common Shares in the Merger for the Merger Consideration. In addition, does not account for any future equity grants prior to the Merger that Bing Chen would rollover (expected to be 1,000,000 Company Common Shares subject to vesting and forfeiture).
4 Assumes that all Company RSUs and Company Phantom Shares are cashed out prior to the Closing.
Exhibit 99.11
ROLLOVER AND CONTRIBUTION AGREEMENT
This ROLLOVER AND CONTRIBUTION AGREEMENT (this “Agreement”), dated as of October 31, 2022 is entered into by and between the party identified on the signature page hereto as Holder (“Holder”) and Poseidon Acquisition Corp., a Marshall Islands corporation (“Parent”).
RECITALS
WHEREAS, Parent, Poseidon Merger Sub, Inc., a Marshall Islands corporation and direct wholly-owned subsidiary of Parent (“Merger Sub”), and Atlas Corp., a Marshall Islands corporation (the “Company”), have entered into that certain Agreement and Plan of Merger, dated as of October 31, 2022 (the “Merger Agreement”). Capitalized terms used herein and not otherwise defined having the meanings ascribed to such terms in the Merger Agreement;
WHEREAS, Holder owns Company Common Shares;
WHEREAS, on the terms and subject to the conditions of this Agreement, Holder desires, on the date on which the Merger is consummated (the “Merger Closing Date”) but before the Effective Time, to contribute (the “Contribution”) to Parent 7,000,000 Company Common Shares (“Rollover Shares”) and any other Company Common Shares acquired by Holder after the date hereof (collectively with the Rollover Shares, the “Rollover Equity”) in exchange for the issuance by Parent to Holder of a number of newly issued shares of common stock, par value $0.0001 per share, of Parent (the “Parent Common Stock”) equal to the number of shares of Rollover Equity contributed to Parent (the “Exchange Shares”); and Parent desires, on such date, to issue to Holder such Exchange Shares in exchange for Holder’s contribution to Parent of the Rollover Equity;
WHEREAS, at or immediately prior to the consummation of the Contribution, Ocean Network Express Pte. Ltd. and/or certain of its wholly-owned subsidiaries (collectively, “Oasis”) and certain other investors (Oasis, and such other investors collectively, the “Cash Investors”) will capitalize Parent with cash up to the amount set forth in the equity commitment letters (the “ECLs”) executed and delivered by such Cash Investors to Parent at or prior to the Closing (the “Cash Equity Capitalization”), and Parent will issue to the Cash Investors Parent Common Stock;
WHEREAS, in connection with the consummation of the transactions contemplated by this Agreement and the Merger Agreement, Parent, Holder, the Cash Investors and any other Persons who will hold shares of Parent Common Stock will enter into a stockholder agreement in a form consistent with that attached as Exhibit A (the “Parent Stockholder Agreement”) to that certain amendment dated as of the date hereof to the Joint Bidding Agreement, dated as of August 4, 2022, by and among Holder, Oasis and the other parties thereto (in the form provided to the Company prior to the date hereof, the “JBA”); and
WHEREAS, for United States federal income tax purposes, it is intended that the Contribution and the Cash Equity Capitalization, taken together with certain related transfers of property by the Members and their affiliates in exchange for Parent Common Stock and/or other securities of Parent, will qualify as a transfer described in Section 351of the Internal Revenue Code of 1986, as amended (the “Code”), that will not result in the recognition of gain or income under Section 367(a)(1) or (b) of the Code and the Treasury Regulations thereunder (other than by a Member that is required to file a “gain recognition agreement” under Treasury Regulations Section 1.367(a)-3(b)(1) to qualify for such nonrecognition and that fails to properly make such required filing).
NOW, THEREFORE, in order to implement the foregoing and in consideration of the mutual representations, warranties, covenants and agreements contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
Section 1. Contribution.
1.1 Contribution of the Rollover Equity in Exchange for the Exchange Shares. On the terms and subject to the conditions set forth herein, (i) Holder agrees, at the Closing (as defined below) prior to the Effective Time and immediately following the consummation of the Cash Equity Capitalization, to contribute to Parent the Rollover Equity, free and clear of any and all Liens (other than restrictions on the right to sell or otherwise dispose of such shares imposed by state and federal securities laws), in exchange for the issuance by Parent to Holder of the Exchange Shares and (ii) Parent agrees, at the Closing, to issue to Holder the Exchange Shares in exchange for the contribution by Holder to Parent of the Rollover Equity.
1.2 Closing. The closing (the “Closing”) of the Contribution shall occur on the Merger Closing Date but prior to the Effective Time and immediately after the Cash Equity Capitalization. The Closing shall take place through the electronic exchange of documents.
1.3 Reserved.
1.4 Conditions to Closing. The consummation of the Contribution shall be subject to the satisfaction of the following conditions unless waived in writing by Parent and Holder of the following conditions:
(i) No Law. No Order or Applicable Law, whether temporary, preliminary or permanent, shall have been issued, entered, promulgated or enacted by any Governmental Authority of competent jurisdiction prohibiting, preventing, rendering illegal or enjoining the consummation of any of the transactions contemplated by this Agreement and shall remain in effect.
(ii) Merger Agreement. Either (a) the conditions set forth in Article 9 of the Merger Agreement shall have been satisfied or waived by the party entitled to the benefit of such conditions (which, in the case of Parent, shall require the unanimous consent of each Major Investor) and the contemporaneous consummation of the closing pursuant to Section 2.01(b) of the Merger Agreement shall occur subject to the consummation of the Contribution or (b) a final, non-appealable and binding order or judgment awarding specific performance shall have been entered by a court of competent jurisdiction to cause Parent to consummate the closing pursuant to Section 11.13(a) and (b) of the Merger Agreement.
1.5 Parent Deliveries. At the Closing, Parent shall deliver to Holder (i) stock certificates representing the Exchange Shares and (ii) the Parent Stockholder Agreement duly executed by Parent and the other stockholders of Parent in accordance with the JBA.
1.6 Holder Deliveries. At the Closing, Holder shall deliver to Parent (i) stock certificates evidencing the Rollover Equity, endorsed in blank for transfer or affidavits of loss (together with duly executed stock powers) in each case in form and substance reasonably satisfactory to Parent (ii) the Parent Stockholder Agreement duly executed by Holder in accordance with the JBA, and (iii) an Internal Revenue Service Form W-9.
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Section 2. Representations and Warranties of Parent. Parent hereby represents and warrants to Holder as of the date hereof and as of the Closing as follows:
2.1 Organization. Parent is a corporation, duly organized, validly existing and in good standing under the laws of the Marshall Islands, having full corporate power and authority to own its properties and to carry on its business as conducted.
2.2 Authority; Execution and Delivery. Parent has the requisite corporate or similar power and authority to enter into and deliver this Agreement and any other agreements or instruments executed by it in connection herewith, perform its obligations herein or therein, and consummate the transactions contemplated hereby or thereby. Parent has duly executed and delivered this Agreement and any other agreements or instruments executed by it in connection herewith, and, assuming the execution and delivery by Holder, this Agreement and such other executed agreements or instruments are a valid, legal and binding obligation of Parent, enforceable against Parent in accordance with their terms, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and subject to general principles of equity (regardless of whether such enforcement is considered in a proceeding at law or at equity).
2.3 Parent Common Stock Duly Authorized; Capitalization. All of the shares of Parent Common Stock to be issued to Holder under this Agreement, when issued and delivered in accordance with the terms of this Agreement, will be duly authorized, validly issued, fully paid and non-assessable and free and clear of any Liens (other than those arising under the Parent Stockholder Agreement and restrictions imposed by applicable securities laws). The anticipated pro forma capitalization of the Company as of the Closing of the Merger (assuming the rollover by certain other members of management as set forth therein) is set forth on Exhibit A hereto (which the parties hereto acknowledge is subject to change based on the number of shares of Company Common Shares, Company RSUs, Company Options, Company Restricted Shares and Company Phantom Shares outstanding immediately prior to the Effective Time and the payments required at or after the Effective Time to the holders thereof), and there will be no options, warrants or other securities exercisable or convertible into capital stock of Parent at such time except as set forth on Exhibit A hereto or as otherwise mutually agreed to by the Holder and the Cash Investors.
2.4 No Conflicts; No Consents. The execution and delivery of this Agreement by Parent, the performance by Parent of its obligations hereunder, and the consummation by Parent of the transactions contemplated hereby do not and will not (a) conflict with Parent’s certificate of incorporation or bylaws, (b) materially violate or materially conflict with any Applicable Law applicable to Parent or any of Parent’s assets or properties, except as set forth on Section 4.03 of the Company Disclosure Schedule, or (c) violate or conflict with in any material respect, result in any material breach of, or constitute a material default (or event which with the giving of notice or lapse of time, or both, would become a material default) under, any agreement to which Parent is a party or by which any of its assets or properties is bound. No consent, approval, authorization, license, order or permit of, or declaration, filing or registration with, or notification to, any Governmental Authority or any other Person is required to be made or obtained by Parent in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, except as set forth on Section 4.03 of the Company Disclosure Schedule.
2.5 No Litigation. As of the date of this Agreement, there is no Legal Action pending or, to Parent’s knowledge, threatened against Parent that would or seeks to materially delay or prevent the consummation of the transactions contemplated hereby. As of the date of this Agreement, Parent is not subject to any continuing order of, consent decree, settlement agreement or other similar written agreement with, or, to Parent’s knowledge, continuing investigation by, any Governmental Authority, or any Applicable Law that would or seeks to materially delay or prevent the consummation of the transactions contemplated hereby.
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2.6 No Other Representation. Parent has received no other representations or warranties from Holder or any other person acting on behalf of the Holder, other than those contained in this Agreement and any other agreements or instruments executed by or on behalf of Holder in connection herewith.
Section 3. Representations and Warranties of Holder. Holder hereby represents and warrants to Parent as of the date hereof and as of the Closing as follows:
3.1 Organization. Holder (if not an individual) is a legal entity, duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, having full legal entity power and authority to own its properties and to carry on its business as conducted.
3.2 Ownership of the Rollover Shares. Holder represents and warrants that Holder (i) owns and holds good and valid title to all of the Rollover Shares set forth opposite Holder’s name on Schedule 1 to the JBA, free and clear of any liens or other restrictions on title that would prevent Holder from entering into this Agreement or consummating the Merger, (ii) Holder has sole voting power, power of disposition, and power to issue instructions with respect to the Rollover Shares set forth opposite Holder’s name on Schedule 1 to the JBA and power to agree to all of the matters applicable to Holder set forth in this Agreement, in each case, over all of the Rollover Shares set forth opposite Holder’s name on Schedule 1, and (iii) Holder owns no other securities (including debt securities) of the Company or any of its subsidiaries or securities that are convertible, exercisable or exchangeable for such securities other than the Rollover Shares.
3.3 Execution and Delivery. This Agreement has been duly executed and delivered by Holder, and, assuming the due authorization, execution and delivery by Parent, this Agreement is a valid, legal and binding obligation of Holder, enforceable against Holder in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and subject to general principles of equity (regardless of whether such enforcement is considered in a proceeding at law or at equity).
3.4 Holder Intent. Holder is acquiring the Exchange Shares for Holder’s own account as principal, for investment purposes only, not for any other person or entity and not for the purposes of resale or distribution.
3.5 Financial Status. Holder is an “accredited investor” as such term is defined in Regulation D promulgated under the Securities Act. Holder is able to bear the economic risk of an investment in shares of Parent Common Stock for an indefinite period of time, has adequate means of providing for its, his or her current financial needs and personal contingencies, has no need for liquidity in the investment in shares of Parent Common Stock, understands that Holder may not be able to liquidate its, his or her investment in Parent in an emergency, if at all, and can afford a complete loss of the investment.
3.6 No Other Representation. Holder has received no other representations or warranties from Parent or any other person acting on behalf of Parent, other than those contained in this Agreement, the JBA, the Voting and Support Agreements and any other agreements or instruments executed by or on behalf of Parent or its Affiliates in connection herewith.
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3.7 No Conflicts; No Consents. The execution and delivery of this Agreement by Holder, the performance by Holder of its obligations hereunder and the consummation by Holder of the transactions contemplated hereby do not and will not (a) materially violate or materially conflict with any Applicable Law applicable to Holder or any of Holder’s assets or properties or (b) violate or conflict with in any material respect, result in any material breach of, or constitute a material default (or event which with the giving of notice or lapse of time, or both, would become a material default) under, any agreement to which Holder is a party or by which any of its assets or properties is bound. No consent, approval, authorization, license, order or permit of, or declaration, filing or registration with, or notification to, any Governmental Authority or any other Person is required to be made or obtained by Holder in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby.
3.8 No Litigation. As of the date of this Agreement, there is no Legal Action pending or, to Holder’s knowledge, threatened against Holder that would or seeks to materially delay or prevent the consummation of the transactions contemplated hereby. As of the date of this Agreement, Holder is not subject to any continuing order of, consent decree, settlement agreement or other similar written agreement with, or, to Holder’s knowledge, continuing investigation by, any Governmental Authority, or any Applicable Law that would or seeks to materially delay or prevent the consummation of the transactions contemplated hereby.
Section 4. Agreements and Acknowledgements of Holder. Holder hereby agrees and acknowledges as follows:
4.1 No Registration. Holder understands and agrees that the Exchange Shares are being acquired by Holder in a transaction not involving any public offering within the meaning of the Securities Act, in reliance on an exemption therefrom. Holder understands that the Exchange Shares have not been, and will not be, approved or disapproved by the U.S. Securities and Exchange Commission or by any other foreign, federal or state agency, and that no such agency has passed on the accuracy or adequacy of disclosures made to Holder by Parent. No foreign, federal or state governmental agency has passed on or made any recommendation or endorsement of the Exchange Shares or an investment in Parent.
4.2 Limitations on Disposition and Resale. Holder understands and acknowledges that the Exchange Shares have not been and will not be registered under the Securities Act, or the securities laws of any state or foreign jurisdiction and, unless the Exchange Shares are so registered, they may not be offered, sold, transferred or otherwise disposed of except pursuant to an effective registration statement under the Securities Act or an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and any applicable securities laws of any state or foreign jurisdiction. Holder recognizes that there will not be any public trading market for Parent Common Stock, and as a result, Holder may be unable to sell or dispose of its interest in Parent.
4.3 Newly Formed Entity. Holder recognizes that Parent was only formed in connection with the transactions contemplated by the Merger Agreement and the JBA and, accordingly, has no financial or operating history and that the investment in Parent is extremely speculative and involves a high degree of risk.
4.4 Sole Consideration. Holder acknowledges and agrees that the Exchange Shares shall constitute the sole consideration that Holder is entitled to receive in exchange for Holder’s Rollover Equity.
4.5 Independent Investigation. Holder acknowledges and agrees that neither Parent nor any of its Affiliates or Representatives are advising Holder as to any tax, legal, investment, accounting or regulatory matters in any jurisdiction, neither Parent nor any of its Affiliates or Representatives shall have any responsibility or liability to Holder with respect thereto and neither Parent nor any of its Affiliates is making any representation or warranty as to the tax treatment of the Contribution. Holder acknowledges and agrees that he, she or it has consulted with his, her or its own advisors concerning such matters and shall be responsible for making his, her or its own independent investigation and appraisal of the transactions contemplated by this Agreement, and neither Parent nor any of its Affiliates or Representatives shall have responsibility or liability to Holder with respect thereto.
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Section 5. Governing Law. To the maximum extent permitted by Applicable Law, this Agreement and all claims or causes of action (whether in contract, tort or otherwise) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance of this Agreement shall be governed and construed in accordance with the laws of the State of Delaware, without regard to principles of conflicts of law.
Section 6. Specific Performance; Submission to Jurisdiction; Waiver of Jury Trial.
6.1 Specific Performance. The parties hereto agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with its terms, and that monetary damages, even if available, would not be an adequate remedy therefor. Accordingly, the parties hereto agree that the parties shall be entitled to an injunction or injunctions, or any other appropriate form of equitable relief, to prevent breaches or threatened breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof, without the necessity of proving the inadequacy of money damages as a remedy (and each party hereby waives any requirement for the securing or posting of any bond in connection with such remedy), in addition to any other remedy to which they are entitled at law or in equity. Each party agrees not to assert that a remedy of monetary damages would provide an adequate remedy for any such breach. The parties further agree that nothing contained in this Section 6.1 shall require any party to institute any Legal Action for (or limit any party’s right to institute any Legal Action for) specific performance under this Section 6.1, nor shall the commencement of any Legal Action pursuant to this Section 6.1 or anything contained in this Section 6.1 restrict or limit any party’s right to pursue any other remedies under this Agreement that may be available then or thereafter.
6.2 Submission to Jurisdiction. Each party hereto agrees that this Agreement has been entered into by the parties hereto in express reliance upon 6 Del. C. § 2708. Each of the parties, to the maximum extent permitted by Applicable Law, (a) irrevocably submits to the personal jurisdiction of any state or federal court sitting in the state of Delaware, as well as to the jurisdiction of all courts to which an appeal may be taken from such courts, in any suit, action or proceeding arising out of or relating to this Agreement, (b) agrees that all claims in respect of such suit, action or proceeding shall be brought, heard and determined exclusively in the Delaware Court of Chancery (provided that, in the event that subject matter jurisdiction is unavailable in that court, then all such claims shall be brought, heard and determined exclusively in any other state or federal court sitting in the state of Delaware), (c) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from such court, (d) agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court, and (e) expressly waives, and agrees not to plead or to make any claim that any such action or proceeding is subject (in whole or in part) to a jury trial, (f) agrees (1) to the extent such party is not otherwise subject to service of process in the State of Delaware, to appoint and maintain an agent in the State of Delaware as such party’s agent for acceptance of legal process, and (2) that, to the fullest extent permitted by applicable law, service of process may also be made on such party by prepaid certified mail with a proof of mailing receipt validated by the United States Postal Service constituting evidence of valid service, and that service made pursuant to (f)(1) or (2) above shall, to the fullest extent permitted by applicable law, have the same legal force and effect as if served upon such party personally within the State of Delaware and (g) waives, to the fullest extent permitted by Applicable Law, any objection 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 brought in any such court has been brought in an inconvenient forum. Each of the parties waives any defense of inconvenient forum to the maintenance of any action or proceeding brought in accordance with this paragraph. Each of the parties further consents and agrees that, to the maximum extent permitted by Applicable Law, process in any suit, action or proceeding may be served on such party in accordance with the notice provisions of Section 7 of this Agreement.
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6.3 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATION OF THIS WAIVER, (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) EACH OTHER PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 7. Notices. All notices, requests and other communications to any party hereunder shall be in writing (including electronic mail (“e-mail”) transmission), so long as a receipt of such e-mail is requested and received (other than any automatically generated reply) and shall be given,
(a) If to Parent, to:
Poseidon Acquisition Corp.
Trust Company Complex
Ajeltake Road, Ajeltake Island
Majuro, Marshall Islands MH96960
Attention: David L. Sokol
Email:
with copies (which shall not constitute notice) to:
Honigman LLP
2290 First National Building
600 Woodward Avenue
Detroit, MI 48226
Attention: Tracy Larsen; Jeff Kuras; Barbara Kaye
Email:
and
Latham & Watkins LLP
1271 Avenue of the Americas
New York, NY 10020
Attention: David Kurzweil
Email:
and
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Torys LLP
1114 Avenue of the Americas, 23rd Floor
New York, NY 10036
Attention: Michael Horwitz
Email:
and
K&L Gates LLP
925 Fourth Avenue, Suite 2900
Seattle, WA 98104
Attention: Stephan Coonrod; Christopher H. Cunningham; Chris Bellavia
Email:
(b) If to Holder, to:
David L Sokol
Attention: David L. Sokol
Email:
with copies (which shall not constitute notice) to:
Honigman LLP
2290 First National Building
600 Woodward Avenue
Detroit, MI 48226
Attention: Tracy Larsen; Jeff Kuras; Barbara Kaye
Email:
Section 8. Assignment. No party shall have the right or the power to assign or delegate any provision of this Agreement except with the prior written consent of Parent (which shall require the consent of each Majority Investor), in the case of an assignment or delegation by Holder, or with the prior written consent of Holder and each Majority Investor, in the case of an assignment or delegation by Parent. Except as provided in the preceding sentence and in Section 15, this Agreement shall be binding upon and shall inure to the benefit of the parties’ respective successors, assigns, executors and administrators; provided, however, that the Special Committee (on behalf the Company) and each of the other parties to the JBA (other than Holder) are each hereby made an express third party beneficiary hereof with full power and authority for purposes of this Section 8, Section 11 and Section 14 (as applicable), as well as to specifically enforce the obligations set forth in this Agreement pursuant to Section 6.1 against Holder and Parent (which right of specific performance may be sought directly against Holder or indirectly through Parent), including to consummate the Contribution in accordance with the terms hereof.
Section 9. Certain Tax Matters. To the fullest extent permitted by applicable law, for federal income tax purposes, the parties hereto shall (a) treat the Contribution and the Cash Equity Capitalization, taken together with certain related transfers of property by the Members and their affiliates in exchange for Parent Common Stock and/or other securities of Parent as a transfer described in Section 351 of the Code that will not result in the recognition of gain or income under Section 367(a)(1) or (b) of the Code and the Treasury Regulations thereunder (other than by a Member that is required to file a “gain recognition agreement” under Treasury Regulations Section 1.367(a)-3(b)(1) to qualify for such nonrecognition and that fails to properly make such required filing); and (b) file all Tax Returns in a manner consistent with such intended tax treatment. Holder agrees to provide to Parent all information reasonably necessary for Parent to prepare and file Tax Returns with respect to the Contribution, including any information with respect to such Holder described in Treasury Regulation Section 1.351-3(b), if applicable.
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Section 10. Counterparts. This Agreement may be executed in counterparts, including by facsimile or other means of electronic transmission (such as by electronic mail in “.pdf” form), each of which shall be deemed an original and all of which taken together, shall constitute one and the same document.
Section 11. Entire Agreement. Without limiting the JBA, any ECL delivered by Holder, the Merger Agreement or any other Transaction Document, this Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof, and this Agreement may be amended only in a writing executed by the parties hereto (with the consent of each Majority Investor and the Special Committee (on behalf of the Company)). The parties hereto agree and acknowledge that the existence and terms of the JBA shall have no effect on, and in no manner impair or alter, the Company’s rights under this Agreement.
Section 12. No Fiduciary Responsibilities. Notwithstanding any provision of this Agreement to the contrary, this Agreement shall apply to Holder solely in its capacity as a shareholder of the Company and not in any other capacity, and nothing in this Agreement shall limit, restrict or affect the rights and obligations of Holder or any of its Affiliates or Representatives from taking any action in his or her capacity as a director, officer or employee of the Company, whether in connection with the Merger Agreement or otherwise, and no action or omissions by any such Persons in his or her capacity as a director, officer or employee of the Company shall be deemed to constitute a breach of any provision of this Agreement.
Section 13. Effect of Adverse Recommendation Change. Until the termination of this Agreement in accordance with its terms, the obligations of Holder shall apply whether or not the Board of Directors (or any committee thereof) has effected an Adverse Recommendation Change.
Section 14. Termination of Agreement. This Agreement may be terminated by the mutual written consent of Parent (with the consent of each Majority Investor), the Special Committee (on behalf of the Company) and Holder, and this Agreement shall terminate automatically, without any action of the parties hereto, upon the earlier to occur of (a) the Closing, and (b) the valid termination of the Merger Agreement. Upon any such termination, this Agreement shall not have any further force and effect and no party shall have any further liability or obligation under this Agreement, whether in contract or in tort or any other theory of liability whatsoever. If this Agreement is validly terminated pursuant to this Section 14, this Agreement shall become void and of no effect; provided that the Surviving Provisions (as defined in the JBA), this Section 14 and Section 15 (together with Sections 5, 6 and 7 to extent relevant to said Sections 14 and 15) shall survive such termination to the extent set forth therein.
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Section 15. Non-Recourse. Notwithstanding anything to the contrary that may be expressed or implied in this Agreement or any document or instrument delivered contemporaneously herewith, and notwithstanding the fact that Holder or any of its successors or permitted assignees may be a partnership, limited liability company or similar domestic or foreign entity, Parent by its acceptance of the benefits of this Agreement, covenants, agrees and acknowledges that no person other than Holder and its successors and permitted assignees shall have any obligation hereunder and that it has no rights of recovery against, and no recourse hereunder or under this Agreement, the Merger Agreement, the JBA, Holder’s ECL (if any) or any documents or instruments delivered in connection herewith or therewith shall be had against, any former, current or future director, officer, agent, Affiliate, manager or employee of Holder (or any of its successors or assignees), against any former, current or future general or limited partner, manager, equityholder or member of Holder (or any of its successors or assignees) or any Affiliate or related party thereof or against any former, current or future director, officer, agent, employee, Affiliate, related party, assignee, general or limited partner, equityholder, manager or member of any of the foregoing (each, other than Holder and its successors and permitted assignees, a “Holder Affiliate”), whether by or through attempted piercing of the corporate veil, by or through a claim by or on behalf of Holder against the Holder Affiliates, by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable law, or otherwise; provided that (and notwithstanding anything to the contrary provided herein or in any document or instrument delivered contemporaneously herewith), (A) nothing herein shall limit the rights of each of the other parties to the JBA (other than Holder) against Holder under the JBA pursuant to the terms and conditions of the JBA, and (B) nothing herein shall limit the rights of each of the other parties to the JBA (other than Holder) and Parent against Holder (or with respect to any assignee hereof) as a third-party beneficiary under Holder’s ECL (if any) pursuant to the terms and conditions thereof. The parties hereto expressly agree and acknowledge that no liability whatsoever shall attach to, be imposed on, or otherwise be incurred by any Holder Affiliate, as such, for any obligations of Holder under this Agreement or the transactions contemplated hereby, under any documents or instruments delivered in connection herewith, or for any claim based on, in respect of, or by reason of, such obligations or their creation.
[Signature page follows]
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IN WITNESS WHEREOF, the parties have hereby executed this Agreement as of the date first above written.
| PARENT: | ||
| POSEIDON ACQUISITION CORP. | ||
| By: | /s/ David L. Sokol | |
| Name: David L. Sokol | ||
| Title: Chairman | ||
| HOLDER: | ||
| David L. Sokol | ||
| /s/ David L. Sokol | ||
[Signature Page to Rollover and Contribution Agreement (DS)]
Exhibit A
Capitalization1
| Investors | Implied Shares in Parent | Ownership Percentage | ||||||
| Ocean Network Express Pte. Ltd. | 88,194,568 | 28.9 | % | |||||
| Fairfax Financial Holdings Limited2 | 131,759,155 | 43.2 | % | |||||
| Deep Water Holdings, LLC, The Kyle Roy Washington 2014 Trust, Kyle Roy Washington 2005 Irrevocable Trust u/a/d July 15, 2005, and The Kevin Lee Washington 2014 Trust | 74,608,052 | 24.4 | % | |||||
| David L. Sokol | 8,889,884 | 2.9 | % | |||||
| Bing Chen3 | 1,841,316 | 0.6 | % | |||||
| Totals4 | 305,292,975 | 100.0 | % | |||||
1 Based on capitalization as set forth in Section 4.05 of the Merger Agreement.
2 Assumes no Holdback Shares are issued prior to the Merger.
3 Assumes that Bing Chen exchanges 750,000 Company Common Shares in the Merger for the Merger Consideration. In addition, does not account for any future equity grants prior to the Merger that Bing Chen would rollover (expected to be 1,000,000 Company Common Shares subject to vesting and forfeiture).
4 Assumes that all Company RSUs and Company Phantom Shares are cashed out prior to the Closing.
Exhibit 99.12
October 31, 2022
Poseidon Acquisition Corp.
Attention: David L. Sokol
Email:
| Re: | ONE Equity Commitment Letter |
Ladies and Gentlemen:
This letter agreement (this “letter agreement”) sets forth the commitment of Ocean Network Express Pte. Ltd., a corporation organized under the laws of Singapore (“ONE”), to purchase, directly or indirectly, on the terms and subject to the conditions contained herein, certain equity interests of Poseidon Acquisition Corp., a Marshall Islands corporation (“Parent” or “Bidco”). Reference is made to that certain Agreement and Plan of Merger (as amended, restated, supplemented or otherwise modified from time to time, the “Merger Agreement”), dated as of the date hereof, by and among Atlas Corp., a Marshall Islands corporation (the “Company”), Parent, and Poseidon Merger Sub, Inc., a Marshall Islands corporation and a wholly owned subsidiary of Parent (“Merger Sub”), pursuant to which (i) Merger Sub will be merged with and into the Company, (ii) the separate corporate existence of Merger Sub will thereupon cease and (iii) the Company will continue as the surviving corporation and a wholly-owned (other than with respect to the Designated Company Preferred Shares) Subsidiary of Parent (the “Merger”). Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
Subject to the conditions set forth in this letter agreement, ONE hereby agrees that at the Closing, it will purchase, directly or indirectly, equity securities of Bidco with an aggregate purchase price equal to $1,400,000,000 (such amount, the “ONE Commitment”), the proceeds of which shall be used by Bidco to fund (and fully discharge) a portion of the Merger Consideration and other amounts to be paid with respect to Company RSUs, Company Options, Company Restricted Shares, Company Phantom Shares, other Company equity securities or awards and the Company’s Exchangeable Notes (following the exchange thereof into cash as the exchange consideration) to be paid by Bidco pursuant to the Merger Agreement (the “Bidco Payment Obligations”); provided that (i) to the extent (and only to the extent) that, at the Closing, Parent does not require the full amount of the Total Commitment (as defined below) to fund in full the Bidco Payment Obligations, the ONE Commitment, the DS Commitment (as defined below) and the Washington Family Holdings Commitment (as defined below) shall be reduced on a pro rata basis, and (ii) ONE shall not, under any circumstances, be obligated to contribute (or cause to be contributed) to Bidco more than the ONE Commitment. The proceeds of the ONE Commitment, together with the amounts (the “Washington Family Commitment”) to be paid by Deep Water Holdings, LLC (“Washington Family Holdings”) under the letter agreement dated as of the date hereof between Washington Family Holdings and Parent pursuant to which Washington Family Holdings has agreed to make certain equity investments in Parent (the “Washington Family Holdings ECL”), and the amounts (the “DS Commitment”) to be paid by David Sokol (“DS”) under the letter agreement dated as of the date hereof between DS and Parent pursuant to which DS has agreed to make certain equity investments in Parent (the “DS ECL”) shall collectively constitute the “Total Commitment” for purposes of this letter agreement. Upon the funding of the ONE Commitment, ONE (or a wholly owned, direct or indirect, subsidiary thereof) will acquire Bidco Common Shares (as defined in the JBA (as defined below)), which shall be the same class and type of equity interests of Bidco as FF (as defined in the JBA), Washington Family Holdings and DS (together, the “Rollover Group”) acquire, and at the same price per Bidco Common Share paid, (1) pursuant to the DS ECL and the Washington Family Holdings ECL and (2) in exchange for their Rollover Shares (using the Merger Consideration paid per Company Common Share paid pursuant to the Merger Agreement as the value per Rollover Share).
ONE’s obligation to fund the ONE Commitment is subject to (a) the satisfaction in full or waiver by Parent, on or before the Closing, of all of Parent’s conditions precedent to its obligations to consummate the Merger as set forth in Section 9.01 and Section 9.02 of the Merger Agreement (other than those conditions that by their terms are to be satisfied by the delivery of documents or taking of any other action at the Closing but which are capable of being satisfied at such time); it being understood that the funding of the ONE Commitment will occur contemporaneous with the Closing, (b)(i) with respect to the Washington Family Holdings ECL and the DS ECL, the Washington Family Holdings Commitment and the DS Commitment shall have been funded or will be funded at the Closing and (ii) the Rollover Shares shall have been contributed to Parent in accordance with the Rollover Agreements at the Closing, in each case substantially concurrently with the ONE Commitment funding; provided that the satisfaction or failure of the condition set forth in this clause (b) shall not limit or impair the ability of Parent or the Special Committee (on behalf of the Company) to seek to enforce the obligations of ONE under, and in accordance with, this letter agreement if (i) Parent or the Company is also seeking enforcement of the Washington Family Holdings ECL, the DS ECL and the Rollover Agreements (and the substantially concurrent funding of the Washington Family Holdings Commitment and the DS Commitment and consummation of the transactions contemplated by the Rollover Agreements, which enforcement hereunder shall be subject to concurrent enforcement under each of such other commitment letters and Rollover Agreements) or (ii) Washington Family Holdings and DS have satisfied or are prepared to satisfy their obligations to fund and contribute the Washington Family Holdings Commitment and DS Commitment, respectively, and the parties to the Rollover Agreements are prepared to satisfy their obligations thereunder; provided further that notwithstanding the foregoing, under no circumstance shall ONE be obligated to fund the ONE Commitment unless Washington Family Holdings and DS do actually satisfy their obligations to fund and contribute the Washington Family Holdings Commitment and DS Commitment, respectively, and the parties to the Rollover Agreements do actually satisfy their obligations thereunder, and (c)(i) the substantially contemporaneous consummation of the Closing under the Merger Agreement, (ii) the obtaining by the Company of a final and non-appealable judgment requiring Bidco to specifically perform its obligations pursuant to the terms of the Merger Agreement or (iii) the obtaining of a final and non-appealable judgment requiring ONE to specifically perform its obligations under this letter agreement.
ONE’s obligation to fund the ONE Commitment will terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with Section 10.01 thereof, (b) the consummation of the Closing and the funding of the ONE Commitment hereunder, at which time the obligations hereunder shall be discharged, and (c) upon the Company, the Special Committee or any of their respective Affiliates (other than FF, DS, Washington Family Holdings and their respective Affiliates (other than the Company and its Subsidiaries)) filing a lawsuit or other proceeding asserting, in writing, directly or indirectly, any claim for payment under or in respect of this letter agreement, the JBA, the Merger Agreement, the Expense Reimbursement Agreement or the transactions contemplated hereby or thereby from ONE or its Affiliates, in each case other than a lawsuit or other proceeding against ONE pursuant to the JBA, the Expense Reimbursement Agreement or the confidentiality letter between the Company and ONE, dated as of March 7, 2022 (the “Confidentiality Letter”), or to specifically enforce the provisions of this letter agreement, the Merger Agreement or the Confidentiality Letter or any other contractual agreement between or among the foregoing parties as permitted herein or therein.
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Subject to the terms of the JBA, ONE may assign all or a portion of its obligation to fund the ONE Commitment to an Affiliate with the consent of each of FF, Washington Family Holdings and DS; provided, however, that any such assignment shall not relieve ONE of its obligations under this letter agreement. The ONE Commitment shall not be assignable by Bidco without the prior written consent of ONE and the Special Committee (on behalf of the Company), and the granting of such consent in a given instance shall be solely in the discretion of ONE and the Special Committee (on behalf of the Company) and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Except as expressly provided herein, this letter agreement shall not be assignable without the consent of the parties hereto, each of FF, Washington Family Holdings and DS and the Special Committee (on behalf of the Company). Notwithstanding anything to the contrary in the foregoing, no assignment shall be permitted if assignment to such Person would (1) prevent, impede or materially delay the ability of Parent or Merger Sub to consummate the transactions contemplated by the Merger Agreement or (2) result in any consent or approval of, or filing, declaration or registration with, any Governmental Authority being required in connection with the transactions contemplated by the Merger Agreement that would reasonably be expected to prevent, impede or materially delay the consummation of such transactions.
This letter agreement shall be binding solely on the parties hereto and their successors and permitted assignees and inure solely to the benefit of Bidco, and nothing set forth in this letter agreement shall be construed to confer upon or give to any Person other than Bidco any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Bidco to enforce, the ONE Commitment or any other provisions of this letter agreement; provided, however, that, subject to the terms and conditions set forth in Section 2.1 of the JBA (in the case of FF, Washington Family Holdings and DS) and in the Merger Agreement, each of FF, Washington Family Holdings, DS and the Special Committee (on behalf of the Company) is hereby made an express third-party beneficiary hereof and shall have the enforcement rights set forth in the following sentence and the other rights expressly conferred upon the Company in this letter agreement. This letter agreement may be enforced by each of FF, Washington Family Holdings, DS and the Special Committee (on behalf of the Company) for the purpose of obtaining specific performance of Bidco’s right to cause the ONE Commitment to be funded pursuant to the terms and conditions hereunder (which right of specific performance may be sought directly against ONE or indirectly through Bidco), and for no other purpose (including, without limitation, any claim for monetary damages hereunder). ONE’s creditors shall have no right to enforce this letter agreement or to cause Bidco to enforce this letter agreement.
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Notwithstanding anything to the contrary that may be expressed or implied in this letter agreement or any document or instrument delivered contemporaneously herewith, and notwithstanding the fact that ONE or any of its successors or permitted assignees may be a partnership, limited liability company or similar domestic or foreign entity, Bidco by its acceptance of the benefits of this letter agreement, covenants, agrees and acknowledges that no person other than ONE and its successors and permitted assignees shall have any obligation hereunder and that it has no rights of recovery against, and no recourse under this letter agreement, the Merger Agreement or any documents or instruments delivered in connection herewith or therewith shall be had against, any former, current or future director, officer, agent, Affiliate, manager or employee of ONE (or any of its successors or assignees), against any former, current or future general or limited partner, manager, equityholder or member of ONE (or any of its successors or assignees) or any Affiliate thereof or against any former, current or future director, officer, agent, employee, Affiliate, assignee, general or limited partner, equityholder, manager or member of any of the foregoing (each, other than ONE and its successors and permitted assignees, an “ONE Affiliate”), whether by or through attempted piercing of the corporate veil, by or through a claim by or on behalf of ONE against the ONE Affiliates, by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable law, or otherwise; provided that (and notwithstanding anything to the contrary provided herein or in any document or instrument delivered contemporaneously herewith), (A) nothing herein shall limit the rights of the Rollover Group against ONE under the Joint Bidding Agreement, dated and effective as of August 4, 2022 (as amended in the form provided to the Company prior to the date hereof, the “JBA”) pursuant to the terms and conditions of such JBA, (B) nothing herein shall limit the rights of FF, Washington Family Holdings, DS and the Company against ONE (or with respect to any assignee hereof) as a third-party beneficiary under this letter agreement pursuant to the terms and conditions hereof, and (C) nothing herein shall limit the rights of the Company against the Investors under the Expense Reimbursement Agreement pursuant to the terms and conditions of the Expense Reimbursement Agreement. The parties hereto expressly agree and acknowledge that no personal liability whatsoever shall attach to, be imposed on, or otherwise be incurred by any ONE Affiliate, as such, for any obligations of ONE under this letter agreement or the transactions contemplated hereby, under any documents or instruments delivered in connection herewith, or for any claim based on, in respect of, or by reason of, such obligations or their creation.
Bidco further agrees that neither it nor any of its Affiliates shall have any right of recovery against ONE or any of the ONE Affiliates, whether by piercing of the corporate veil, by a claim on behalf of Bidco or any of its equityholders against ONE or any of the ONE Affiliates, or otherwise, except for Bidco’s right to be capitalized by ONE with the ONE Commitment under and to the extent provided in this letter agreement and subject to the terms and conditions hereof. Bidco hereby covenants and agrees that it shall not institute, and shall cause its Affiliates not to institute, any proceeding or bring any other claim arising under, or in connection with, the Agreement or the Merger Agreement against ONE or any of the ONE Affiliates, except for claims against ONE under this letter agreement or the JBA.
This letter agreement shall be treated as confidential and is being provided to Bidco, the Rollover Group and the Company solely in connection with the JBA and the Merger Agreement. This letter agreement may not be used, circulated, quoted or otherwise referred to in any document (other than the JBA, the Merger Agreement, the Washington Family Holdings ECL and the DS ECL), except with the written consent of ONE; provided, that Bidco or the Company or any other Investor may disclose this letter agreement (a) to its officers, directors, advisors and other authorized representatives, (b) to the extent required by applicable Law or the applicable rules of any national securities exchange, including, without limitation, in connection with routine filings, submissions and any other similar documentation required or customary to comply with U.S. Securities and Exchange Commission filing requirements or in connection with any securities regulatory agency filings relating to the transactions contemplated under the Merger Agreement; provided that Bidco and the Company will, to the extent reasonably practicable and permitted by applicable law, notify ONE at least twenty four (24) hours before making any such disclosure and consider in good faith any comments made by ONE to prevent or restrict disclosure, or on the content of the disclosure, and (c) in connection with the enforcement by Bidco and/or the Company of their respective rights hereunder or under the Merger Agreement or the Expense Reimbursement Agreement.
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To the maximum extent permitted by Applicable Law, this letter agreement and all claims or causes of action (whether in contract, tort or otherwise) that may be based upon, arise out of or relate to this letter agreement or the negotiation, execution or performance of this letter agreement shall be governed and construed in accordance with the laws of the State of Delaware, without regard to principles of conflicts of law
Each party hereto agrees that this letter agreement has been entered into by the parties hereto in express reliance upon 6 Del. C. § 2708. Each of the parties, to the maximum extent permitted by Applicable Law, (a) irrevocably submits to the personal jurisdiction of any state or federal court sitting in the state of Delaware and the courts of Singapore, as well as to the jurisdiction of all courts to which an appeal may be taken from such courts, in any suit, action or proceeding arising out of or relating to this Agreement, (b) agrees that all claims in respect of such suit, action or proceeding may be brought, heard and determined in the Delaware Court of Chancery (provided that, in the event that subject matter jurisdiction is unavailable in that court, then all such claims may be brought, heard and determined in any other state or federal court sitting in the state of Delaware) or, if determined by Bidco or the Company, in the courts of Singapore (collectively, the “Applicable Courts”), (c) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from such Applicable Court, (d) agrees not to bring any action or proceeding arising out of or relating to this letter agreement in any other court, and (e) expressly waives, and agrees not to plead or to make any claim that any such action or proceeding is subject (in whole or in part) to a jury trial, (f) agrees (1) to the extent such party is not otherwise subject to service of process in the State of Delaware, to appoint and maintain an agent in the State of Delaware as such party’s agent for acceptance of legal process, and (2) that, to the fullest extent permitted by Applicable Law, service of process may also be made on such party by prepaid certified mail with a proof of mailing receipt validated by the United States Postal Service constituting evidence of valid service, and that service made pursuant to (f)(1) or (2) above shall, to the fullest extent permitted by Applicable Law, have the same legal force and effect as if served upon such party personally within the State of Delaware or Singapore, as applicable, and (g) waives, to the fullest extent permitted by Applicable Law, any objection it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such Applicable Court or that any such suit, action or proceeding brought in any such Applicable Court has been brought in an inconvenient forum. For purposes of implementing the parties’ agreement to appoint and maintain an agent for service of process in the State of Delaware, each such party that has not as of the date hereof already duly appointed such an agent in Delaware does hereby appoint Universal Registered Agents, Inc., as such agent. Each of the parties waives any defense of inconvenient forum to the maintenance of any action or proceeding brought in accordance with this paragraph. Each of the parties further consents and agrees that, to the maximum extent permitted by Applicable Law, process in any suit, action or proceeding may be served on such party in accordance with the notice provisions of this letter agreement. Each party hereto agrees that a final judgment in any action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Applicable Law. Each party hereto irrevocably consents to the service of process outside the territorial jurisdiction of the courts referred to in this paragraph in any such action or proceeding by mailing copies thereof by registered or certified U.S. mail, postage prepaid, return receipt requested, to its (or its registered agent’s) address as specified in this letter agreement. However, the foregoing shall not limit the right of a party to effect service of process on the other party by any other legally available method.
5
All notices, requests, instruction, demands and other communications under this letter agreement shall be in writing and shall be deemed given (i) when delivered personally by hand (with written confirmation of receipt), (ii) on the date sent by e-mail if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (iii) when received by the addressee if sent by nationally recognized overnight delivery service (with written confirmation of receipt), in each case, at the following addresses (or to such other address as a party may have specified by notice given to the other party pursuant to this provision):
If to ONE, to:
Ocean Network Express Pte. Ltd.
7 Straits View,
#16-01 Marina One East Tower,
Singapore 018936
Attention: Corporate Strategy & Sustainability
with a copy to (which shall not constitute notice):
Latham & Watkins LLP
1271 Avenue of the Americas
New York, NY 10020
| Attention: | David Kurzweil; Julian Azran |
Email:
If to Bidco, to:
Poseidon Acquisition Corp.
| Attention: | David L. Sokol |
Email:
with a copy to (which shall not constitute notice):
Honigman LLP
2290 First National Building
600 Woodward Avenue
Detroit, MI 48226
| Attention: | Tracy Larsen; Jeff Kuras; Barbara Kaye |
Email:
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and with a copy to (which shall not constitute notice):
Torys LLP
1114 Avenue of the Americas, 23rd Floor
New York, NY 10036
| Attention: | Michael Horwitz |
Email:
and with a copy to (which shall not constitute notice):
K&L Gates LLP
925 Fourth Avenue, Suite 2900
Seattle, WA 98104
| Attention: | Stephan Coonrod; Christopher H. Cunningham; Christopher Bellavia |
Email:
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS LETTER AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATION OF THIS WAIVER, (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) EACH OTHER PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
This letter agreement and the JBA contain the complete agreement between ONE and Bidco with respect to the subject matter hereof and thereof, and supersedes all prior and contemporaneous agreements (including the ONE Equity Commitment Letter made by ONE to Parent on August 4, 2022, as amended, which, for the avoidance of doubt, is hereby terminated), discussions, negotiations, correspondence, communications, undertakings and understandings among the parties with respect to such subject matter. Notwithstanding the foregoing, in the event of a conflict or inconsistency between this letter agreement and the JBA, the terms of this letter agreement shall control (other than with respect to any rights between ONE and the other parties to the JBA). ONE and Bidco agree and acknowledge that the existence and terms of the JBA shall have no effect on, and in no manner impair or alter, the Company’s rights under this letter agreement.
This letter agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto and, following the execution of the Merger Agreement, the Special Committee (on behalf of the Company); provided, however, that ONE may amend this letter agreement to reflect any permitted assignment as expressly permitted herein (a copy of which shall promptly be provided to the Company) for the sole purpose of allocating the ONE Commitment among ONE and its permitted assignees.
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This letter agreement may be executed in one or more counterparts including by facsimile or other means of electronic transmission, such as by electronic mail in “.pdf’ form, each of which shall be deemed to be an original copy of this letter agreement and all of which, when taken together, will be deemed to constitute one and the same agreement.
If any provision of this letter agreement is or becomes invalid, illegal or unenforceable in any respect under the law of any jurisdiction: (a) the validity, legality and enforceability under the law of that jurisdiction of any other provision; and (b) the validity, legality and enforceability under the law of any other jurisdiction of that or any other provision, in each case shall not be affected or impaired in any way; provided, however, that this letter agreement may not be enforced without giving effect to the first paragraph, the second paragraph, the third paragraph, the fourth paragraph, the sixth paragraph, the seventh paragraph and to the cap on the ONE Commitment.
ONE hereby represents and warrants with respect to itself that (a) it has all legal entity power and authority to execute, deliver, and perform the obligations under this letter agreement, (b) the execution, delivery, and performance of this letter agreement by ONE has been duly and validly authorized and approved by all necessary legal entity action by it, (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against it in accordance with the terms of this letter agreement, except as enforcement hereof may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights or by general equity principles, (d) the execution, delivery and performance of this letter agreement by ONE does not violate or result in a breach or default under (i) the organizational or governance documents of ONE, (ii) any material document or agreement to which ONE is a party or otherwise binding on ONE, or (iii) subject to obtaining any necessary regulatory approvals for the consummation of the funding of the ONE Commitment pursuant to this letter agreement and the Closing, any applicable Law unless the failure to receive such regulatory approval would not adversely affect the ability of ONE to consummate the funding of the ONE Commitment, and (e) it has the financial capacity, and will maintain such financial capacity through the termination hereof, to pay and perform its obligations under this letter agreement, and all funds necessary for ONE to fulfill the ONE Commitment shall be available to ONE for so long as this letter agreement shall remain in effect.
[Remainder of page intentionally left blank]
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| Very truly yours, | ||
| OCEAN NETWORK EXPRESS PTE. LTD. | ||
| By: | /s/ Jeremy Nixon | |
| Name: Jeremy Nixon | ||
| Title: Chief Executive Officer | ||
[Signature Page to Oasis Equity Commitment Letter]
Accepted and Acknowledged as of the date first written above: | ||
| POSEIDON ACQUISITION CORP. | ||
| By: | /s/ David L. Sokol | |
| Name: David L. Sokol | ||
| Title: Chairman | ||
[Signature Page to Oasis Equity Commitment Letter]
Exhibit 99.13
October 31, 2022
Poseidon Acquisition Corp.
Attention: David L. Sokol
Email:
| Re: | Washington Family Holdings Equity Commitment Letter |
Ladies and Gentlemen:
This letter agreement (this “letter agreement”) sets forth the commitment of Deep Water Holdings, LLC, a Montana limited liability company (“DWH”), to purchase, directly or indirectly, on the terms and subject to the conditions contained herein, certain equity interests of Poseidon Acquisition Corp., a Marshall Islands corporation (“Parent” or “Bidco”). Reference is made to that certain Agreement and Plan of Merger (as amended, restated, supplemented or otherwise modified from time to time, the “Merger Agreement”), dated as of the date hereof, by and among Atlas Corp., a Marshall Islands corporation (the “Company”), Parent, and Poseidon Merger Sub, Inc., a Marshall Islands corporation and a wholly owned subsidiary of Parent (“Merger Sub”), pursuant to which (i) Merger Sub will be merged with and into the Company, (ii) the separate corporate existence of Merger Sub will thereupon cease and (iii) the Company will continue as the surviving corporation and a wholly-owned (other than with respect to the Designated Company Preferred Shares) Subsidiary of Parent (the “Merger”). Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
Subject to the conditions set forth in this letter agreement, DWH hereby agrees that at the Closing, it will purchase, directly or indirectly, equity securities of Bidco with an aggregate purchase price equal to $175,000,000 (such amount, the “DWH Commitment”), the proceeds of which shall be used by Bidco to fund (and fully discharge) a portion of the Merger Consideration and other amounts to be paid with respect to Company RSUs, Company Options, Company Restricted Shares, Company Phantom Shares, other Company equity securities or awards and the Company’s Exchangeable Notes (following the exchange thereof into cash as the exchange consideration) to be paid by Bidco pursuant to the Merger Agreement (the “Bidco Payment Obligations”); provided that (i) to the extent (and only to the extent) that, at the Closing, Parent does not require the full amount of the Total Commitment (as defined below) to fund in full the Bidco Payment Obligations, the DWH Commitment, the DS Commitment (as defined below) and the ONE Commitment (as defined below) shall be reduced on a pro rata basis, and (ii) DWH shall not, under any circumstances, be obligated to contribute (or cause to be contributed) to Bidco more than the DWH Commitment. The proceeds of the DWH Commitment, together with the amounts (the “ONE Commitment”) to be paid by Ocean Network Express Pte. Ltd. (“ONE”) under the letter agreement dated as of the date hereof between ONE and Parent pursuant to which ONE has agreed to make certain equity investments in Parent (the “ONE ECL”), and the amounts (the “DS Commitment”) to be paid by David Sokol (“DS”) under the letter agreement dated as of the date hereof between DS and Parent pursuant to which DS has agreed to make certain equity investments in Parent (the “DS ECL”) shall collectively constitute the “Total Commitment” for purposes of this letter agreement. Upon the funding of the DWH Commitment, DWH will acquire Bidco Common Shares (as defined in the JBA (as defined below)), which shall be the same class and type of equity interests of Bidco as FF (as defined in the JBA) and DS (together, the “Rollover Group”) acquire, and at the same price per Bidco Common Share paid, (1) pursuant to the DS ECL and the ONE ECL and (2) in exchange for the Rollover Group’s Rollover Shares (using the Merger Consideration paid per Company Common Share paid pursuant to the Merger Agreement as the value per Rollover Share).
DWH’s obligation to fund the DWH Commitment is subject to (a) the satisfaction in full or waiver by Parent, on or before the Closing, of all of Parent’s conditions precedent to its obligations to consummate the Merger as set forth in Section 9.01 and Section 9.02 of the Merger Agreement (other than those conditions that by their terms are to be satisfied by the delivery of documents or taking of any other action at the Closing but which are capable of being satisfied at such time); it being understood that the funding of the DWH Commitment will occur contemporaneous with the Closing, (b)(i) with respect to the ONE ECL and the DS ECL, the ONE Commitment and the DS Commitment shall have been funded or will be funded at the Closing and (ii) the Rollover Shares shall have been contributed to Parent in accordance with the Rollover Agreements at the Closing, in each case substantially concurrently with the DWH Commitment funding; provided that the satisfaction or failure of the condition set forth in this clause (b) shall not limit or impair the ability of Parent or the Special Committee (on behalf of the Company) to seek to enforce the obligations of DWH under, and in accordance with, this letter agreement if (i) Parent or the Company is also seeking enforcement of the ONE ECL, the DS ECL and the Rollover Agreements (and the substantially concurrent funding of the ONE Commitment and the DS Commitment and consummation of the transactions contemplated by the Rollover Agreements, which enforcement hereunder shall be subject to concurrent enforcement under each of such other commitment letters and Rollover Agreements) or (ii) ONE and DS have satisfied or are prepared to satisfy their obligations to fund and contribute the ONE Commitment and DS Commitment, respectively, and the parties to the Rollover Agreements are prepared to satisfy their obligations thereunder; provided further that notwithstanding the foregoing, under no circumstance shall DWH be obligated to fund the DWH Commitment unless ONE and DS do actually satisfy their obligations to fund and contribute the ONE Commitment and DS Commitment, respectively, and the parties to the Rollover Agreements do actually satisfy their obligations thereunder, and (c)(i) the substantially contemporaneous consummation of the Closing under the Merger Agreement, (ii) the obtaining by the Company of a final and non-appealable judgment requiring Bidco to specifically perform its obligations pursuant to the terms of the Merger Agreement or (iii) the obtaining of a final and non-appealable judgment requiring DWH to specifically perform its obligations under this letter agreement.
DWH’s obligation to fund the DWH Commitment will terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with Section 10.01 thereof, (b) the consummation of the Closing and the funding of the DWH Commitment hereunder, at which time the obligations hereunder shall be discharged, and (c) upon the Company, the Special Committee or any of their respective Affiliates (other than FF, DS, ONE and their respective Affiliates (other than the Company and its Subsidiaries)) filing a lawsuit or other proceeding asserting, in writing, directly or indirectly, any claim for payment under or in respect of this letter agreement, the JBA, the Merger Agreement, the Expense Reimbursement Agreement or the transactions contemplated hereby or thereby from DWH or its Affiliates, in each case other than a lawsuit or other proceeding against DWH pursuant to the JBA, the Expense Reimbursement Agreement, or to specifically enforce the provisions of this letter agreement, the Merger Agreement, or any other contractual agreement between or among the foregoing parties as permitted herein or therein.
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Subject to the terms of the JBA, DWH may assign all or a portion of its obligation to fund the DWH Commitment to an Affiliate with the consent of each of FF, ONE and DS; provided, however, that any such assignment shall not relieve DWH of its obligations under this letter agreement. The DWH Commitment shall not be assignable by Bidco without the prior written consent of DWH and the Special Committee (on behalf of the Company), and the granting of such consent in a given instance shall be solely in the discretion of DWH and the Special Committee (on behalf of the Company) and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Except as expressly provided herein, this letter agreement shall not be assignable without the consent of the parties hereto, each of FF, ONE, and DS and the Special Committee (on behalf of the Company). Notwithstanding anything to the contrary in the foregoing, no assignment shall be permitted if assignment to such Person would (1) prevent, impede or materially delay the ability of Parent or Merger Sub to consummate the transactions contemplated by the Merger Agreement or (2) result in any consent or approval of, or filing, declaration or registration with, any Governmental Authority being required in connection with the transactions contemplated by the Merger Agreement that would reasonably be expected to prevent, impede or materially delay the consummation of such transactions.
This letter agreement shall be binding solely on the parties hereto and their successors and permitted assignees and inure solely to the benefit of Bidco, and nothing set forth in this letter agreement shall be construed to confer upon or give to any Person other than Bidco any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Bidco to enforce, the DWH Commitment or any other provisions of this letter agreement; provided, however, that, subject to the terms and conditions set forth in Section 2.1 of the JBA (in the case of FF, DWH and DS) and in the Merger Agreement, each of FF, ONE, DS and the Special Committee (on behalf of the Company) is hereby made an express third-party beneficiary hereof and shall have the enforcement rights set forth in the following sentence and the other rights expressly conferred upon the Company in this letter agreement. This letter agreement may be enforced by each of FF, ONE, DS and the Special Committee (on behalf of the Company) for the purpose of obtaining specific performance of Bidco’s right to cause the DWH Commitment to be funded pursuant to the terms and conditions hereunder (which right of specific performance may be sought directly against DWH or indirectly through Bidco), and for no other purpose (including, without limitation, any claim for monetary damages hereunder). DWH’s creditors shall have no right to enforce this letter agreement or to cause Bidco to enforce this letter agreement.
3
Notwithstanding anything to the contrary that may be expressed or implied in this letter agreement or any document or instrument delivered contemporaneously herewith, and notwithstanding the fact that DWH or any of its successors or permitted assignees may be a partnership, limited liability company or similar domestic or foreign entity, Bidco by its acceptance of the benefits of this letter agreement, covenants, agrees and acknowledges that no person other than DWH and its successors and permitted assignees shall have any obligation hereunder and that it has no rights of recovery against, and no recourse under this letter agreement, the Merger Agreement or any documents or instruments delivered in connection herewith or therewith shall be had against, any former, current or future director, officer, agent, Affiliate, manager or employee of DWH (or any of its successors or assignees), against any former, current or future general or limited partner, manager, equityholder or member of DWH (or any of its successors or assignees) or any Affiliate thereof or against any former, current or future director, officer, agent, employee, Affiliate, assignee, general or limited partner, equityholder, manager or member of any of the foregoing (each, other than DWH and its successors and permitted assignees, an “DWH Affiliate”), whether by or through attempted piercing of the corporate veil, by or through a claim by or on behalf of DWH against the DWH Affiliates, by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable law, or otherwise; provided that (and notwithstanding anything to the contrary provided herein or in any document or instrument delivered contemporaneously herewith), (A) nothing herein shall limit the rights of the Rollover Group and ONE against DWH under the Joint Bidding Agreement, dated and effective as of August 4, 2022 (as amended in the form provided to the Company prior to the date hereof, the “JBA”) pursuant to the terms and conditions of such JBA, (B) nothing herein shall limit the rights of FF, ONE, DS and the Company against DWH (or with respect to any assignee hereof) as a third-party beneficiary under this letter agreement pursuant to the terms and conditions hereof, and (C) nothing herein shall limit the rights of FF, ONE, DS and the Company against DWH as a third party beneficiary pursuant to the term and conditions of DWH’s Rollover Agreement and (D) nothing herein shall limit the rights of the Company against the Investors under the Expense Reimbursement Agreement pursuant to the terms and conditions of the Expense Reimbursement Agreement. The parties hereto expressly agree and acknowledge that no personal liability whatsoever shall attach to, be imposed on, or otherwise be incurred by any DWH Affiliate, as such, for any obligations of DWH under this letter agreement or the transactions contemplated hereby, under any documents or instruments delivered in connection herewith, or for any claim based on, in respect of, or by reason of, such obligations or their creation.
Bidco further agrees that neither it nor any of its Affiliates shall have any right of recovery against DWH or any of the DWH Affiliates, whether by piercing of the corporate veil, by a claim on behalf of Bidco or any of its equityholders against DWH or any of the DWH Affiliates, or otherwise, except for Bidco’s right to be capitalized by DWH with the DWH Commitment under and to the extent provided in this letter agreement and subject to the terms and conditions hereof. Bidco hereby covenants and agrees that it shall not institute, and shall cause its Affiliates not to institute, any proceeding or bring any other claim arising under, or in connection with, the Agreement or the Merger Agreement against DWH or any of the DWH Affiliates, except for claims against DWH under this letter agreement or the JBA.
This letter agreement shall be treated as confidential and is being provided to Bidco, the Rollover Group, ONE and the Company solely in connection with the JBA and the Merger Agreement. This letter agreement may not be used, circulated, quoted or otherwise referred to in any document (other than the JBA, the Merger Agreement, the ONE ECL and the DS ECL), except with the written consent of DWH; provided, that Bidco or the Company or any other Investor may disclose this letter agreement (a) to its officers, directors, advisors and other authorized representatives, (b) to the extent required by applicable Law or the applicable rules of any national securities exchange, including, without limitation, in connection with routine filings, submissions and any other similar documentation required or customary to comply with U.S. Securities and Exchange Commission filing requirements or in connection with any securities regulatory agency filings relating to the transactions contemplated under the Merger Agreement; provided that Bidco and the Company will, to the extent reasonably practicable and permitted by applicable law, notify DWH at least twenty four (24) hours before making any such disclosure and consider in good faith any comments made by DWH to prevent or restrict disclosure, or on the content of the disclosure, and (c) in connection with the enforcement by Bidco and/or the Company of their respective rights hereunder or under the Merger Agreement or the Expense Reimbursement Agreement.
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To the maximum extent permitted by Applicable Law, this letter agreement and all claims or causes of action (whether in contract, tort or otherwise) that may be based upon, arise out of or relate to this letter agreement or the negotiation, execution or performance of this letter agreement shall be governed and construed in accordance with the laws of the State of Delaware, without regard to principles of conflicts of law
Each party hereto agrees that this letter agreement has been entered into by the parties hereto in express reliance upon 6 Del. C. § 2708. Each of the parties, to the maximum extent permitted by Applicable Law, (a) irrevocably submits to the personal jurisdiction of any state or federal court sitting in the state of Delaware, as well as to the jurisdiction of all courts to which an appeal may be taken from such courts, in any suit, action or proceeding arising out of or relating to this Agreement, (b) agrees that all claims in respect of such suit, action or proceeding shall be brought, heard and determined exclusively in the Delaware Court of Chancery (provided that, in the event that subject matter jurisdiction is unavailable in that court, then all such claims shall be brought, heard and determined in any other state or federal court sitting in the state of Delaware), (c) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from such court, (d) agrees not to bring any action or proceeding arising out of or relating to this letter agreement in any other court, and (e) expressly waives, and agrees not to plead or to make any claim that any such action or proceeding is subject (in whole or in part) to a jury trial, (f) agrees (1) to the extent such party is not otherwise subject to service of process in the State of Delaware, to appoint and maintain an agent in the State of Delaware as such party’s agent for acceptance of legal process, and (2) that, to the fullest extent permitted by Applicable Law, service of process may also be made on such party by prepaid certified mail with a proof of mailing receipt validated by the United States Postal Service constituting evidence of valid service, and that service made pursuant to (f)(1) or (2) above shall, to the fullest extent permitted by Applicable Law, have the same legal force and effect as if served upon such party personally within the State of Delaware, and (g) waives, to the fullest extent permitted by Applicable Law, any objection 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 brought in any such court has been brought in an inconvenient forum. For purposes of implementing the parties’ agreement to appoint and maintain an agent for service of process in the State of Delaware, each such party that has not as of the date hereof already duly appointed such an agent in Delaware does hereby appoint Universal Registered Agents, Inc., as such agent. Each of the parties waives any defense of inconvenient forum to the maintenance of any action or proceeding brought in accordance with this paragraph. Each of the parties further consents and agrees that, to the maximum extent permitted by Applicable Law, process in any suit, action or proceeding may be served on such party in accordance with the notice provisions of this letter agreement. Each party hereto agrees that a final judgment in any action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Applicable Law. Each party hereto irrevocably consents to the service of process outside the territorial jurisdiction of the courts referred to in this paragraph in any such action or proceeding by mailing copies thereof by registered or certified U.S. mail, postage prepaid, return receipt requested, to its (or its registered agent’s) address as specified in this letter agreement. However, the foregoing shall not limit the right of a party to effect service of process on the other party by any other legally available method.
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All notices, requests, instruction, demands and other communications under this letter agreement shall be in writing and shall be deemed given (i) when delivered personally by hand (with written confirmation of receipt), (ii) on the date sent by e-mail if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (iii) when received by the addressee if sent by nationally recognized overnight delivery service (with written confirmation of receipt), in each case, at the following addresses (or to such other address as a party may have specified by notice given to the other party pursuant to this provision):
If to DWH, to:
Deep Water Holdings, LLC
P.O. Box 16630
101 International Way
Missoula, MT 59808
Attention: Jerry Lemon
Email:
with a copy to (which shall not constitute notice):
K&L Gates LLP
925 Fourth Avenue, Suite 2900
Seattle, WA 98104
| Attention: | Stephan Coonrod; Christopher H. Cunningham; Christopher Bellavia |
Email:
If to Bidco, to:
Poseidon Acquisition Corp.
| Attention: | David L. Sokol |
Email:
with a copy to (which shall not constitute notice):
Honigman LLP
2290 First National Building
600 Woodward Avenue
Detroit, MI 48226
| Attention: | Tracy Larsen; Jeff Kuras; Barbara Kaye |
Email:
and with a copy to (which shall not constitute notice):
Torys LLP
1114 Avenue of the Americas, 23rd Floor
New York, NY 10036
| Attention: | Michael Horwitz |
Email:
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and with a copy to (which shall not constitute notice):
Latham & Watkins LLP
1271 Avenue of the Americas
New York, NY 10020
| Attention: | David Kurzweil; Julian Azran |
Email:
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS LETTER AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATION OF THIS WAIVER, (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) EACH OTHER PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
This letter agreement, the JBA and DWH’s Rollover Agreement contain the complete agreement between DWH and Bidco with respect to the subject matter hereof and thereof, and supersedes all prior and contemporaneous agreements (including the Washington Family Holdings Equity Commitment Letter made by DWH to Parent on August 4, 2022, as amended, which, for the avoidance of doubt, is hereby terminated), discussions, negotiations, correspondence, communications, undertakings and understandings among the parties with respect to such subject matter. Notwithstanding the foregoing, in the event of a conflict or inconsistency between this letter agreement and the JBA, the terms of this letter agreement shall control (other than with respect to any rights between DWH and the other parties to the JBA). DWH and Bidco agree and acknowledge that the existence and terms of the JBA and DWH’s Rollover Agreement shall have no effect on, and in no manner impair or alter, the Company’s rights under this letter agreement.
This letter agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto and, following the execution of the Merger Agreement, the Special Committee (on behalf of the Company); provided, however, that DWH may amend this letter agreement to reflect any permitted assignment as expressly permitted herein (a copy of which shall promptly be provided to the Company) for the sole purpose of allocating the DWH Commitment among DWH and its permitted assignees.
This letter agreement may be executed in one or more counterparts including by facsimile or other means of electronic transmission, such as by electronic mail in “.pdf’ form, each of which shall be deemed to be an original copy of this letter agreement and all of which, when taken together, will be deemed to constitute one and the same agreement.
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If any provision of this letter agreement is or becomes invalid, illegal or unenforceable in any respect under the law of any jurisdiction: (a) the validity, legality and enforceability under the law of that jurisdiction of any other provision; and (b) the validity, legality and enforceability under the law of any other jurisdiction of that or any other provision, in each case shall not be affected or impaired in any way; provided, however, that this letter agreement may not be enforced without giving effect to the first paragraph, the second paragraph, the third paragraph, the fourth paragraph, the sixth paragraph, the seventh paragraph and to the cap on the DWH Commitment.
DWH hereby represents and warrants with respect to itself that (a) it has all legal entity power and authority to execute, deliver, and perform the obligations under this letter agreement, (b) the execution, delivery, and performance of this letter agreement by DWH has been duly and validly authorized and approved by all necessary legal entity action by it, (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against it in accordance with the terms of this letter agreement, except as enforcement hereof may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights or by general equity principles, (d) the execution, delivery and performance of this letter agreement by DWH does not violate or result in a breach or default under (i) the organizational or governance documents of DWH, (ii) any material document or agreement to which DWH is a party or otherwise binding on DWH, or (iii) subject to obtaining any necessary regulatory approvals for the consummation of the funding of the DWH Commitment pursuant to this letter agreement and the Closing, any applicable Law unless the failure to receive such regulatory approval would not adversely affect the ability of DWH to consummate the funding of the DWH Commitment, and (e) it has the financial capacity, and will maintain such financial capacity through the termination hereof, to pay and perform its obligations under this letter agreement, and all funds necessary for DWH to fulfill the DWH Commitment shall be available to DWH for so long as this letter agreement shall remain in effect.
Guaranty
Washington Investments, LLC (“WI”) guarantees the due and punctual payment, performance and observance by DWH of its payment obligations under this letter agreement. If DWH fails to fund the DWH Commitment, in whole or in part, when such obligation is due, WI shall immediately pay such amount to Parent in lawful money of the United States. The guarantee provided by WI shall be absolute, continuing, unconditional and irrevocable and shall not be released or discharged, in whole or in part, or otherwise affected by (a) the existence of any claim, set-off or other right which WI may have at any time against DWH, whether in connection with the DWH Commitment or otherwise; (b) any insolvency, bankruptcy, reorganization or other similar proceeding affecting DWH; (c) the failure of Parent or the Company to assert any claim or demand or to enforce any right or remedy against DWH; (d) any change in the corporate existence, structure or ownership of DWH; (e) the adequacy of any other means Parent or the Company may have of obtaining payment and satisfaction of the DWH Commitment; (f) any change in the time, place or manner of payment of any of the DWH Commitment or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of this letter agreement; or (g) the value, genuineness, validity, regularity, illegality or enforceability of this letter agreement or any other agreement or instrument referred to herein. WI hereby waives any right to require Parent or the Company, as a condition of payment by WI to proceed against DWH or any other Person or to pursue any other remedy or enforce any other right. To the fullest extent permitted by law, WI hereby expressly waives any and all rights or defenses arising by reason of any law which would otherwise require any election of remedies by Parent or the Company and with respect to any condition or circumstance whatsoever that might otherwise constitute a legal or equitable discharge, release or defense of a guarantor or surety or that might otherwise limit recourse against WI (other than the payment of any such guaranteed obligations). WI waives promptness, diligence, notice of the acceptance of this guarantee and of DWH’s obligations under this letter agreement, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect and all suretyship defenses generally. No failure on the part of Parent or the Company, or delay by Parent or the Company, in exercising any right under or with respect to the guarantee set forth in this paragraph shall operate as a waiver thereof, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right of Parent or the Company with respect to WI’s guarantee hereunder. WI hereby unconditionally and irrevocably agrees, unless and until all of the obligations of DWH set forth in this letter agreement shall have been irrevocably paid in full in cash, not to exercise any rights that it may now have or hereafter acquire against DWH that arise from the existence, payment, performance or enforcement of WI’s obligations under or in respect of this guarantee or any other agreement, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Parent or the Company against DWH, whether or not such claim, remedy or right arises in equity or under contract, statute or common law. WI represents and acknowledges that it has or will have, at the time of the Closing, a financial interest in DWH, that it will receive substantial direct and indirect benefits from the transactions contemplated by this letter agreement and that the waivers set forth in this paragraph are knowingly made in contemplation of such benefits.
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| Very truly yours, | ||
| DEEP WATER HOLDINGS, LLC | ||
| By: | /s/ Jerry Lemon | |
| Name: Jerry Lemon | ||
| Title: President | ||
| Solely with respect to the Guaranty Paragraph above: | ||
| WASHINGTON INVESTMENTS, LLC | ||
| By: | /s/ Jerry Lemon | |
| Name: Jerry Lemon | ||
| Title: President | ||
| Accepted and Acknowledged as of the date first written above: | ||
| POSEIDON ACQUISITION CORP. | ||
| By: | /s/ David L. Sokol | |
| Name: David L. Sokol | ||
| Title: Chairman | ||
Exhibit 99.14
October 31, 2022
Poseidon Acquisition Corp.
Attention: David L. Sokol
Email:
| Re: | DS Equity Commitment Letter |
Ladies and Gentlemen:
This letter agreement (this “letter agreement”) sets forth the commitment of David L. Sokol, an individual (“DS”), to purchase, directly or indirectly, on the terms and subject to the conditions contained herein, certain equity interests of Poseidon Acquisition Corp., a Marshall Islands corporation (“Parent” or “Bidco”). Reference is made to that certain Agreement and Plan of Merger (as amended, restated, supplemented or otherwise modified from time to time, the “Merger Agreement”), dated as of the date hereof, by and among Atlas Corp., a Marshall Islands corporation (the “Company”), Parent, and Poseidon Merger Sub, Inc., a Marshall Islands corporation and a wholly owned subsidiary of Parent (“Merger Sub”), pursuant to which (i) Merger Sub will be merged with and into the Company, (ii) the separate corporate existence of Merger Sub will thereupon cease and (iii) the Company will continue as the surviving corporation and a wholly-owned (other than with respect to the Designated Company Preferred Shares) Subsidiary of Parent (the “Merger”). Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
Subject to the conditions set forth in this letter agreement, DS hereby agrees that at the Closing, he will purchase, directly or indirectly, equity securities of Bidco with an aggregate purchase price equal to $30,000,000 (such amount, the “DS Commitment”), the proceeds of which shall be used by Bidco to fund (and fully discharge) a portion of the Merger Consideration and other amounts to be paid with respect to Company RSUs, Company Options, Company Restricted Shares, Company Phantom Shares, other Company equity securities or awards and the Company’s Exchangeable Notes (following the exchange thereof into cash as the exchange consideration) to be paid by Bidco pursuant to the Merger Agreement (the “Bidco Payment Obligations”); provided that (i) to the extent (and only to the extent) that, at the Closing, Parent does not require the full amount of the Total Commitment (as defined below) to fund in full the Bidco Payment Obligations, the DS Commitment, the ONE Commitment (as defined below) and the Washington Family Holdings Commitment (as defined below) shall be reduced on a pro rata basis, and (ii) DS shall not, under any circumstances, be obligated to contribute (or cause to be contributed) to Bidco more than the DS Commitment. The proceeds of the DS Commitment, together with the amounts (the “Washington Family Commitment”) to be paid by Deep Water Holdings, LLC (“Washington Family Holdings”) under the letter agreement dated as of the date hereof between Washington Family Holdings and Parent pursuant to which Washington Family Holdings has agreed to make certain equity investments in Parent (the “Washington Family Holdings ECL”), and the amounts (the “ONE Commitment”) to be paid by Ocean Network Express, Pte. Ltd. (“ONE”) under the letter agreement dated as of the date hereof between ONE and Parent pursuant to which ONE has agreed to make certain equity investments in Parent (the “ONE ECL”) shall collectively constitute the “Total Commitment” for purposes of this letter agreement. Upon the funding of the DS Commitment, DS (or his Affiliates) will acquire Bidco Common Shares (as defined in the JBA (as defined below)), which shall be the same class and type of equity interests of Bidco as ONE acquires and FF (as defined in the JBA) and Washington Family Holdings (together with DS, the “Rollover Group”) acquire, and at the same price per Bidco Common Share paid, (1) pursuant to the ONE ECL and the Washington Family Holdings ECL and (2) in exchange for the Rollover Group’s Rollover Shares (using the Merger Consideration paid per Company Common Share paid pursuant to the Merger Agreement as the value per Rollover Share).
DS’s obligation to fund the DS Commitment is subject to (a) the satisfaction in full or waiver by Parent, on or before the Closing, of all of Parent’s conditions precedent to its obligations to consummate the Merger as set forth in Section 9.01 and Section 9.02 of the Merger Agreement (other than those conditions that by their terms are to be satisfied by the delivery of documents or taking of any other action at the Closing but which are capable of being satisfied at such time); it being understood that the funding of the DS Commitment will occur contemporaneous with the Closing, (b)(i) with respect to the Washington Family Holdings ECL and the ONE ECL, the Washington Family Holdings Commitment and the ONE Commitment shall have been funded or will be funded at the Closing and (ii) the Rollover Shares shall have been contributed to Parent in accordance with the Rollover Agreements at the Closing, in each case substantially concurrently with the DS Commitment funding; provided that the satisfaction or failure of the condition set forth in this clause (b) shall not limit or impair the ability of Parent or the Special Committee (on behalf of the Company) to seek to enforce the obligations of DS under, and in accordance with, this letter agreement if (i) Parent or the Company is also seeking enforcement of the Washington Family Holdings ECL, the ONE ECL and the Rollover Agreements (and the substantially concurrent funding of the Washington Family Holdings Commitment and the ONE Commitment and consummation of the transactions contemplated by the Rollover Agreements, which enforcement hereunder shall be subject to concurrent enforcement under each of such other commitment letters and Rollover Agreements) or (ii) Washington Family Holdings and ONE have satisfied or are prepared to satisfy their obligations to fund and contribute the Washington Family Holdings Commitment and ONE Commitment, respectively, and the parties to the Rollover Agreements are prepared to satisfy their obligations thereunder; provided further that notwithstanding the foregoing, under no circumstance shall DS be obligated to fund the DS Commitment unless Washington Family Holdings and ONE do actually satisfy their obligations to fund and contribute the Washington Family Holdings Commitment and ONE Commitment, respectively, and the parties to the Rollover Agreements do actually satisfy their obligations thereunder, and (c)(i) the substantially contemporaneous consummation of the Closing under the Merger Agreement, (ii) the obtaining by the Company of a final and non-appealable judgment requiring Bidco to specifically perform its obligations pursuant to the terms of the Merger Agreement or (iii) the obtaining of a final and non-appealable judgment requiring DS to specifically perform its obligations under this letter agreement.
DS’s obligation to fund the DS Commitment will terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with Section 10.01 thereof, (b) the consummation of the Closing and the funding of the DS Commitment hereunder, at which time the obligations hereunder shall be discharged, and (c) upon the Company, the Special Committee or any of their respective Affiliates (other than FF, Washington Family Holdings and their respective Affiliates (other than the Company and its Subsidiaries)) filing a lawsuit or other proceeding asserting, in writing, directly or indirectly, any claim for payment under or in respect of this letter agreement, the JBA, the Merger Agreement, the Expense Reimbursement Agreement or the transactions contemplated hereby or thereby from DS or his Affiliates, in each case other than a lawsuit or other proceeding against DS pursuant to the JBA, the Expense Reimbursement Agreement or DS’s Rollover Agreement, or to specifically enforce the provisions of this letter agreement, the Merger Agreement, DS’s Rollover Agreement or any other contractual agreement between or among the foregoing parties as permitted herein or therein.
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Subject to the terms of the JBA, DS may assign all or a portion of his obligation to fund the DS Commitment to an Affiliate with the consent of each of FF, Washington Family Holdings and ONE except no consent shall be required in the case of assignment to Teton Capital, LLC; provided, however, that any such assignment (including to Teton Capital, LLC) shall not relieve DS of his obligations under this letter agreement. Teton Capital, LLC is, and at all times prior to the termination of DS’s obligation to fund the DS Commitment hereunder will be, controlled by DS. The DS Commitment shall not be assignable by Bidco without the prior written consent of DS and the Special Committee (on behalf of the Company), and the granting of such consent in a given instance shall be solely in the discretion of DS and the Special Committee (on behalf of the Company) and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Except as expressly provided herein, this letter agreement shall not be assignable without the consent of the parties hereto, each of FF, Washington Family Holdings and ONE and the Special Committee (on behalf of the Company). Notwithstanding anything to the contrary in the foregoing, no assignment shall be permitted if assignment to such Person would (1) prevent, impede or materially delay the ability of Parent or Merger Sub to consummate the transactions contemplated by the Merger Agreement or (2) result in any consent or approval of, or filing, declaration or registration with, any Governmental Authority being required in connection with the transactions contemplated by the Merger Agreement that would reasonably be expected to prevent, impede or materially delay the consummation of such transactions.
This letter agreement shall be binding solely on the parties hereto and their successors and permitted assignees and inure solely to the benefit of Bidco, and nothing set forth in this letter agreement shall be construed to confer upon or give to any Person other than Bidco any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Bidco to enforce, the DS Commitment or any other provisions of this letter agreement; provided, however, that, subject to the terms and conditions set forth in Section 2.1 of the JBA (in the case of FF, Washington Family Holdings and ONE) and in the Merger Agreement, each of FF, Washington Family Holdings, ONE and the Special Committee (on behalf of the Company) is hereby made an express third-party beneficiary hereof and shall have the enforcement rights set forth in the following sentence and the other rights expressly conferred upon the Company in this letter agreement. This letter agreement may be enforced by each of FF, Washington Family Holdings, ONE and the Special Committee (on behalf of the Company) for the purpose of obtaining specific performance of Bidco’s right to cause the DS Commitment to be funded pursuant to the terms and conditions hereunder (which right of specific performance may be sought directly against DS or indirectly through Bidco), and for no other purpose (including, without limitation, any claim for monetary damages hereunder). DS’s creditors shall have no right to enforce this letter agreement or to cause Bidco to enforce this letter agreement.
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Notwithstanding anything to the contrary that may be expressed or implied in this letter agreement or any document or instrument delivered contemporaneously herewith, and notwithstanding the fact that DS or any of his successors or permitted assignees may be a partnership, limited liability company or similar domestic or foreign entity, Bidco by its acceptance of the benefits of this letter agreement, covenants, agrees and acknowledges that no person other than DS and his successors and permitted assignees shall have any obligation hereunder and that it has no rights of recovery against, and no recourse under this letter agreement, the Merger Agreement or any documents or instruments delivered in connection herewith or therewith shall be had against, any former, current or future director, officer, agent, Affiliate, manager or employee of DS (or any of his successors or assignees), against any former, current or future general or limited partner, manager, equityholder or member of DS (or any of his successors or assignees) or any Affiliate thereof or against any former, current or future director, officer, agent, employee, Affiliate, assignee, general or limited partner, equityholder, manager or member of any of the foregoing (each, other than DS and his successors and permitted assignees, a “DS Affiliate”), whether by or through attempted piercing of the corporate veil, by or through a claim by or on behalf of DS against the DS Affiliates, by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable law, or otherwise; provided that (and notwithstanding anything to the contrary provided herein or in any document or instrument delivered contemporaneously herewith), (A) nothing herein shall limit the rights of the ONE, FF and Washington Family Holdings against DS under the Joint Bidding Agreement, dated and effective as of August 4, 2022 (as amended in the form provided to the Company prior to the date hereof, the “JBA”) pursuant to the terms and conditions of such JBA, (B) nothing herein shall limit the rights of FF, ONE, Washington Family Holdings and the Company against DS as a third party beneficiary pursuant to the term and conditions of DS’ Rollover Agreement, (C) nothing herein shall limit the rights of FF, Washington Family Holdings, ONE and the Company against DS (or with respect to any assignee hereof) as a third-party beneficiary under this letter agreement pursuant to the terms and conditions hereof and (D) nothing herein shall limit the rights of the Company against the Investors under the Expense Reimbursement Agreement pursuant to the terms and conditions of the Expense Reimbursement Agreement. The parties hereto expressly agree and acknowledge that no personal liability whatsoever shall attach to, be imposed on, or otherwise be incurred by any DS Affiliate, as such, for any obligations of DS under this letter agreement or the transactions contemplated hereby, under any documents or instruments delivered in connection herewith, or for any claim based on, in respect of, or by reason of, such obligations or their creation.
Bidco further agrees that neither it nor any of its Affiliates shall have any right of recovery against DS or any DS Affiliate, whether by piercing of the corporate veil, by a claim on behalf of Bidco or any of its equityholders against DS or any DS Affiliate, or otherwise, except for Bidco’s right to be capitalized by DS with the DS Commitment under and to the extent provided in this letter agreement and subject to the terms and conditions hereof. Bidco hereby covenants and agrees that it shall not institute, and shall cause its Affiliates not to institute, any proceeding or bring any other claim arising under, or in connection with, the Agreement or the Merger Agreement against DS or any DS Affiliate, except for claims against DS under this letter agreement or the JBA.
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This letter agreement shall be treated as confidential and is being provided to Bidco, FF, Washington Family Holdings, ONE and the Company solely in connection with the JBA and the Merger Agreement. This letter agreement may not be used, circulated, quoted or otherwise referred to in any document (other than the JBA, the Merger Agreement, the Washington Family Holdings ECL and the ONE ECL), except with the written consent of DS; provided, that Bidco or the Company or any other Investor may disclose this letter agreement (a) to its officers, directors, advisors and other authorized representatives, (b) to the extent required by applicable Law or the applicable rules of any national securities exchange, including, without limitation, in connection with routine filings, submissions and any other similar documentation required or customary to comply with U.S. Securities and Exchange Commission filing requirements or in connection with any securities regulatory agency filings relating to the transactions contemplated under the Merger Agreement; provided that Bidco and the Company will, to the extent reasonably practicable and permitted by applicable law, notify DS at least twenty four (24) hours before making any such disclosure and consider in good faith any comments made by DS to prevent or restrict disclosure, or on the content of the disclosure, and (c) in connection with the enforcement by Bidco and/or the Company of their respective rights hereunder or under the Merger Agreement, the Expense Reimbursement Agreement or DS’s Rollover Agreement.
To the maximum extent permitted by Applicable Law, this letter agreement and all claims or causes of action (whether in contract, tort or otherwise) that may be based upon, arise out of or relate to this letter agreement or the negotiation, execution or performance of this letter agreement shall be governed and construed in accordance with the laws of the State of Delaware, without regard to principles of conflicts of law
Each party hereto agrees that this letter agreement has been entered into by the parties hereto in express reliance upon 6 Del. C. § 2708. Each of the parties, to the maximum extent permitted by Applicable Law, (a) irrevocably submits to the personal jurisdiction of any state or federal court sitting in the state of Delaware, as well as to the jurisdiction of all courts to which an appeal may be taken from such courts, in any suit, action or proceeding arising out of or relating to this Agreement, (b) agrees that all claims in respect of such suit, action or proceeding shall be brought, heard and determined exclusively in the Delaware Court of Chancery (provided that, in the event that subject matter jurisdiction is unavailable in that court, then all such claims shall be brought, heard and determined exclusively in any other state or federal court sitting in the state of Delaware), (c) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from such court, (d) agrees not to bring any action or proceeding arising out of or relating to this letter agreement in any other court, and (e) expressly waives, and agrees not to plead or to make any claim that any such action or proceeding is subject (in whole or in part) to a jury trial, (f) agrees (1) to the extent such party is not otherwise subject to service of process in the State of Delaware, to appoint and maintain an agent in the State of Delaware as such party’s agent for acceptance of legal process, and (2) that, to the fullest extent permitted by Applicable Law, service of process may also be made on such party by prepaid certified mail with a proof of mailing receipt validated by the United States Postal Service constituting evidence of valid service, and that service made pursuant to (f)(1) or (2) above shall, to the fullest extent permitted by Applicable Law, have the same legal force and effect as if served upon such party personally within the State of Delaware and (g) waives, to the fullest extent permitted by Applicable Law, any objection 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 brought in any such court has been brought in an inconvenient forum. Each of the parties waives any defense of inconvenient forum to the maintenance of any action or proceeding brought in accordance with this paragraph. Each of the parties further consents and agrees that, to the maximum extent permitted by Applicable Law, process in any suit, action or proceeding may be served on such party in accordance with the notice provisions of this letter agreement. Each party hereto agrees that a final judgment in any action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Applicable Law. Each party hereto irrevocably consents to the service of process outside the territorial jurisdiction of the courts referred to in this paragraph in any such action or proceeding by mailing copies thereof by registered or certified U.S. mail, postage prepaid, return receipt requested, to its (or its registered agent’s) address as specified in this letter agreement. However, the foregoing shall not limit the right of a party to effect service of process on the other party by any other legally available method.
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All notices, requests, instruction, demands and other communications under this letter agreement shall be in writing and shall be deemed given (i) when delivered personally by hand (with written confirmation of receipt), (ii) on the date sent by e-mail if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (iii) when received by the addressee if sent by nationally recognized overnight delivery service (with written confirmation of receipt), in each case, at the following addresses (or to such other address as a party may have specified by notice given to the other party pursuant to this provision):
If to DS, to:
David L. Sokol
Attention: David L. Sokol
Email:
with a copy to (which shall not constitute notice):
Honigman LLP
2290 First National Building
600 Woodward Avenue
Detroit, MI 48226
Attention: Tracy Larsen; Jeff Kuras; Barbara Kaye
Email:
If to Bidco, to:
Poseidon Acquisition Corp.
Attention: David L. Sokol
Email:
with a copy to (which shall not constitute notice):
Honigman LLP
2290 First National Building
600 Woodward Avenue
Detroit, MI 48226
Attention: Tracy Larsen; Jeff Kuras; Barbara Kaye
Email:
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and with a copy to (which shall not constitute notice):
Torys LLP
1114 Avenue of the Americas, 23rd Floor
New York, NY 10036
Attention: Michael Horwitz
Email:
and with a copy to (which shall not constitute notice):
K&L Gates LLP
925 Fourth Avenue, Suite 2900
Seattle, WA 98104
Attention: Stephan Coonrod; Christopher H. Cunningham; Christopher Bellavia
Email:
and with a copy to (which shall not constitute notice):
Latham & Watkins LLP
1271 Avenue of the Americas
New York, NY 10020
Attention: David Kurzweil; Julian Azran
Email:
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS LETTER AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATION OF THIS WAIVER, (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) EACH OTHER PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
This letter agreement and the JBA and DS’s Rollover Agreement contain the complete agreement between DS and Bidco with respect to the subject matter hereof and thereof, and supersedes all prior and contemporaneous agreements (including the DS Equity Commitment Letter made by DS to Parent on August 4, 2022, as amended, which, for the avoidance of doubt, is hereby terminated), discussions, negotiations, correspondence, communications, undertakings and understandings among the parties with respect to such subject matter. Notwithstanding the foregoing, in the event of a conflict or inconsistency between this letter agreement and the JBA, the terms of this letter agreement shall control. DS and Bidco agree and acknowledge that the existence and terms of the JBA and DS’s Rollover Agreement shall have no effect on, and in no manner impair or alter, the Company’s rights under this letter agreement.
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This letter agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto and, following the execution of the Merger Agreement, the Special Committee (on behalf of the Company); provided, however, that DS may amend this letter agreement to reflect any permitted assignment as expressly permitted herein (a copy of which shall promptly be provided to the Company) for the sole purpose of allocating the DS Commitment among DS and its permitted assignees.
This letter agreement may be executed in one or more counterparts including by facsimile or other means of electronic transmission, such as by electronic mail in “.pdf’ form, each of which shall be deemed to be an original copy of this letter agreement and all of which, when taken together, will be deemed to constitute one and the same agreement.
If any provision of this letter agreement is or becomes invalid, illegal or unenforceable in any respect under the law of any jurisdiction: (a) the validity, legality and enforceability under the law of that jurisdiction of any other provision; and (b) the validity, legality and enforceability under the law of any other jurisdiction of that or any other provision, in each case shall not be affected or impaired in any way; provided, however, that this letter agreement may not be enforced without giving effect to the first paragraph, the second paragraph, the third paragraph, the fourth paragraph, the sixth paragraph, the seventh paragraph and to the cap on the DS Commitment.
DS hereby represents and warrants with respect to himself that (a) he is of sound mind, has the legal capacity to enter into this letter agreement, have entered into this letter agreement on his own will, and understands the nature of the obligations to be assumed by him under this letter agreement, (b) [intentionally omitted], (c) this letter agreement has been duly and validly executed and delivered by him and constitutes a valid and legally binding obligation of him, enforceable against him in accordance with the terms of this letter agreement, except as enforcement hereof may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights or by general equity principles, (d) the execution, delivery and performance of this letter agreement by DS does not violate or result in a breach or default under (i) any material document or agreement to which DS is a party or otherwise binding on DS, or (ii) subject to obtaining any necessary regulatory approvals for the consummation of the funding of the DS Commitment pursuant to this letter agreement and the Closing, any applicable Law unless the failure to receive such regulatory approval would not adversely affect the ability of DS to consummate the funding of the DS Commitment, and (e) he has the financial capacity, and will maintain such financial capacity through the termination hereof, to pay and perform its obligations under this letter agreement, and all funds necessary for DS to fulfill the DS Commitment shall be available to DS for so long as this letter agreement shall remain in effect.
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| Very truly yours, | ||
| DAVID L. SOKOL | ||
| By: | /s/ David L. Sokol | |
| Name: David L. Sokol | ||
| Accepted and Acknowledged as of the date first written above: | ||
| POSEIDON ACQUISITION CORP. | ||
| By: | /s/ David L. Sokol | |
| Name: David L. Sokol | ||
| Title: Chairman | ||
Exhibit 99.15
VOTING AND SUPPORT AGREEMENT
THIS VOTING AND SUPPORT AGREEMENT (this “Agreement”) is made and entered into as of October 31, 2022, by and between Poseidon Acquisition Corp., a Marshall Islands corporation (“Parent”), and each of Hamblin Watsa Investment Counsel Ltd., a Canadian corporation, in its capacity as investment manager and/or authorized power of attorney in respect of the Covered Shares (as defined below) held by the entities listed on Schedule I hereto (other than The Second 810 Holdco Ltd. and The Sixty Three Foundation), The Second 810 Holdco Ltd. and The Sixty Three Foundation (collectively “Shareholder”).
WHEREAS, contemporaneously with the execution of this Agreement, Parent, Poseidon Merger Sub, Inc., a Marshall Islands corporation and a direct wholly owned Subsidiary of Parent (“Merger Sub”), and Atlas Corp., a Marshall Islands corporation (the “Company”), are entering into an Agreement and Plan of Merger, dated as of the date hereof (as amended, the “Merger Agreement”), providing, among other things, for a business combination transaction pursuant to which (i) Merger Sub will be merged with and into the Company, (ii) the separate corporate existence of Merger Sub will thereupon cease and (iii) the Company will continue as the surviving corporation and a wholly-owned Subsidiary of Parent (the “Merger”) in accordance with the Merger Agreement and the Business Corporations Act of the Republic of the Marshall Islands (the “MIBCA”); and
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement and in the Merger Agreement, and intending to be legally bound hereby, the parties hereto agree as follows:
1. Certain Definitions. For the purposes of this Agreement, capitalized terms used but not otherwise defined in this Agreement shall have the meanings ascribed to them in the Merger Agreement, and other capitalized terms used herein shall have the respective meanings ascribed to them in this Section 1.
“Additional Owned Shares” shall mean all Company Common Shares and any other equity securities of the Company beneficially owned, or which become beneficially owned by Shareholder, any of the entities listed on Schedule I, or any of its or their respective controlled Affiliates, after the date hereof and prior to the Expiration Date (including (i) the 6,000,000 Company Common Shares to be issued upon exercise of the warrants held by Shareholder or the entities listed on Schedule I or any of their respective controlled Affiliates in accordance with the JBA (as defined below) and (ii) to the extent released to Shareholder, the 493,076 Argentina Unit Unavailability Indemnity Reserved Shares created under Amendment 2, dated June 30, 2020, to that certain Acquisition Agreement, dated November 20, 2019, by and among the sellers party thereto, Apple Bidco Limited, Seaspan Corporation, the Company and Fairfax Financial Holdings Limited, as the seller representative, as amended).
“Affiliate” shall have the meaning set forth in the Merger Agreement; provided, however, that Parent, Merger Sub, the Company and its Subsidiaries shall not be deemed to be Affiliates of Shareholder or of any of its Affiliates.
“Agreement” has the meaning set forth in the Preamble to this Agreement.
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“beneficial ownership” (and related terms such as “beneficially owned” or “beneficial owner”) shall have the meaning set forth in Rule 13d-3 under the 1934 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).
“Beneficial Ownership Disclosure” shall mean the Schedule 13D filed with the SEC by or on behalf of Shareholder and/or its Affiliates with respect to the Covered Shares, as amended through the date of this Agreement and the Company’s most recent Form 20-F.
“Company” has the meaning set forth in the Recitals to this Agreement.
“Company Shareholders Meeting” shall have the meaning set forth in Section 2 hereof.
“Covered Shares” shall mean the Owned Shares and Additional Owned Shares.
“Exempt Transfer” means any Transfer of Covered Shares to (i) any member of the Fairfax Group, provided that the Shareholder continues to beneficially own the Covered Shares to the same extent or (ii) pursuant to the AVLN Transfer (as further described in the Beneficial Ownership Disclosure) to any member of the Fairfax Group.
“Expiration Date” shall have the meaning set forth in Section 7 hereof.
“Fairfax Group” means Fairfax Financial Holdings Inc., and its controlled Affiliates.
“JBA” shall mean that certain Joint Bidding Agreement, effective as of August 4, 2022, by and among Shareholder, The Second 810 Holdco Ltd., The Sixty Three Foundation, Deep Water Holdings, LLC, The Kyle Roy Washington 2014 Trust, Kyle Roy Washington 2005 Irrevocable Trust u/a/d July 15, 2005, The Kevin Lee Washington 2014 Trust, Ocean Network Express Pte. Ltd. and David L. Sokol, as amended by the JBA Side Letter (as defined below).
“JBA Side Letter” shall mean that certain Letter Agreement, dated as of the date hereof, by and among Shareholder, The Second 810 Holdco Ltd., The Sixty Three Foundation, Deep Water Holdings, LLC, The Kyle Roy Washington 2014 Trust, Kyle Roy Washington 2005 Irrevocable Trust u/a/d July 15, 2005, The Kevin Lee Washington 2014 Trust, Ocean Network Express Pte. Ltd. and David L. Sokol.
“knowledge of Shareholder” shall mean the actual knowledge, after reasonable inquiry, of the Chief Risk Officer and General Counsel of Shareholder.
“Majority Investors” has the meaning set forth in the JBA.
“Merger” has the meaning set forth in the Recitals to this Agreement.
“Merger Agreement” has the meaning set forth in the Recitals to this Agreement.
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“Merger Sub” has the meaning set forth in the Recitals to this Agreement.
“MIBCA” has the meaning set forth in the Recitals to this Agreement.
“Owned Shares” shall mean all Company Common Shares and any other equity securities of the Company which are beneficially owned by Shareholder, the entities listed on Schedule I, or any of their respective controlled Affiliates, as of the date hereof, as set forth on Schedule I.
“Parent” has the meaning set forth in the Preamble to this Agreement.
“Representatives” shall mean, with respect to a Person, all of the officers, directors, employees, consultants, legal representatives, agents, advisors, auditors, investment bankers, and other representatives of such Person and, solely with respect to Shareholder that is not an individual, any of its controlled Affiliates.
“Rollover Agreement” shall mean that certain Rollover and Contribution Agreement, dated as of the date hereof, by and between Parent and Shareholder.
“Shareholder” has the meaning set forth in the Preamble to this Agreement.
“Transfer” shall mean, with respect to a security, the transfer, pledge, hypothecation, encumbrance, assignment, sale, exchange or other disposition (whether by sale, merger, consolidation, liquidation, dissolution, dividend, distribution or otherwise) of such security or the beneficial ownership thereof, the offer to make such a transfer or other disposition, and each option, agreement, arrangement or understanding, whether or not in writing, to effect any of the foregoing. As a verb, “Transfer” shall have a correlative meaning.
2. Agreement to Vote. Prior to the Expiration Date, at any meeting of the shareholders of the Company, however called, or at any adjournment or postponement thereof, or in any other circumstance in which the vote, consent or other approval of the shareholders of the Company is sought (each, a “Company Shareholders Meeting”), Shareholder irrevocably and unconditionally (except as expressly provided herein) agrees that it shall, and shall cause any other holder of record of the Covered Shares to, (a) appear at each such meeting or otherwise cause all Covered Shares to be counted as present thereat for purposes of calculating a quorum and vote (or cause to be voted) all Covered Shares, and (b) if action is to be taken by written consent in lieu of a Company Shareholders Meeting, execute and deliver a written consent (or cause a written consent to be executed and delivered) covering all Covered Shares (in each case to the extent that the Covered Shares are entitled to vote thereon or consent thereto):
(i) in favor of the adoption, approval and authorization of the Merger Agreement as in effect on the date hereof (or any amended and restated Merger Agreement or amendment to the Merger Agreement that, in any such case, (x) increases the Merger Consideration payable for each Company Common Share or (y) other than amendments covered by clause (x), amendments that otherwise result in the Merger Agreement being more favorable to the Company shareholders (solely in their capacity as such) than the Merger Agreement), and the approval of the Merger and the other transactions contemplated by the Merger Agreement;
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(ii) in favor of any adjournment or postponement recommended by the Company with respect to any Company Shareholders Meeting to the extent permitted or required pursuant to Section 6.02 of the Merger Agreement, the MIBCA or the articles of incorporation and bylaws of the Company;
(iii) against any Acquisition Proposal;
(iv) against any merger agreement or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company, in each case except as consented to by Parent or as expressly permitted by the Merger Agreement; and
(v) against any proposal, action or agreement submitted to the shareholders of the Company that is intended to (A) materially impede, frustrate, interfere with, delay, postpone, prevent or otherwise impair the Merger or the other transactions contemplated by the Merger Agreement or (B) result in any of the conditions set forth in Article 9 of the Merger Agreement not being fulfilled. Shareholder shall not commit or agree to take any action inconsistent with the foregoing.
3. No Disposition or Solicitation.
(a) No Disposition. Shareholder hereby covenants and agrees that, except as contemplated by this Agreement and the Merger Agreement, prior to the Expiration Date, Shareholder shall not, directly or indirectly, (i) offer to Transfer, Transfer or consent to any Transfer of any or all of the Covered Shares or the beneficial ownership thereof without the prior written consent of Parent and the Company, (ii) enter into any contract, option or other agreement or understanding with respect to any Transfer of any or all Covered Shares or any beneficial ownership thereof, (iii) tender any Covered Shares into any tender or exchange offer, (iv) deposit any or all of the Covered Shares into a voting trust or enter into a voting agreement or arrangement with respect to any or all of the Covered Shares other than investment management agreements with, and powers-of-attorney held by, Shareholder, (v) grant any proxy, power-of-attorney or other authorization or consent in or with respect to any or all of the Covered Shares that is inconsistent with Section 2 hereof, or (vi) commit or agree to take any of the foregoing actions. Notwithstanding the foregoing but subject to Section 9(d) hereof, Shareholder may Transfer Covered Shares pursuant to an Exempt Transfer; provided that unless Hamblin Watsa Investment Counsel Ltd. acts for the transferee as investment manager and/or authorized power of attorney in respect of the Covered Shares prior to and as a condition to such Exempt Transfer, the transferee of the Covered Shares has agreed to be bound by the terms of this Agreement to the same extent as such Shareholder with respect to the Covered Shares so transferred and the definition of Shareholder shall automatically be amended to include the transferee of the Covered Shares,. If any involuntary Transfer of any of the Covered Shares shall occur (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), Shareholder shall procure that the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee and of any subsequent transferee) take and hold such Covered Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect. Any attempted Transfer (including an Exempt Transfer) of Covered Shares or any interest therein in violation of this Section 3(a) shall be null and void ab initio.
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(b) Non-Solicitation. In addition to its obligations under Section 4 of the JBA, Shareholder has read Section 6.04 of the Merger Agreement and agrees that such Shareholder and its employees and Affiliates will not, directly or indirectly, take any action that would violate Section 6.04 of the Merger Agreement if Shareholder and its employees and Affiliates were deemed Representatives of the Company for purposes of Section 6.04 of the Merger Agreement; provided that, the foregoing shall not serve to limit or restrict any actions taken by Shareholder or its employees and Affiliates in any such Person’s capacity as a director of the Company, to the extent such actions are permitted or required under Section 6.04 of the Merger Agreement. Notwithstanding anything to the contrary herein, this Agreement shall not restrict the ability of Shareholder and its Affiliates and their respective Representatives to review and privately discuss with the Company any Acquisition Proposal or Superior Proposal, including to privately discuss and confirm to the Company the willingness of Shareholder to support and sign a voting and support agreement in connection therewith in the event of, but subject to, any valid termination of the Merger Agreement.
4. Additional Agreements.
(a) Certain Events. In the event of any stock split, stock dividend, merger, reorganization, recapitalization or other change in the capital structure of the Company affecting the Covered Shares or the acquisition of Additional Owned Shares or other securities or rights of the Company by Shareholder, (i) the type and number of Covered Shares shall be adjusted appropriately, and (ii) this Agreement and the obligations hereunder shall automatically attach to any additional Covered Shares or other securities or rights of the Company issued to or acquired by Shareholder.
(b) Waiver of Appraisal and Dissenters’ Rights. Shareholder, on behalf of itself and any other beneficial owner of Owned Shares and any other securities (including any preferred stock of the Company beneficially owned by Shareholder and/or its Affiliates), hereby waives and agrees not to exercise any rights of appraisal or rights to dissent from the Company’s entry into the Merger Agreement or the consummation of the Merger and the other transactions contemplated by the Merger Agreement.
(c) Certain Actions. Shareholder, on behalf of itself and any other beneficial owner of Covered Shares, hereby agrees not to commence or participate in, assist or knowingly encourage, and to take all actions necessary to opt out of, any class in any class action with respect to, any action or claim, derivative or otherwise, in each case in its capacity as a securityholder of the Company, against Parent, Merger Sub, the Company or any of their respective Subsidiaries or Affiliates and each of their successors and assigns relating to the negotiation, execution or delivery of this Agreement or the Merger Agreement or the consummation of the Merger, 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 of the Merger) or (B) alleging a breach of any fiduciary duty of the Board of Directors in connection with the Merger Agreement or the Merger; provided that, except as set forth in Section 4(b), nothing in this Section 4(c) shall restrict or prohibit Shareholder, on behalf of itself and any other beneficial owner of Covered Shares, from (i) commencing or maintaining any action or claim (including a derivative claim on behalf of Parent or Merger Sub) asserting any rights under or seeking to enforce the terms and conditions of this Agreement, the Rollover Agreement, the Merger Agreement, the JBA or any other Transaction Document or (ii) asserting any counterclaims or defenses in any proceeding brought or claims asserted against it by Parent, Merger Sub, the Company (or its stockholders, whether the claim is brought derivatively or directly) or any of their respective Subsidiaries or Affiliates and each of their successors and assigns relating to this Agreement, the Rollover Agreement, the Merger Agreement, the JBA or any other Transaction Document.
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(d) Additional Owned Shares. Shareholder hereby agrees to notify Parent promptly (and in any event within 1 Business Day of filing an amendment to its Schedule 13D) in writing of the number and description of any Additional Owned Shares.
(e) Regulatory Covenant. Shareholder shall, and shall use its commercially reasonable efforts to cause its Affiliates to, consistent with the undertakings and limitations (including with respect to competitively sensitive information and attorney-client privilege) set forth in Section 8.01(c) of the Merger Agreement, supply and provide all necessary information to any Governmental Authority requesting such information in connection with filings or notifications under applicable laws that are required as a result of, or pursuant to, the Merger Agreement, including, without limitation, information required or requested to be provided in connection with any Competition Law and/or Foreign Investment Law in connection with any approvals required (or which the Company and Parent otherwise determine to seek) in connection with the consummation of the Merger.
(f) Proxy Statement and Schedule 13E-3. Shareholder will use its commercially reasonable efforts to furnish all information concerning Shareholder and its Affiliates to Parent and the Company that is reasonably necessary for the preparation and filing of the Proxy Statement and the Schedule 13E-3, and provide such other assistance, as may be reasonably requested by Parent or the Company to be included therein, including the resolution of any comments received from the SEC. To the knowledge of Shareholder, the information supplied by Shareholder for inclusion or incorporation by reference in the Proxy Statement, the Schedule 13E-3 or any filing made with a Governmental Authority pursuant to the terms of the Merger Agreement will not, at the time that such information is provided, 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.
5. Representations and Warranties of Shareholder. Shareholder hereby represents and warrants to Parent and the Company as follows:
(a) Ownership of Shares; Investment Power and Control or Direction. As indicated in the Beneficial Ownership Disclosure, the Fairfax Group, The Second 810 Holdco Ltd. and/or The Sixty Three Foundation (i) own and hold good and valid title to all of the Owned Shares, free and clear of any liens or other restrictions on title that would prevent Shareholder from entering into this Agreement, (ii) have sole voting power, power of disposition, and power to issue instructions with respect to the Owned Shares and power to agree to all of the matters applicable to them set forth in this Agreement, in each case, over all of the Owned Shares, and (iii) the Fairfax Group, The Second 810 Holdco Ltd. and/or The Sixty Three Foundation own no other securities (including debt securities) of the Company or any of its Subsidiaries or securities that are convertible, exercisable or exchangeable for such securities other than the Owned Shares and the Company’s Series J Preferred Shares.
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(b) Organization and Qualification. Shareholder is a legal entity duly organized, validly existing and, to the extent such concept is applicable, in good standing under the laws of the jurisdiction of its organization.
(c) Authority. Shareholder has all necessary entity power and authority and legal capacity to execute, deliver and perform all of Shareholder’s obligations under this Agreement, and to consummate the transactions contemplated hereby, and no other proceedings or actions on the part of Shareholder are necessary to authorize the execution, delivery or performance of, or compliance with, this Agreement.
(d) Due Execution and Delivery. This Agreement has been duly and validly executed and delivered by Shareholder and, assuming due authorization, execution and delivery hereof by Parent, constitutes a legal, valid and binding agreement of Shareholder, enforceable against Shareholder in accordance with its terms, subject to the Enforceability Exceptions.
(e) No Filings; No Conflict or Default. Except for (a) compliance with Competition Laws , (b) compliance with Foreign Investment Laws that are set forth on Section 4.03 of the Company Disclosure Schedule and (c) compliance with any applicable requirements of the 1933 Act, the 1934 Act and any other applicable securities laws, including the filing with the SEC of the Schedule 13E-3 (including the Proxy Statement), no filing with, and no permit, authorization, consent or approval of, any Governmental Authority is necessary for the execution and delivery of this Agreement by Shareholder or the consummation by Shareholder of the transactions contemplated hereby. None of the execution and delivery of this Agreement by Shareholder will (i) result in a violation or breach of, or constitute (with or without notice or lapse of time or both) a default (or give rise to any third party right of termination, cancellation, modification or acceleration) under, any of the terms, conditions or provisions of any Contract to which Shareholder is a party or by which Shareholder or any Shareholder’s properties or assets may be bound, (ii) violate any Order of any Governmental Authority that is applicable to Shareholder or Shareholder’s properties or assets, (iii) constitute a violation by Shareholder of any law or regulation of any jurisdiction applicable to Shareholder or (iv) contravene or conflict with Shareholder’s governing or organizational documents, in each case, except, in the case of clauses (i) through (iv), for any conflict, breach, default or violation described above which would not reasonably be expect to materially impair the ability of Shareholder to perform its obligations under this Agreement.
(f) No Litigation. As of the date hereof, there is no Legal Action pending or, to the knowledge of Shareholder, threatened against Shareholder at law or in equity before or by any Governmental Authority that restricts or prohibits (or, if successful, would restrict or prohibit) the beneficial or record ownership of Shareholder’s Covered Shares or that would reasonably be expected to impair the ability of Shareholder to perform its obligations under this Agreement.
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(g) No Fees. No broker, finder or investment banker is entitled to any brokerage, finder’s or other similar fee or commission in connection with this Agreement or the Merger based upon arrangements made by or on behalf of Shareholder.
6. Representations and Warranties of Parent. Parent hereby represents and warrants to Shareholder as follows:
(a) Organization and Qualification. Parent is a legal entity duly organized, validly existing and, to the extent such concept is applicable, in good standing under the laws of the jurisdiction of its organization.
(b) Authority. Parent has all necessary corporate power and authority and legal capacity to execute, deliver and perform all of Parent’s obligations under this Agreement, and to consummate the transactions contemplated hereby, and no other proceedings or actions on the part of Parent are necessary to authorize the execution, delivery or performance of, or compliance with, this Agreement.
(c) Due Execution and Delivery. This Agreement has been duly and validly executed and delivered by Parent and, assuming due authorization, execution and delivery hereof by Shareholder, constitutes a legal, valid and binding agreement of Parent, enforceable against Parent in accordance with its terms, subject to the Enforceability Exceptions.
(d) No Filings; No Conflict or Default. Except for (a) compliance with applicable Competition Laws and (b) compliance with applicable Foreign Investment Laws that are set forth on Section 4.03 of the Company Disclosure Schedule and (c) compliance with any applicable requirements of the 1933 Act, the 1934 Act and any other applicable securities laws, including the filing with the SEC of the Schedule 13E-3 (including the Proxy Statement), no filing with, and no permit, authorization, consent or approval of, any Governmental Authority is necessary for the execution and delivery of this Agreement by Parent or the consummation by Parent of the transactions contemplated hereby. None of the execution and delivery of this Agreement by Parent will (i) result in a violation or breach of, or constitute (with or without notice or lapse of time or both) a default (or give rise to any third party right of termination, cancellation, modification or acceleration) under, any of the terms, conditions or provisions of any Contract to which Parent is a party or by which Parent or any of Parent’s properties or assets may be bound, (ii) violate any judgment, order, writ, injunction, decree or award of any court, administrative agency or other Governmental Authority that is applicable to Parent or any of Parent’s properties or assets, (iii) constitute a violation by Parent of any law or regulation of any jurisdiction, or (iv) contravene or conflict with Parent’s governing or organizational documents, in each case, except, in the case of clauses (i) through (iii), for any conflict, breach, default or violation described above which would not materially impair the ability of Parent to perform its obligations under this Agreement.
(e) No Litigation. As of the date hereof, there is no action, investigation or proceeding pending or, to the knowledge of Parent, threatened against Parent at law or in equity before or by any Governmental Authority that restricts or prohibits (or, if successful, would restrict or prohibit) the validity of this Agreement or that would reasonably be expected to impair the ability of Parent to perform its obligations under this Agreement.
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(f) Other Voting Agreements. Parent has delivered to Shareholder a complete and accurate copy of each other voting agreement (however characterized) being entered into with shareholders, directors or officers of the Company in connection with the Merger.
(g) No Other Representations. Parent acknowledges and agrees that other than the representations expressly set forth in this Agreement, Shareholder has not made, and is not making, any representations or warranties to Parent with respect to the Company, Shareholder’s ownership of Company Common Shares, the Merger Agreement or any other matter. Parent hereby specifically disclaims reliance upon any representations or warranties (other than the representations expressly set forth in this Agreement).
7. Termination. This Agreement and all rights and obligations of the parties hereunder shall commence on the date hereof and shall terminate upon the earliest to occur of the following (such time, the “Expiration Date”): (a) the Effective Time and (b) the valid termination of the Merger Agreement pursuant to Article 10 thereof. If this Agreement is validly terminated pursuant to this Section 7, this Agreement shall become void and of no effect without liability of any party to any of the other parties hereto, whether in contract or in tort or any other theory of liability whatsoever; provided that the Surviving Provisions (as defined in the JBA), this Section 7 and Section 4(c) (together with Articles 1 and 9 to the extent relevant to said Sections 7 and 4(c)) shall survive such termination to the extent set forth therein.
8. No Limitation. Nothing in this Agreement shall be construed to prohibit Shareholder or any of Shareholder’s Representatives who is a member of the Board of Directors from taking any action (or failing to take any action) solely in his or her capacity as a member of the Board of Directors (or any committee thereof) or from taking any action with respect to any Acquisition Proposal as a member of the Board of Directors (or any committee thereof).
9. Miscellaneous.
(a) Entire Agreement. Without limiting the provisions of the JBA, the Rollover Agreement or any other Transaction Document, this Agreement (together with Schedule I), constitutes the entire agreement and supersedes all prior and contemporaneous agreements and understandings, both written and oral, among or between any of the parties hereto with respect to the subject matter hereof. The parties agree and acknowledge that the existence and terms of the JBA shall have no effect on, and in no manner impair or alter, the Company’s rights under this Agreement.
(b) Reasonable Efforts. At the other party’s reasonable request and without further consideration, each party hereto shall use reasonable best efforts to take all such further lawful action as may be reasonably required or necessary to comply with its obligations hereunder.
(c) No Assignment. This Agreement shall be binding upon, and shall be enforceable by and inure to the benefit of, the parties hereto and their respective successors and permitted assigns. Except in connection with an Exempt Transfer, this Agreement shall not be assignable by any party, in whole or in part, by operation of law or otherwise, without the express prior written consent of the other parties hereto and the Special Committee (on behalf of the Company). Any attempted assignment in violation of the terms of this Section 9(c) shall be null and void ab initio.
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(d) Binding Successors. Without limiting any other rights Parent may have hereunder in respect of any Transfer (including Exempt Transfer) of the Covered Shares, Shareholder agrees that this Agreement and the obligations hereunder shall attach to the Covered Shares beneficially owned by Shareholder and its Affiliates and shall automatically and without need for further documentation be binding upon any Person to which beneficial ownership of such Covered Shares shall pass, whether by operation of law or otherwise, including, without limitation, Shareholder’s heirs, guardians, administrators, Representatives, transferees (including pursuant to Exempt Transfers), successors or permitted assigns; provided that if such person is not a party to or is not represented by Hamblin Watsa Investment Counsel Ltd. for the purposes of the Rollover Agreement, then such person will enter into a Rollover and Contribution Agreement with Parent, on the same terms as the Rollover Agreement, or a joinder thereto.
(e) Amendments. This Agreement may be amended at any time prior to the Effective Time (whether before or after receipt of the Company Shareholder Approval) by an instrument in writing signed on behalf of each of the parties hereto and the Special Committee (on behalf of the Company). Notwithstanding the foregoing, except as otherwise expressly set forth in the JBA, (i) Parent and Merger Sub (as applicable) shall not terminate or amend this Agreement, the Rollover Agreement, the Merger Agreement or any other Definitive Transaction Document (as defined in the JBA) without the unanimous written approval of the Majority Investors, and (ii) no waiver of any condition precedent or any of Parent’s or Merger Sub’s rights under any of the foregoing agreements shall be effective without the unanimous written approval of the Majority Investors.
(f) Notices. All notices, requests, instruction, demands and other communications under this Agreement shall be in writing and shall be deemed given (i) when delivered personally by hand (with written confirmation of receipt), (ii) on the date sent by e-mail if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (iii) when received by the addressee if sent by nationally recognized overnight delivery service (with written confirmation of receipt), in each case, at the following addresses (or to such other address as a party may have specified by notice given to the other party pursuant to this provision):
if to Parent:
Poseidon Acquisition Corp.
Trust
Company Complex
Ajeltake Road, Ajeltake Island
Majuro, Marshall Islands MH96960
Attention: David L. Sokol
Email:
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with copies (which shall not constitute notice) to:
Honigman LLP
2290 First National Building
600 Woodward Avenue
Detroit, MI 48226
| Attention: | Tracy Larsen; Jeff Kuras; Barbara Kaye |
Email:
and
Latham & Watkins LLP
1271 Avenue of the Americas
New York, NY 10020
| Attention: | David Kurzweil |
Email:
and
Torys LLP
1114 Avenue of the Americas, 23rd Floor
New York, NY 10036
| Attention: | Michael Horwitz |
Email:
and
K&L Gates LLP
925 Fourth Avenue, Suite 2900
Seattle, WA 98104
| Attention: | Stephan Coonrod; Christopher H. Cunningham; Chris Bellavia |
Email:
if to Shareholder or the FF Group:
c/o Hamblin Watsa Investment Counsel Ltd.
95 Wellington Street West, Suite 802
Toronto, Ontario, Canada M5J 2N7
| Attention: | General Counsel |
Email:
with a copy (which shall not constitute notice) to:
Torys LLP
1114 Avenue of the Americas, 23rd Floor
New York, NY 10036
| Attention: | Michael Horwitz |
Email:
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(g) Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the parties hereto agree that the court making such determination shall have the power to limit the term or provision, to delete specific words or phrases or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term.
(h) Remedies. All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise of any such right, power or remedy by any party hereto shall not preclude the simultaneous or later exercise of any other such right, power or remedy by such party.
(i) No Waiver. Except as otherwise provided in this Agreement, any failure of any of the parties to comply with any obligation, covenant, agreement or condition herein may be waived by the party or parties entitled to the benefits thereof (including, as applicable, the Special Committee (on behalf of the Special Committee (on behalf of the Company))) only by a written instrument signed by the party granting such waiver (including, as applicable, the Company). Any such waiver shall not be applicable or have any effect except in the specific instance in which it is given. No failure on the part of any party to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any party in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy. No single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy.
(j) Third Party Beneficiaries. This Agreement shall be binding solely upon the parties hereto and their successors and permitted assignees and inure solely to the benefit of Parent, and nothing set forth in this Agreement shall be construed to confer upon any Person other than Parent any benefits, rights or remedies under or by reason of this Agreement, or any rights to enforce or cause Parent to enforce any other provisions of this agreement; provided, however, that, subject to the terms and conditions set forth in this Agreement, in the JBA and in the Merger Agreement, each Majority Investor and the Special Committee (on behalf of the Company) is hereby made a third party beneficiary of the rights granted to Parent hereby for the purpose of obtaining specific performance of the Shareholder’s obligations hereunder (which right of specific performance may be sought directly against Shareholder or indirectly through Parent) and for no other purpose (including, without limitation, any claim for monetary damages hereunder).
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(k) Governing Law; Forum; Waiver of Jury Trial.
(i) To the maximum extent permitted by applicable law, this Agreement and all claims or causes of action (whether in contract, tort or otherwise) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance of this Agreement shall be governed and construed in accordance with the laws of the State of Delaware, without regard to principles of conflicts of law, except (a) to the extent that the law of the Republic of the Marshall Islands is mandatorily applicable to the Merger and (b) all matters relating to the fiduciary duties of the Board of Directors are subject to the laws of the Republic of the Marshall Islands.
(ii) Each party hereto agrees that this Agreement has been entered into by the parties hereto in express reliance upon 6 Del. C. § 2708. Each of the parties, to the maximum extent permitted by applicable law, (a) irrevocably submits to the personal jurisdiction of any state or federal court sitting in the state of Delaware, as well as to the jurisdiction of all courts to which an appeal may be taken from such courts, in any suit, action or proceeding arising out of or relating to this Agreement (except as provided in Section 9(k)(i) above), (b) agrees that all claims in respect of such suit, action or proceeding shall be brought, heard and determined exclusively in the Delaware Court of Chancery (provided that, in the event that subject matter jurisdiction is unavailable in that court, then all such claims shall be brought, heard and determined exclusively in any other state or federal court sitting in the state of Delaware), (c) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from such court, (d) agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court, and (e) expressly waives, and agrees not to plead or to make any claim that any such action or proceeding is subject (in whole or in part) to a jury trial, (f) agrees (1) to the extent such party is not otherwise subject to service of process in the State of Delaware, to appoint and maintain an agent in the State of Delaware as such party’s agent for acceptance of legal process, and (2) that, to the fullest extent permitted by applicable law, service of process may also be made on such party by prepaid certified mail with a proof of mailing receipt validated by the United States Postal Service constituting evidence of valid service, and that service made pursuant to (f)(1) or (2) above shall, to the fullest extent permitted by applicable law, have the same legal force and effect as if served upon such party personally within the State of Delaware and (g) waives, to the fullest extent permitted by applicable law, any objection 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 brought in any such court has been brought in an inconvenient forum. For purposes of implementing the parties’ agreement to appoint and maintain an agent for service of process in the State of Delaware, each such party that has not as of the date hereof already duly appointed such an agent in Delaware does hereby appoint CT Corporation, as such agent. Each of the parties waives any defense of inconvenient forum to the maintenance of any action or proceeding brought in accordance with this paragraph. Each of the parties further consents and agrees that, to the maximum extent permitted by applicable law, process in any suit, action or proceeding may be served on such party in accordance with the notice provisions of Section 9(f) of this Agreement.
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(iii) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATION OF THIS WAIVER, (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) EACH OTHER PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
(l) Specific Performance. The parties hereto agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with its terms, and that monetary damages, even if available, would not be an adequate remedy therefor. Accordingly, the parties hereto agree that the parties (as well as the Majority Investors and the Company as set forth in Section 9(j)) shall be entitled to an injunction or injunctions, or any other appropriate form of equitable relief, to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof, without the necessity of proving the inadequacy of money damages as a remedy (and each party hereby waives any requirement for the securing or posting of any bond in connection with such remedy), in addition to any other remedy to which they are entitled at law or in equity. The parties further agree that neither the commencement of any action pursuant to this Section 9(l) nor anything contained in this Section 9(l) shall restrict or limit any party’s or the Company’s (as a third party beneficiary under this Agreement) right to pursue any other remedies under this Agreement that may be available then or thereafter.
(m) Interpretation. The descriptive headings used herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. The words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.” The parties hereto have participated jointly in the negotiation and drafting of this Agreement. No provision of this Agreement shall be interpreted for or against any party hereto because that party or its legal representatives drafted the provision. The word “or” shall be deemed to be inclusive. The words “hereof,” “hereto,” “hereby,” “herein,” “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not any particular section in which such words appear.
(n) Counterparts. This Agreement may be executed and delivered (including by facsimile or other form of electronic transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by facsimile or other electronic delivery shall be sufficient to bind the parties to the terms and conditions of this Agreement and may be signed electronically.
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(o) Expenses. Except as otherwise provided in the JBA, each party hereto shall pay such party’s own expenses incurred in connection with this Agreement.
(p) No Ownership Interest. Nothing contained in this Agreement shall be deemed, upon execution, to vest in Parent any direct or indirect ownership or incidence of ownership of or with respect to any Covered Shares, and Parent shall have no authority to manage, direct, superintend, restrict, regulate, govern or administer any of the policies or operations of the Company or exercise any power or authority to direct Shareholder or any of the entities listed on Schedule I hereto in the voting of any of the Covered Shares, except as otherwise provided herein.
(q) Capacity as Shareholder. Notwithstanding anything herein to the contrary, Shareholder signs this Agreement solely in its capacity as investment manager of and/or authorized power of attorney in respect of the Covered Shares held by the entities listed in Schedule I, and not in any other capacity, and this Agreement shall not limit or otherwise affect the actions (or failure to take any actions) of any Affiliate, director, employee or designee of Shareholder or any of its Affiliates in his or her capacity, if applicable, as an officer or director of the Company or any other Person.
[Signature page follows]
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IN WITNESS WHEREOF, Parent and Shareholder have caused this Agreement to be duly executed as of the date first above written.
| POSEIDON ACQUISITION CORP. | ||
| By: | /s/ David L. Sokol | |
| Name: | David L. Sokol | |
| Title: | Chairman | |
[Signature Page to Voting and Support Agreement]
| Hamblin Watsa Investment Counsel Ltd., in its capacity as investment manager and/or pursuant to a power of attorney on behalf of all entities set out on Schedule I hereto, other than The Section 810 Holdco Ltd. and The Sixty Three Foundation | ||
| By: | /s/ Peter Clarke | |
| Name: | Peter Clarke | |
| Title: | Chief Risk Officer | |
| THE SECOND 810 HOLDCO LTD. | ||
| By: | /s/ V. Prem Watsa | |
| Name: | V. Prem Watsa | |
| Title: | President | |
| THE SIXTY THREE FOUNDATION | ||
| By: | /s/ V. Prem Watsa | |
| Name: | V. Prem Watsa | |
| Title: | Director | |
[Signature Page to Voting and Support Agreement]
SCHEDULE I
Shareholder beneficially owns 125,759,155 Company Common Shares (which are held by the entities listed below) and certain warrants to purchase 6,000,000 additional Company Common Shares (which are held by the Fairfax Group). Additional detail is set forth in the Beneficial Ownership Disclosure.
Allied World Assurance Company (Europe) dac
Allied World Assurance Company (U.S.) Inc.
Allied World Assurance Company, AG
Allied World Assurance Company, Ltd
Allied World Insurance Company
Allied World National Assurance Company
Allied World Specialty Insurance Company
Allied World Surplus Lines Insurance Company
Brit Reinsurance (Bermuda) Limited
Brit Syndicates Limited
Brit UW Limited
Fairfax (Barbados) International Corp.
Fairfax Financial Holdings Limited
Greystone Insurance Company
Hilltop Specialty Insurance Company
Hudson Excess Insurance Company
Hudson Insurance Company
HWIC Global Equity Fund
Newline Corporate Name Limited
Odyssey Group Holdings, Inc.
Odyssey Reinsurance Company
RiverStone Corporate Capital Limited
RiverStone Insurance (UK) Limited
The North River Insurance Company
The Second 810 Holdco Ltd.
The Sixty Three Foundation
TIG Insurance (Barbados) Limited
TIG Insurance Company
Trustees of Newline Syndicate 1218
United States Fire Insurance Company
Wentworth Insurance Company Ltd.
Zenith Insurance Company
Exhibit 99.16
VOTING AND SUPPORT AGREEMENT
THIS VOTING AND SUPPORT AGREEMENT (this “Agreement”) is made and entered into as of October 31, 2022, by and between Poseidon Acquisition Corp., a Marshall Islands corporation (“Parent”), and each of Deep Water Holdings, LLC, The Kyle Roy Washington 2014 Trust, Kyle Roy Washington 2005 Irrevocable Trust u/a/d July 15, 2005, and The Kevin Lee Washington 2014 Trust (on behalf of each entity and each as a signatory hereto) (collectively “Shareholder”).
WHEREAS, contemporaneously with the execution of this Agreement, Parent, Poseidon Merger Sub, Inc., a Marshall Islands corporation and a direct wholly owned Subsidiary of Parent (“Merger Sub”), and Atlas Corp., a Marshall Islands corporation (the “ Company”), are entering into an Agreement and Plan of Merger, dated as of the date hereof (as amended, the “Merger Agreement”), providing, among other things, for a business combination transaction pursuant to which (i) Merger Sub will be merged with and into the Company, (ii) the separate corporate existence of Merger Sub will thereupon cease and (iii) the Company will continue as the surviving corporation and a wholly-owned Subsidiary of Parent (the “Merger”) in accordance with the Merger Agreement and the Business Corporations Act of the Republic of the Marshall Islands (the “MIBCA”); and
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement and in the Merger Agreement, and intending to be legally bound hereby, the parties hereto agree as follows:
1. Certain Definitions. For the purposes of this Agreement, capitalized terms used but not otherwise defined in this Agreement shall have the meanings ascribed to them in the Merger Agreement, and other capitalized terms used herein shall have the respective meanings ascribed to them in this Section 1.
“Additional Owned Shares” shall mean all Company Common Shares and any other equity securities of the Company beneficially owned, or which become beneficially owned by Shareholder, or any of their respective controlled Affiliates, after the date hereof and prior to the Expiration Date.
“Affiliate” shall have the meaning set forth in the Merger Agreement; provided, however, that Parent, Merger Sub, the Company and its Subsidiaries shall not be deemed to be Affiliates of Shareholder or of any of its Affiliates.
“Agreement” has the meaning set forth in the Preamble to this Agreement.
“beneficial ownership” (and related terms such as “beneficially owned” or “beneficial owner”) shall have the meaning set forth in Rule 13d-3 under the 1934 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).
“Company” has the meaning set forth in the Recitals to this Agreement.
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“Company Shareholders Meeting” shall have the meaning set forth in Section 2 hereof.
“Covered Shares” shall mean the Owned Shares and Additional Owned Shares.
“ECL” shall mean that certain Equity Commitment Letter, dated as of the date hereof, by and between Shareholder, Washington Investments, LLC (solely with respect to the Guaranty contained therein) and Parent.
“Exempt Transfer” means any Transfer of Covered Shares to (i) any subsidiary of the ultimate parent entity of Shareholder, (ii) TWC Principal, (iii) any member of TWC Principal’s immediate family or his lineal descendants (the “Permitted Family Members”), (iv) trusts or other entities for the benefit of TWC Principal or his Permitted Family Members or (v) upon TWC Principal’s death, his executors, administrators, testamentary trustees, legatees and beneficiaries; provided that, in the case of clauses (iv) and (v), Shareholder (including any trustee), TWC Principal, or with respect to clause (v), TWC Principal’s executor or personal representative, shall retain the sole and exclusive right to vote and dispose of any such Covered Shares transferred to the Permitted Family Member or trust.
“Expiration Date” shall have the meaning set forth in Section 7 hereof.
“JBA” shall mean that certain Joint Bidding Agreement, effective as of August 4, 2022, by and among Shareholder, Hamblin Watsa Investment Counsel Ltd., The Second 810 Holdco Ltd., The Sixty Three Foundation, Ocean Network Express Pte. Ltd. and David L. Sokol, as amended by the JBA Side Letter (as defined below).
“JBA Side Letter” shall mean that certain Letter Agreement, dated as of the date hereof, by and among Shareholder, Hamblin Watsa Investment Counsel Ltd., The Second 810 Holdco Ltd., The Sixty Three Foundation, Ocean Network Express Pte. Ltd. and David L. Sokol, as amended.
“knowledge of Shareholder” shall mean the actual knowledge, after reasonable inquiry, of Larry Simkins, Jerry Lemon and Joe Racicot.
“Majority Investors” has the meaning set forth in the JBA.
“Merger” has the meaning set forth in the Recitals to this Agreement.
“Merger Agreement” has the meaning set forth in the Recitals to this Agreement.
“Merger Sub” has the meaning set forth in the Recitals to this Agreement.
“MIBCA” has the meaning set forth in the Recitals to this Agreement.
“Owned Shares” shall mean all Company Common Shares and any other equity securities of the Company which are beneficially owned by Shareholder or any of their respective controlled Affiliates, as of the date hereof, as set forth on Schedule I.
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“Parent” has the meaning set forth in the Preamble to this Agreement.
“Representatives” shall mean, with respect to a Person, all of the officers, directors, employees, consultants, legal representatives, agents, advisors, auditors, investment bankers, and other representatives of such Person and, solely with respect to Shareholder that is not an individual, any of its controlled Affiliates.
“Rollover Agreement” shall mean that certain Rollover and Contribution Agreement, dated as of the date hereof, by and between Parent and Shareholder.
“Shareholder” has the meaning set forth in the Preamble to this Agreement.
“Transfer” shall mean, with respect to a security, the transfer, pledge, hypothecation, encumbrance, assignment, sale, exchange or other disposition (whether by sale, merger, consolidation, liquidation, dissolution, dividend, distribution or otherwise) of such security or the beneficial ownership thereof, the offer to make such a transfer or other disposition, and each option, agreement, arrangement or understanding, whether or not in writing, to effect any of the foregoing. As a verb, “Transfer” shall have a correlative meaning.
“TWC Principal” shall mean Dennis Washington.
2. Agreement to Vote. Prior to the Expiration Date, at any meeting of the shareholders of the Company, however called, or at any adjournment or postponement thereof, or in any other circumstance in which the vote, consent or other approval of the shareholders of the Company is sought (each, a “Company Shareholders Meeting”), Shareholder irrevocably and unconditionally (except as expressly provided herein) agrees that it shall, and shall cause any other holder of record of the Covered Shares to, (a) appear at each such meeting or otherwise cause all Covered Shares to be counted as present thereat for purposes of calculating a quorum and vote (or cause to be voted) all Covered Shares, and (b) if action is to be taken by written consent in lieu of a Company Shareholders Meeting, execute and deliver a written consent (or cause a written consent to be executed and delivered) covering all Covered Shares (in each case to the extent that the Covered Shares are entitled to vote thereon or consent thereto):
(i) in favor of the adoption, approval and authorization of the Merger Agreement as in effect on the date hereof (or any amended and restated Merger Agreement or amendment to the Merger Agreement that, in any such case, (x) increases the Merger Consideration payable for each Company Common Share or (y) other than amendments covered by clause (x), amendments that otherwise result in the Merger Agreement being more favorable to the Company shareholders (solely in their capacity as such) than the Merger Agreement), and the approval of the Merger and the other transactions contemplated by the Merger Agreement;
(ii) in favor of any adjournment or postponement recommended by the Company with respect to any Company Shareholders Meeting to the extent permitted or required pursuant to Section 6.02 of the Merger Agreement, the MIBCA or the articles of incorporation and bylaws of the Company;
(iii) against any Acquisition Proposal;
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(iv) against any merger agreement or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company, in each case except as consented to by Parent or as expressly permitted by the Merger Agreement; and
(v) against any proposal, action or agreement submitted to the shareholders of the Company that is intended to (A) materially impede, frustrate, interfere with, delay, postpone, prevent or otherwise impair the Merger or the other transactions contemplated by the Merger Agreement or (B) result in any of the conditions set forth in Article 9 of the Merger Agreement not being fulfilled. Shareholder shall not commit or agree to take any action inconsistent with the foregoing.
3. No Disposition or Solicitation.
(a) No Disposition. Shareholder hereby covenants and agrees that, except as contemplated by this Agreement and the Merger Agreement, prior to the Expiration Date, Shareholder shall not, directly or indirectly, (i) offer to Transfer, Transfer or consent to any Transfer of any or all of the Covered Shares or the beneficial ownership thereof without the prior written consent of Parent and the Company, (ii) enter into any contract, option or other agreement or understanding with respect to any Transfer of any or all Covered Shares or any beneficial ownership thereof, (iii) tender any Covered Shares into any tender or exchange offer, (iv) deposit any or all of the Covered Shares into a voting trust or enter into a voting agreement or arrangement with respect to any or all of the Covered Shares other than investment management agreements with, and powers-of-attorney held by, Shareholder, (v) grant any proxy, power-of-attorney or other authorization or consent in or with respect to any or all of the Covered Shares that is inconsistent with Section 2 hereof, or (vi) commit or agree to take any of the foregoing actions. Notwithstanding the foregoing but subject to Section 9(d) hereof, Shareholder may Transfer Covered Shares pursuant to an Exempt Transfer; provided that prior to and as a condition to such Exempt Transfer, the transferee of the Covered Shares has agreed to be bound by the terms of this Agreement to the same extent as such Shareholder with respect to the Covered Shares so transferred and the definition of Shareholder shall automatically be amended to include the transferee of the Covered Shares,. If any involuntary Transfer of any of the Covered Shares shall occur (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), Shareholder shall procure that the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee and of any subsequent transferee) take and hold such Covered Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect. Any attempted Transfer (including an Exempt Transfer) of Covered Shares or any interest therein in violation of this Section 3(a) shall be null and void ab initio.
(b) Non-Solicitation. In addition to its obligations under Section 4 of the JBA, Shareholder has read Section 6.04 of the Merger Agreement and agrees that such Shareholder and its employees and Affiliates will not, directly or indirectly, take any action that would violate Section 6.04 of the Merger Agreement if Shareholder and its employees and Affiliates were deemed Representatives of the Company for purposes of Section 6.04 of the Merger Agreement; provided that, the foregoing shall not serve to limit or restrict any actions taken by Shareholder or its employees and Affiliates in any such Person’s capacity as a director of the Company, to the extent such actions are permitted or required under Section 6.04 of the Merger Agreement. Notwithstanding anything to the contrary herein, this Agreement shall not restrict the ability of Shareholder and its Affiliates and their respective Representatives to review and privately discuss with the Company any Acquisition Proposal or Superior Proposal, including to privately discuss and confirm to the Company the willingness of Shareholder to support and sign a voting and support agreement in connection therewith in the event of, but subject to, any valid termination of the Merger Agreement.
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4. Additional Agreements.
(a) Certain Events. In the event of any stock split, stock dividend, merger, reorganization, recapitalization or other change in the capital structure of the Company affecting the Covered Shares or the acquisition of Additional Owned Shares or other securities or rights of the Company by Shareholder, (i) the type and number of Covered Shares shall be adjusted appropriately, and (ii) this Agreement and the obligations hereunder shall automatically attach to any additional Covered Shares or other securities or rights of the Company issued to or acquired by Shareholder.
(b) Waiver of Appraisal and Dissenters’ Rights. Shareholder, on behalf of itself and any other beneficial owner of Owned Shares and any other securities (including any preferred stock of the Company beneficially owned by Shareholder and/or its Affiliates), hereby waives and agrees not to exercise any rights of appraisal or rights to dissent from the Company’s entry into the Merger Agreement or the consummation of the Merger and the other transactions contemplated by the Merger Agreement.
(c) Certain Actions. Shareholder, on behalf of itself and any other beneficial owner of Covered Shares, hereby agrees not to commence or participate in, assist or knowingly encourage, and to take all actions necessary to opt out of, any class in any class action with respect to, any action or claim, derivative or otherwise, in each case in its capacity as a securityholder of the Company, against Parent, Merger Sub, the Company or any of their respective Subsidiaries or Affiliates and each of their successors and assigns relating to the negotiation, execution or delivery of this Agreement or the Merger Agreement or the consummation of the Merger, 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 of the Merger) or (B) alleging a breach of any fiduciary duty of the Board of Directors in connection with the Merger Agreement or the Merger; provided that, except as set forth in Section 4(b), nothing in this Section 4(c) shall restrict or prohibit Shareholder, on behalf of itself and any other beneficial owner of Covered Shares, from (i) commencing or maintaining any action or claim (including a derivative claim on behalf of Parent or Merger Sub) asserting any rights under or seeking to enforce the terms and conditions of this Agreement, the Rollover Agreement, the Merger Agreement, the JBA or any other Transaction Document or (ii) asserting any counterclaims or defenses in any proceeding brought or claims asserted against it by Parent, Merger Sub, the Company (or its stockholders, whether the claim is brought derivatively or directly) or any of their respective Subsidiaries or Affiliates and each of their successors and assigns relating to this Agreement, the Rollover Agreement, the Merger Agreement, the JBA or any other Transaction Document.
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(d) Additional Owned Shares. Shareholder hereby agrees to notify Parent promptly (and in any event within 1 Business Day of filing an amendment to its Schedule 13D) in writing of the number and description of any Additional Owned Shares.
(e) Regulatory Covenant. Shareholder shall, and shall use its commercially reasonable efforts to cause its Affiliates to, consistent with the undertakings and limitations (including with respect to competitively sensitive information and attorney-client privilege) set forth in Section 8.01(c) of the Merger Agreement, supply and provide all necessary information to any Governmental Authority requesting such information in connection with filings or notifications under applicable laws that are required as a result of, or pursuant to, the Merger Agreement, including, without limitation, information required or requested to be provided in connection with any Competition Law and/or Foreign Investment Law in connection with any approvals required (or which the Company and Parent otherwise determine to seek) in connection with the consummation of the Merger.
(f) Proxy Statement and Schedule 13E-3. Shareholder will use its commercially reasonable efforts to furnish all information concerning Shareholder and its Affiliates to Parent and the Company that is reasonably necessary for the preparation and filing of the Proxy Statement and the Schedule 13E-3, and provide such other assistance, as may be reasonably requested by Parent or the Company to be included therein, including the resolution of any comments received from the SEC. To the knowledge of Shareholder, the information supplied by Shareholder for inclusion or incorporation by reference in the Proxy Statement, the Schedule 13E-3 or any filing made with a Governmental Authority pursuant to the terms of the Merger Agreement will not, at the time that such information is provided, 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.
5. Representations and Warranties of Shareholder. Shareholder hereby represents and warrants to Parent and the Company as follows:
(a) Ownership of Shares; Investment Power and Control or Direction. As of the date hereof, Shareholder (i) owns and holds good and valid title to all of the Owned Shares, free and clear of any liens or other restrictions on title that would prevent Shareholder from entering into this Agreement, (ii) has sole voting power, power of disposition, and power to issue instructions with respect to the Owned Shares and power to agree to all of the matters applicable to them set forth in this Agreement, in each case, over all of the Owned Shares, and (iii) Shareholder owns no other securities (including debt securities) of the Company or any of its Subsidiaries or securities that are convertible, exercisable or exchangeable for such securities other than the Owned Shares.
(b) Organization and Qualification. Shareholder is a legal entity duly organized, validly existing and, to the extent such concept is applicable, in good standing under the laws of the jurisdiction of its organization.
(c) Authority. Shareholder has all necessary entity power and authority and legal capacity to execute, deliver and perform all of Shareholder’s obligations under this Agreement, and to consummate the transactions contemplated hereby, and no other proceedings or actions on the part of Shareholder are necessary to authorize the execution, delivery or performance of, or compliance with, this Agreement.
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(d) Due Execution and Delivery. This Agreement has been duly and validly executed and delivered by Shareholder and, assuming due authorization, execution and delivery hereof by Parent, constitutes a legal, valid and binding agreement of Shareholder, enforceable against Shareholder in accordance with its terms, subject to the Enforceability Exceptions.
(e) No Filings; No Conflict or Default. Except for (a) compliance with Competition Laws , (b) compliance with Foreign Investment Laws that are set forth on Section 4.03 of the Company Disclosure Schedule and (c) compliance with any applicable requirements of the 1933 Act, the 1934 Act and any other applicable securities laws, including the filing with the SEC of the Schedule 13E-3 (including the Proxy Statement), no filing with, and no permit, authorization, consent or approval of, any Governmental Authority is necessary for the execution and delivery of this Agreement by Shareholder or the consummation by Shareholder of the transactions contemplated hereby. None of the execution and delivery of this Agreement by Shareholder will (i) result in a violation or breach of, or constitute (with or without notice or lapse of time or both) a default (or give rise to any third party right of termination, cancellation, modification or acceleration) under, any of the terms, conditions or provisions of any Contract to which Shareholder is a party or by which Shareholder or any Shareholder’s properties or assets may be bound, (ii) violate any Order of any Governmental Authority that is applicable to Shareholder or Shareholder’s properties or assets, (iii) constitute a violation by Shareholder of any law or regulation of any jurisdiction applicable to Shareholder or (iv) contravene or conflict with Shareholder’s governing or organizational documents, in each case, except, in the case of clauses (i) through (iv), for any conflict, breach, default or violation described above which would not reasonably be expect to materially impair the ability of Shareholder to perform its obligations under this Agreement.
(f) No Litigation. As of the date hereof, there is no Legal Action pending or, to the knowledge of Shareholder, threatened against Shareholder at law or in equity before or by any Governmental Authority that restricts or prohibits (or, if successful, would restrict or prohibit) the beneficial or record ownership of Shareholder’s Covered Shares or that would reasonably be expected to impair the ability of Shareholder to perform its obligations under this Agreement.
(g) No Fees. No broker, finder or investment banker is entitled to any brokerage, finder’s or other similar fee or commission in connection with this Agreement or the Merger based upon arrangements made by or on behalf of Shareholder.
6. Representations and Warranties of Parent. Parent hereby represents and warrants to Shareholder as follows:
(a) Organization and Qualification. Parent is a legal entity duly organized, validly existing and, to the extent such concept is applicable, in good standing under the laws of the jurisdiction of its organization.
(b) Authority. Parent has all necessary corporate power and authority and legal capacity to execute, deliver and perform all of Parent’s obligations under this Agreement, and to consummate the transactions contemplated hereby, and no other proceedings or actions on the part of Parent are necessary to authorize the execution, delivery or performance of, or compliance with, this Agreement.
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(c) Due Execution and Delivery. This Agreement has been duly and validly executed and delivered by Parent and, assuming due authorization, execution and delivery hereof by Shareholder, constitutes a legal, valid and binding agreement of Parent, enforceable against Parent in accordance with its terms, subject to the Enforceability Exceptions.
(d) No Filings; No Conflict or Default. Except for (a) compliance with applicable Competition Laws and (b) compliance with applicable Foreign Investment Laws that are set forth on Section 4.03 of the Company Disclosure Schedule and (c) compliance with any applicable requirements of the 1933 Act, the 1934 Act and any other applicable securities laws, including the filing with the SEC of the Schedule 13E-3 (including the Proxy Statement), no filing with, and no permit, authorization, consent or approval of, any Governmental Authority is necessary for the execution and delivery of this Agreement by Parent or the consummation by Parent of the transactions contemplated hereby. None of the execution and delivery of this Agreement by Parent will (i) result in a violation or breach of, or constitute (with or without notice or lapse of time or both) a default (or give rise to any third party right of termination, cancellation, modification or acceleration) under, any of the terms, conditions or provisions of any Contract to which Parent is a party or by which Parent or any of Parent’s properties or assets may be bound, (ii) violate any judgment, order, writ, injunction, decree or award of any court, administrative agency or other Governmental Authority that is applicable to Parent or any of Parent’s properties or assets, (iii) constitute a violation by Parent of any law or regulation of any jurisdiction, or (iv) contravene or conflict with Parent’s governing or organizational documents, in each case, except, in the case of clauses (i) through (iii), for any conflict, breach, default or violation described above which would not materially impair the ability of Parent to perform its obligations under this Agreement.
(e) No Litigation. As of the date hereof, there is no action, investigation or proceeding pending or, to the knowledge of Parent, threatened against Parent at law or in equity before or by any Governmental Authority that restricts or prohibits (or, if successful, would restrict or prohibit) the validity of this Agreement or that would reasonably be expected to impair the ability of Parent to perform its obligations under this Agreement.
(f) Other Voting Agreements. Parent has delivered to Shareholder a complete and accurate copy of each other voting agreement (however characterized) being entered into with shareholders, directors or officers of the Company in connection with the Merger.
(g) No Other Representations. Parent acknowledges and agrees that other than the representations expressly set forth in this Agreement, Shareholder has not made, and is not making, any representations or warranties to Parent with respect to the Company, Shareholder’s ownership of Company Common Shares, the Merger Agreement or any other matter. Parent hereby specifically disclaims reliance upon any representations or warranties (other than the representations expressly set forth in this Agreement).
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7. Termination. This Agreement and all rights and obligations of the parties hereunder shall commence on the date hereof and shall terminate upon the earliest to occur of the following (such time, the “Expiration Date”): (a) the Effective Time and (b) the valid termination of the Merger Agreement pursuant to Article 10 thereof. If this Agreement is validly terminated pursuant to this Section 7, this Agreement shall become void and of no effect without liability of any party to any of the other parties hereto, whether in contract or in tort or any other theory of liability whatsoever; provided that the Surviving Provisions (as defined in the JBA), this Section 7 and Section 4(c) (together with Articles 1 and 9 to the extent relevant to said Sections 7 and 4(c)) shall survive such termination to the extent set forth therein.
8. No Limitation. Nothing in this Agreement shall be construed to prohibit Shareholder or any of Shareholder’s Representatives who is a member of the Board of Directors from taking any action (or failing to take any action) solely in his or her capacity as a member of the Board of Directors (or any committee thereof) or from taking any action with respect to any Acquisition Proposal as a member of the Board of Directors (or any committee thereof).
9. Miscellaneous.
(a) Entire Agreement. Without limiting the provisions of the JBA, the Rollover Agreement, the ECL or any other Transaction Document, this Agreement (together with Schedule I), constitutes the entire agreement and supersedes all prior and contemporaneous agreements and understandings, both written and oral, among or between any of the parties hereto with respect to the subject matter hereof. The parties agree and acknowledge that the existence and terms of the JBA shall have no effect on, and in no manner impair or alter, the Company’s rights under this Agreement.
(b) Reasonable Efforts. At the other party’s reasonable request and without further consideration, each party hereto shall use reasonable best efforts to take all such further lawful action as may be reasonably required or necessary to comply with its obligations hereunder.
(c) No Assignment. This Agreement shall be binding upon, and shall be enforceable by and inure to the benefit of, the parties hereto and their respective successors and permitted assigns. Except in connection with an Exempt Transfer, this Agreement shall not be assignable by any party, in whole or in part, by operation of law or otherwise, without the express prior written consent of the other parties hereto and the Special Committee (on behalf of the Company). Any attempted assignment in violation of the terms of this Section 9(c) shall be null and void ab initio.
(d) Binding Successors. Without limiting any other rights Parent may have hereunder in respect of any Transfer (including Exempt Transfer) of the Covered Shares, Shareholder agrees that this Agreement and the obligations hereunder shall attach to the Covered Shares beneficially owned by Shareholder and its Affiliates and shall automatically and without need for further documentation be binding upon any Person to which beneficial ownership of such Covered Shares shall pass, whether by operation of law or otherwise, including, without limitation, Shareholder’s heirs, guardians, administrators, Representatives, transferees (including pursuant to Exempt Transfers), successors or permitted assigns; provided that if such person is not a party to the Rollover Agreement, then such person will enter into a Rollover and Contribution Agreement with Parent, on the same terms as the Rollover Agreement, or a joinder thereto.
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(e) Amendments. This Agreement may be amended at any time prior to the Effective Time (whether before or after receipt of the Company Shareholder Approval) by an instrument in writing signed on behalf of each of the parties hereto and the Special Committee (on behalf of the Company). Notwithstanding the foregoing, except as otherwise expressly set forth in the JBA, (i) Parent and Merger Sub (as applicable) shall not terminate or amend this Agreement, the Rollover Agreement, the Merger Agreement or any other Definitive Transaction Document (as defined in the JBA) without the unanimous written approval of the Majority Investors, and (ii) no waiver of any condition precedent or any of Parent’s or Merger Sub’s rights under any of the foregoing agreements shall be effective without the unanimous written approval of the Majority Investors.
(f) Notices. All notices, requests, instruction, demands and other communications under this Agreement shall be in writing and shall be deemed given (i) when delivered personally by hand (with written confirmation of receipt), (ii) on the date sent by e-mail if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (iii) when received by the addressee if sent by nationally recognized overnight delivery service (with written confirmation of receipt), in each case, at the following addresses (or to such other address as a party may have specified by notice given to the other party pursuant to this provision):
if to Parent:
Poseidon Acquisition Corp
Attention: David L. Sokol
Email:
with copies (which shall not constitute notice) to:
Honigman LLP
2290 First National Building
600 Woodward Avenue
Detroit, MI 48226
Attention: Tracy Larsen; Jeff Kuras; Barbara Kaye
Email:
and
Latham & Watkins LLP
1271 Avenue of the Americas
New York, NY 10020
Attention: David Kurzweil
Email:
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and
Torys LLP
1114 Avenue of the Americas, 23rd Floor
New York, NY 10036
Attention: Michael Horwitz
Email:
and
K&L Gates LLP
925 Fourth Avenue, Suite 2900
Seattle, WA 98104
Attention: Stephan Coonrod; Christopher H. Cunningham; Chris Bellavia
Email:
if to Shareholder:
Washington Corporations
P.O. Box 16630
101 International Way
Missoula, MT 59808
Attention: Jerry Lemon
Email:
with a copy to (which shall not constitute notice) to:
K&L Gates LLP
925 Fourth Avenue, Suite 2900
Seattle, WA 98104
Attention: Stephan Coonrod; Christopher H. Cunningham; Chris Bellavia
Email:
(g) Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the parties hereto agree that the court making such determination shall have the power to limit the term or provision, to delete specific words or phrases or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term.
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(h) Remedies. All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise of any such right, power or remedy by any party hereto shall not preclude the simultaneous or later exercise of any other such right, power or remedy by such party.
(i) No Waiver. Except as otherwise provided in this Agreement, any failure of any of the parties to comply with any obligation, covenant, agreement or condition herein may be waived by the party or parties entitled to the benefits thereof (including, as applicable, the Special Committee (on behalf of the Special Committee (on behalf of the Company))) only by a written instrument signed by the party granting such waiver (including, as applicable, the Company). Any such waiver shall not be applicable or have any effect except in the specific instance in which it is given. No failure on the part of any party to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any party in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy. No single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy.
(j) Third Party Beneficiaries. This Agreement shall be binding solely upon the parties hereto and their successors and permitted assignees and inure solely to the benefit of Parent, and nothing set forth in this Agreement shall be construed to confer upon any Person other than Parent any benefits, rights or remedies under or by reason of this Agreement, or any rights to enforce or cause Parent to enforce any other provisions of this agreement; provided, however, that, subject to the terms and conditions set forth in this Agreement, in the JBA and in the Merger Agreement, each Majority Investor and the Special Committee (on behalf of the Company) is hereby made a third party beneficiary of the rights granted to Parent hereby for the purpose of obtaining specific performance of the Shareholder’s obligations hereunder (which right of specific performance may be sought directly against Shareholder or indirectly through Parent) and for no other purpose (including, without limitation, any claim for monetary damages hereunder).
(k) Governing Law; Forum; Waiver of Jury Trial.
(i) To the maximum extent permitted by applicable law, this Agreement and all claims or causes of action (whether in contract, tort or otherwise) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance of this Agreement shall be governed and construed in accordance with the laws of the State of Delaware, without regard to principles of conflicts of law, except (a) to the extent that the law of the Republic of the Marshall Islands is mandatorily applicable to the Merger and (b) all matters relating to the fiduciary duties of the Board of Directors are subject to the laws of the Republic of the Marshall Islands.
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(ii) Each party hereto agrees that this Agreement has been entered into by the parties hereto in express reliance upon 6 Del. C. § 2708. Each of the parties, to the maximum extent permitted by applicable law, (a) irrevocably submits to the personal jurisdiction of any state or federal court sitting in the state of Delaware, as well as to the jurisdiction of all courts to which an appeal may be taken from such courts, in any suit, action or proceeding arising out of or relating to this Agreement (except as provided in Section 9(k)(i) above), (b) agrees that all claims in respect of such suit, action or proceeding shall be brought, heard and determined exclusively in the Delaware Court of Chancery (provided that, in the event that subject matter jurisdiction is unavailable in that court, then all such claims shall be brought, heard and determined exclusively in any other state or federal court sitting in the state of Delaware), (c) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from such court, (d) agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court, and (e) expressly waives, and agrees not to plead or to make any claim that any such action or proceeding is subject (in whole or in part) to a jury trial, (f) agrees (1) to the extent such party is not otherwise subject to service of process in the State of Delaware, to appoint and maintain an agent in the State of Delaware as such party’s agent for acceptance of legal process, and (2) that, to the fullest extent permitted by applicable law, service of process may also be made on such party by prepaid certified mail with a proof of mailing receipt validated by the United States Postal Service constituting evidence of valid service, and that service made pursuant to (f)(1) or (2) above shall, to the fullest extent permitted by applicable law, have the same legal force and effect as if served upon such party personally within the State of Delaware and (g) waives, to the fullest extent permitted by applicable law, any objection 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 brought in any such court has been brought in an inconvenient forum. For purposes of implementing the parties’ agreement to appoint and maintain an agent for service of process in the State of Delaware, each such party that has not as of the date hereof already duly appointed such an agent in Delaware does hereby appoint Universal Registered Agents, Inc., as such agent. Each of the parties waives any defense of inconvenient forum to the maintenance of any action or proceeding brought in accordance with this paragraph. Each of the parties further consents and agrees that, to the maximum extent permitted by applicable law, process in any suit, action or proceeding may be served on such party in accordance with the notice provisions of Section 9(f) of this Agreement.
(iii) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATION OF THIS WAIVER, (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) EACH OTHER PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
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(l) Specific Performance. The parties hereto agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with its terms, and that monetary damages, even if available, would not be an adequate remedy therefor. Accordingly, the parties hereto agree that the parties (as well as the Majority Investors and the Company as set forth in Section 9(j)) shall be entitled to an injunction or injunctions, or any other appropriate form of equitable relief, to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof, without the necessity of proving the inadequacy of money damages as a remedy (and each party hereby waives any requirement for the securing or posting of any bond in connection with such remedy), in addition to any other remedy to which they are entitled at law or in equity. The parties further agree that neither the commencement of any action pursuant to this Section 9(l) nor anything contained in this Section 9(l) shall restrict or limit any party’s or the Company’s (as a third party beneficiary under this Agreement) right to pursue any other remedies under this Agreement that may be available then or thereafter.
(m) Interpretation. The descriptive headings used herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. The words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.” The parties hereto have participated jointly in the negotiation and drafting of this Agreement. No provision of this Agreement shall be interpreted for or against any party hereto because that party or its legal representatives drafted the provision. The word “or” shall be deemed to be inclusive. The words “hereof,” “hereto,” “hereby,” “herein,” “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not any particular section in which such words appear.
(n) Counterparts. This Agreement may be executed and delivered (including by facsimile or other form of electronic transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by facsimile or other electronic delivery shall be sufficient to bind the parties to the terms and conditions of this Agreement and may be signed electronically.
(o) Expenses. Except as otherwise provided in the JBA, each party hereto shall pay such party’s own expenses incurred in connection with this Agreement.
(p) No Ownership Interest. Nothing contained in this Agreement shall be deemed, upon execution, to vest in Parent any direct or indirect ownership or incidence of ownership of or with respect to any Covered Shares, and Parent shall have no authority to manage, direct, superintend, restrict, regulate, govern or administer any of the policies or operations of the Company or exercise any power or authority to direct Shareholder in the voting of any of the Covered Shares, except as otherwise provided herein.
[Signature page follows]
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IN WITNESS WHEREOF, Parent and Shareholder have caused this Agreement to be duly executed as of the date first above written.
| PARENT: | |||
| POSEIDON ACQUISITION CORP. | |||
| By: | /s/ David L. Sokol | ||
| Name: | David L. Sokol | ||
| Title: | Chairman | ||
[Signature Page to Voting and Support Agreement]
| SHAREHOLDER: | |||
| DEEP WATER HOLDINGS, LLC | |||
| By: | /s/ Jerry Lemon | ||
| Name: | Jerry Lemon | ||
| Title: | President | ||
| THE KYLE ROY WASHINGTON 2014 TRUST | |||
| By: | /s/ Christopher Hawks | ||
| Name: | Christopher Hawks | ||
| Title: | President, Copper Lion, Inc., Trustee | ||
| KYLE ROY WASHINGTON 2005 IRREVOCABLE TRUST, created under Agreement dated July 15, 2005, including all subsequent amendments, modifications and restatements | |||
| By: | /s/ Christopher Hawks | ||
| Name: | Christopher Hawks | ||
| Title: | President, Copper Lion, Inc., Trustee | ||
| THE KEVIN LEE WASHINGTON 2014 TRUST | |||
| By: | /s/ Christopher Hawks | ||
| Name: | Christopher Hawks | ||
| Title: | President, Copper Lion, Inc., Trustee | ||
[Signature Page to Voting and Support Agreement]
SCHEDULE I
Shareholder beneficially owns 63,583,731 Company Common Shares.
Exhibit 99.17
VOTING AND SUPPORT AGREEMENT
THIS VOTING AND SUPPORT AGREEMENT (this “Agreement”) is made and entered into as of October 31, 2022, by and between Poseidon Acquisition Corp., a Marshall Islands corporation (“Parent”), and David L. Sokol (“Shareholder”).
WHEREAS, contemporaneously with the execution of this Agreement, Parent, Poseidon Merger Sub, Inc., a Marshall Islands corporation and a direct wholly owned Subsidiary of Parent (“Merger Sub”), and Atlas Corp., a Marshall Islands corporation (the “ Company”), are entering into an Agreement and Plan of Merger, dated as of the date hereof (as amended, the “Merger Agreement”), providing, among other things, for a business combination transaction pursuant to which (i) Merger Sub will be merged with and into the Company, (ii) the separate corporate existence of Merger Sub will thereupon cease and (iii) the Company will continue as the surviving corporation and a wholly-owned Subsidiary of Parent (the “Merger”) in accordance with the Merger Agreement and the Business Corporations Act of the Republic of the Marshall Islands (the “MIBCA”); and
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement and in the Merger Agreement, and intending to be legally bound hereby, the parties hereto agree as follows:
1. Certain Definitions. For the purposes of this Agreement, capitalized terms used but not otherwise defined in this Agreement shall have the meanings ascribed to them in the Merger Agreement, and other capitalized terms used herein shall have the respective meanings ascribed to them in this Section 1.
“Additional Owned Shares” shall mean all Company Common Shares and any other equity securities of the Company beneficially owned, or which become beneficially owned by Shareholder, any of the entities listed on Schedule I, or any of its or their respective controlled Affiliates, after the date hereof and prior to the Expiration Date.
“Affiliate” shall have the meaning set forth in the Merger Agreement; provided, however, that Parent, Merger Sub, the Company and its Subsidiaries shall not be deemed to be Affiliates of Shareholder or of any of its Affiliates.
“Agreement” has the meaning set forth in the Preamble to this Agreement.
“beneficial ownership” (and related terms such as “beneficially owned” or “beneficial owner”) shall have the meaning set forth in Rule 13d-3 under the 1934 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).
“Company” has the meaning set forth in the Recitals to this Agreement.
“Company Shareholders Meeting” shall have the meaning set forth in Section 2 hereof.
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“Covered Shares” shall mean the Owned Shares and Additional Owned Shares.
“ECL” shall mean that certain Equity Commitment Letter, dated as of the date hereof, by and between Shareholder and Parent.
“Exempt Transfer” means any Transfer of Covered Shares to any member of Shareholder’s immediate family or his lineal descendants (the “Permitted Family Members”), (i) trusts or other entities for the benefit of Shareholder or his Permitted Family Members, and (ii) upon Shareholder’s death, Shareholder’s executors, administrators, testamentary trustees, legatees and beneficiaries; provided that, in the case of clause (i), Shareholder shall retain the sole and exclusive right to vote and dispose of any such Covered Shares transferred to the Permitted Family Member or trust.
“Expiration Date” shall have the meaning set forth in Section 7 hereof.
“JBA” shall mean that certain Joint Bidding Agreement, effective as of August 4, 2022, by and among Shareholder, The Hamblin Watsa Investment Counsel Ltd., The Second 810 Holdco Ltd., The Sixty Three Foundation, Deep Water Holdings, LLC, The Kyle Roy Washington 2014 Trust, Kyle Roy Washington 2005 Irrevocable Trust u/a/d July 15, 2005, The Kevin Lee Washington 2014 Trust, and Ocean Network Express Pte. Ltd., as amended by the JBA Side Letter (as defined below).
“JBA Side Letter” shall mean that certain Letter Agreement, dated as of the date hereof, by and among Shareholder, The Hamblin Watsa Investment Counsel Ltd., The Second 810 Holdco Ltd., The Sixty Three Foundation, Deep Water Holdings, LLC, The Kyle Roy Washington 2014 Trust, Kyle Roy Washington 2005 Irrevocable Trust u/a/d July 15, 2005, The Kevin Lee Washington 2014 Trust, and Ocean Network Express Pte. Ltd.
“knowledge of Shareholder” shall mean the actual knowledge, after reasonable inquiry, of the Shareholder.
“Majority Investors” has the meaning set forth in the JBA.
“Merger” has the meaning set forth in the Recitals to this Agreement.
“Merger Agreement” has the meaning set forth in the Recitals to this Agreement.
“Merger Sub” has the meaning set forth in the Recitals to this Agreement.
“MIBCA” has the meaning set forth in the Recitals to this Agreement.
“Owned Shares” shall mean all Company Common Shares and any other equity securities of the Company which are beneficially owned by Shareholder, the entities listed on Schedule I, or any of their respective controlled Affiliates, as of the date hereof, as set forth on Schedule I.
“Parent” has the meaning set forth in the Preamble to this Agreement.
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“Representatives” shall mean, with respect to a Person, all of the officers, directors, employees, consultants, legal representatives, agents, advisors, auditors, investment bankers, and other representatives of such Person and, solely with respect to Shareholder that is not an individual, any of its controlled Affiliates.
“Rollover Agreement” shall mean that certain Rollover and Contribution Agreement, dated as of the date hereof, by and between Parent and Shareholder.
“Shareholder” has the meaning set forth in the Preamble to this Agreement.
“Transfer” shall mean, with respect to a security, the transfer, pledge, hypothecation, encumbrance, assignment, sale, exchange or other disposition (whether by sale, merger, consolidation, liquidation, dissolution, dividend, distribution or otherwise) of such security or the beneficial ownership thereof, the offer to make such a transfer or other disposition, and each option, agreement, arrangement or understanding, whether or not in writing, to effect any of the foregoing. As a verb, “Transfer” shall have a correlative meaning.
2. Agreement to Vote. Prior to the Expiration Date, at any meeting of the shareholders of the Company, however called, or at any adjournment or postponement thereof, or in any other circumstance in which the vote, consent or other approval of the shareholders of the Company is sought (each, a “Company Shareholders Meeting”), Shareholder irrevocably and unconditionally (except as expressly provided herein) agrees that it shall, and shall cause any other holder of record of the Covered Shares to, (a) appear at each such meeting or otherwise cause all Covered Shares to be counted as present thereat for purposes of calculating a quorum and vote (or cause to be voted) all Covered Shares, and (b) if action is to be taken by written consent in lieu of a Company Shareholders Meeting, execute and deliver a written consent (or cause a written consent to be executed and delivered) covering all Covered Shares (in each case to the extent that the Covered Shares are entitled to vote thereon or consent thereto):
(i) in favor of the adoption, approval and authorization of the Merger Agreement as in effect on the date hereof (or any amended and restated Merger Agreement or amendment to the Merger Agreement that, in any such case, (x) increases the Merger Consideration payable for each Company Common Share or (y) other than amendments covered by clause (x), amendments that otherwise result in the Merger Agreement being more favorable to the Company shareholders (solely in their capacity as such) than the Merger Agreement), and the approval of the Merger and the other transactions contemplated by the Merger Agreement;
(ii) in favor of any adjournment or postponement recommended by the Company with respect to any Company Shareholders Meeting to the extent permitted or required pursuant to Section 6.02 of the Merger Agreement, the MIBCA or the articles of incorporation and bylaws of the Company;
(iii) against any Acquisition Proposal;
(iv) against any merger agreement or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company, in each case except as consented to by Parent or as expressly permitted by the Merger Agreement; and
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(v) against any proposal, action or agreement submitted to the shareholders of the Company that is intended to (A) materially impede, frustrate, interfere with, delay, postpone, prevent or otherwise impair the Merger or the other transactions contemplated by the Merger Agreement or (B) result in any of the conditions set forth in Article 9 of the Merger Agreement not being fulfilled. Shareholder shall not commit or agree to take any action inconsistent with the foregoing.
3. No Disposition or Solicitation.
(a) No Disposition. Shareholder hereby covenants and agrees that, except as contemplated by this Agreement and the Merger Agreement, prior to the Expiration Date, Shareholder shall not, directly or indirectly, (i) offer to Transfer, Transfer or consent to any Transfer of any or all of the Covered Shares or the beneficial ownership thereof without the prior written consent of Parent and the Company, (ii) enter into any contract, option or other agreement or understanding with respect to any Transfer of any or all Covered Shares or any beneficial ownership thereof, (iii) tender any Covered Shares into any tender or exchange offer, (iv) deposit any or all of the Covered Shares into a voting trust or enter into a voting agreement or arrangement with respect to any or all of the Covered Shares other than investment management agreements with, and powers-of-attorney held by, Shareholder, (v) grant any proxy, power-of-attorney or other authorization or consent in or with respect to any or all of the Covered Shares that is inconsistent with Section 2 hereof, or (vi) commit or agree to take any of the foregoing actions. Notwithstanding the foregoing but subject to Section 9(d) hereof, Shareholder may Transfer Covered Shares pursuant to an Exempt Transfer; provided that prior to and as a condition to such Exempt Transfer, the transferee of the Covered Shares has agreed to be bound by the terms of this Agreement to the same extent as such Shareholder with respect to the Covered Shares so transferred and the definition of Shareholder shall automatically be amended to include the transferee of the Covered Shares,. If any involuntary Transfer of any of the Covered Shares shall occur (including, but not limited to, a sale by Shareholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), Shareholder shall procure that the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee and of any subsequent transferee) take and hold such Covered Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect. Any attempted Transfer (including an Exempt Transfer) of Covered Shares or any interest therein in violation of this Section 3(a) shall be null and void ab initio.
(b) Non-Solicitation. In addition to its obligations under Section 4 of the JBA, Shareholder has read Section 6.04 of the Merger Agreement and agrees that such Shareholder and its employees and Affiliates will not, directly or indirectly, take any action that would violate Section 6.04 of the Merger Agreement if Shareholder and its employees and Affiliates were deemed Representatives of the Company for purposes of Section 6.04 of the Merger Agreement; provided that, the foregoing shall not serve to limit or restrict any actions taken by Shareholder or its employees and Affiliates in any such Person’s capacity as a director of the Company, to the extent such actions are permitted or required under Section 6.04 of the Merger Agreement. Notwithstanding anything to the contrary herein, this Agreement shall not restrict the ability of Shareholder and its Affiliates and their respective Representatives to review and privately discuss with the Company any Acquisition Proposal or Superior Proposal, including to privately discuss and confirm to the Company the willingness of Shareholder to support and sign a voting and support agreement in connection therewith in the event of, but subject to, any valid termination of the Merger Agreement.
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4. Additional Agreements.
(a) Certain Events. In the event of any stock split, stock dividend, merger, reorganization, recapitalization or other change in the capital structure of the Company affecting the Covered Shares or the acquisition of Additional Owned Shares or other securities or rights of the Company by Shareholder, (i) the type and number of Covered Shares shall be adjusted appropriately, and (ii) this Agreement and the obligations hereunder shall automatically attach to any additional Covered Shares or other securities or rights of the Company issued to or acquired by Shareholder.
(b) Waiver of Appraisal and Dissenters’ Rights. Shareholder, on behalf of itself and any other beneficial owner of Owned Shares and any other securities (including any preferred stock of the Company beneficially owned by Shareholder and/or its Affiliates), hereby waives and agrees not to exercise any rights of appraisal or rights to dissent from the Company’s entry into the Merger Agreement or the consummation of the Merger and the other transactions contemplated by the Merger Agreement.
(c) Certain Actions. Shareholder, on behalf of itself and any other beneficial owner of Covered Shares, hereby agrees not to commence or participate in, assist or knowingly encourage, and to take all actions necessary to opt out of, any class in any class action with respect to, any action or claim, derivative or otherwise, in each case in its capacity as a securityholder of the Company, against Parent, Merger Sub, the Company or any of their respective Subsidiaries or Affiliates and each of their successors and assigns relating to the negotiation, execution or delivery of this Agreement or the Merger Agreement or the consummation of the Merger, 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 of the Merger) or (B) alleging a breach of any fiduciary duty of the Board of Directors in connection with the Merger Agreement or the Merger; provided that, except as set forth in Section 4(b), nothing in this Section 4(c) shall restrict or prohibit Shareholder, on behalf of itself and any other beneficial owner of Covered Shares, from (i) commencing or maintaining any action or claim (including a derivative claim on behalf of Parent or Merger Sub) asserting any rights under or seeking to enforce the terms and conditions of this Agreement, the Rollover Agreement, the Merger Agreement, the JBA or any other Transaction Document or (ii) asserting any counterclaims or defenses in any proceeding brought or claims asserted against it by Parent, Merger Sub, the Company (or its stockholders, whether the claim is brought derivatively or directly) or any of their respective Subsidiaries or Affiliates and each of their successors and assigns relating to this Agreement, the Rollover Agreement, the Merger Agreement, the JBA or any other Transaction Document.
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(d) Additional Owned Shares. Shareholder hereby agrees to notify Parent promptly (and in any event within 1 Business Day of filing an amendment to its Schedule 13D) in writing of the number and description of any Additional Owned Shares.
(e) Regulatory Covenant. Shareholder shall, and shall use its commercially reasonable efforts to cause its Affiliates to, consistent with the undertakings and limitations (including with respect to competitively sensitive information and attorney-client privilege) set forth in Section 8.01(c) of the Merger Agreement, supply and provide all necessary information to any Governmental Authority requesting such information in connection with filings or notifications under applicable laws that are required as a result of, or pursuant to, the Merger Agreement, including, without limitation, information required or requested to be provided in connection with any Competition Law and/or Foreign Investment Law in connection with any approvals required (or which the Company and Parent otherwise determine to seek) in connection with the consummation of the Merger.
(f) Proxy Statement and Schedule 13E-3. Shareholder will use its commercially reasonable efforts to furnish all information concerning Shareholder and its Affiliates to Parent and the Company that is reasonably necessary for the preparation and filing of the Proxy Statement and the Schedule 13E-3, and provide such other assistance, as may be reasonably requested by Parent or the Company to be included therein, including the resolution of any comments received from the SEC. To the knowledge of Shareholder, the information supplied by Shareholder for inclusion or incorporation by reference in the Proxy Statement, the Schedule 13E-3 or any filing made with a Governmental Authority pursuant to the terms of the Merger Agreement will not, at the time that such information is provided, 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.
5. Representations and Warranties of Shareholder. Shareholder hereby represents and warrants to Parent and the Company as follows:
(a) Ownership of Shares; Investment Power and Control or Direction. As of the date hereof, Shareholder (i) owns and holds good and valid title to all of the Owned Shares, free and clear of any liens or other restrictions on title that would prevent Shareholder from entering into this Agreement, (ii) has sole voting power, power of disposition, and power to issue instructions with respect to the Owned Shares and power to agree to all of the matters applicable to them set forth in this Agreement, in each case, over all of the Owned Shares, and (iii) Shareholder owns no other securities (including debt securities) of the Company or any of its Subsidiaries or securities that are convertible, exercisable or exchangeable for such securities other than the Owned Shares.
(b) Organization and Qualification. Shareholder is a legal entity duly organized, validly existing and, to the extent such concept is applicable, in good standing under the laws of the jurisdiction of its organization.
(c) Authority. Shareholder has all necessary entity power and authority and legal capacity to execute, deliver and perform all of Shareholder’s obligations under this Agreement, and to consummate the transactions contemplated hereby, and no other proceedings or actions on the part of Shareholder are necessary to authorize the execution, delivery or performance of, or compliance with, this Agreement.
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(d) Due Execution and Delivery. This Agreement has been duly and validly executed and delivered by Shareholder and, assuming due authorization, execution and delivery hereof by Parent, constitutes a legal, valid and binding agreement of Shareholder, enforceable against Shareholder in accordance with its terms, subject to the Enforceability Exceptions.
(e) No Filings; No Conflict or Default. Except for (a) compliance with Competition Laws , (b) compliance with Foreign Investment Laws that are set forth on Section 4.03 of the Company Disclosure Schedule and (c) compliance with any applicable requirements of the 1933 Act, the 1934 Act and any other applicable securities laws, including the filing with the SEC of the Schedule 13E-3 (including the Proxy Statement), no filing with, and no permit, authorization, consent or approval of, any Governmental Authority is necessary for the execution and delivery of this Agreement by Shareholder or the consummation by Shareholder of the transactions contemplated hereby. None of the execution and delivery of this Agreement by Shareholder will (i) result in a violation or breach of, or constitute (with or without notice or lapse of time or both) a default (or give rise to any third party right of termination, cancellation, modification or acceleration) under, any of the terms, conditions or provisions of any Contract to which Shareholder is a party or by which Shareholder or any Shareholder’s properties or assets may be bound, (ii) violate any Order of any Governmental Authority that is applicable to Shareholder or Shareholder’s properties or assets, (iii) constitute a violation by Shareholder of any law or regulation of any jurisdiction applicable to Shareholder or (iv) contravene or conflict with Shareholder’s governing or organizational documents, in each case, except, in the case of clauses (i) through (iv), for any conflict, breach, default or violation described above which would not reasonably be expect to materially impair the ability of Shareholder to perform its obligations under this Agreement.
(f) No Litigation. As of the date hereof, there is no Legal Action pending or, to the knowledge of Shareholder, threatened against Shareholder at law or in equity before or by any Governmental Authority that restricts or prohibits (or, if successful, would restrict or prohibit) the beneficial or record ownership of Shareholder’s Covered Shares or that would reasonably be expected to impair the ability of Shareholder to perform its obligations under this Agreement.
(g) No Fees. No broker, finder or investment banker is entitled to any brokerage, finder’s or other similar fee or commission in connection with this Agreement or the Merger based upon arrangements made by or on behalf of Shareholder.
6. Representations and Warranties of Parent. Parent hereby represents and warrants to Shareholder as follows:
(a) Organization and Qualification. Parent is a legal entity duly organized, validly existing and, to the extent such concept is applicable, in good standing under the laws of the jurisdiction of its organization.
(b) Authority. Parent has all necessary corporate power and authority and legal capacity to execute, deliver and perform all of Parent’s obligations under this Agreement, and to consummate the transactions contemplated hereby, and no other proceedings or actions on the part of Parent are necessary to authorize the execution, delivery or performance of, or compliance with, this Agreement.
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(c) Due Execution and Delivery. This Agreement has been duly and validly executed and delivered by Parent and, assuming due authorization, execution and delivery hereof by Shareholder, constitutes a legal, valid and binding agreement of Parent, enforceable against Parent in accordance with its terms, subject to the Enforceability Exceptions.
(d) No Filings; No Conflict or Default. Except for (a) compliance with applicable Competition Laws and (b) compliance with applicable Foreign Investment Laws that are set forth on Section 4.03 of the Company Disclosure Schedule and (c) compliance with any applicable requirements of the 1933 Act, the 1934 Act and any other applicable securities laws, including the filing with the SEC of the Schedule 13E-3 (including the Proxy Statement), no filing with, and no permit, authorization, consent or approval of, any Governmental Authority is necessary for the execution and delivery of this Agreement by Parent or the consummation by Parent of the transactions contemplated hereby. None of the execution and delivery of this Agreement by Parent will (i) result in a violation or breach of, or constitute (with or without notice or lapse of time or both) a default (or give rise to any third party right of termination, cancellation, modification or acceleration) under, any of the terms, conditions or provisions of any Contract to which Parent is a party or by which Parent or any of Parent’s properties or assets may be bound, (ii) violate any judgment, order, writ, injunction, decree or award of any court, administrative agency or other Governmental Authority that is applicable to Parent or any of Parent’s properties or assets, (iii) constitute a violation by Parent of any law or regulation of any jurisdiction, or (iv) contravene or conflict with Parent’s governing or organizational documents, in each case, except, in the case of clauses (i) through (iii), for any conflict, breach, default or violation described above which would not materially impair the ability of Parent to perform its obligations under this Agreement.
(e) No Litigation. As of the date hereof, there is no action, investigation or proceeding pending or, to the knowledge of Parent, threatened against Parent at law or in equity before or by any Governmental Authority that restricts or prohibits (or, if successful, would restrict or prohibit) the validity of this Agreement or that would reasonably be expected to impair the ability of Parent to perform its obligations under this Agreement.
(f) Other Voting Agreements. Parent has delivered to Shareholder a complete and accurate copy of each other voting agreement (however characterized) being entered into with shareholders, directors or officers of the Company in connection with the Merger.
(g) No Other Representations. Parent acknowledges and agrees that other than the representations expressly set forth in this Agreement, Shareholder has not made, and is not making, any representations or warranties to Parent with respect to the Company, Shareholder’s ownership of Company Common Shares, the Merger Agreement or any other matter. Parent hereby specifically disclaims reliance upon any representations or warranties (other than the representations expressly set forth in this Agreement).
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7. Termination. This Agreement and all rights and obligations of the parties hereunder shall commence on the date hereof and shall terminate upon the earliest to occur of the following (such time, the “Expiration Date”): (a) the Effective Time and (b) the valid termination of the Merger Agreement pursuant to Article 10 thereof. If this Agreement is validly terminated pursuant to this Section 7, this Agreement shall become void and of no effect without liability of any party to any of the other parties hereto, whether in contract or in tort or any other theory of liability whatsoever; provided that the Surviving Provisions (as defined in the JBA), this Section 7 and Section 4(c) (together with Articles 1 and 9 to the extent relevant to said Sections 7 and 4(c)) shall survive such termination to the extent set forth therein.
8. No Limitation. Nothing in this Agreement shall be construed to prohibit Shareholder or any of Shareholder’s Representatives who is a member of the Board of Directors from taking any action (or failing to take any action) solely in his or her capacity as a member of the Board of Directors (or any committee thereof) or from taking any action with respect to any Acquisition Proposal as a member of the Board of Directors (or any committee thereof).
9. Miscellaneous.
(a) Entire Agreement. Without limiting the provisions of the JBA, the Rollover Agreement, the ECL or any other Transaction Document, this Agreement (together with Schedule I), constitutes the entire agreement and supersedes all prior and contemporaneous agreements and understandings, both written and oral, among or between any of the parties hereto with respect to the subject matter hereof. The parties agree and acknowledge that the existence and terms of the JBA shall have no effect on, and in no manner impair or alter, the Company’s rights under this Agreement.
(b) Reasonable Efforts. At the other party’s reasonable request and without further consideration, each party hereto shall use reasonable best efforts to take all such further lawful action as may be reasonably required or necessary to comply with its obligations hereunder.
(c) No Assignment. This Agreement shall be binding upon, and shall be enforceable by and inure to the benefit of, the parties hereto and their respective successors and permitted assigns. Except in connection with an Exempt Transfer, this Agreement shall not be assignable by any party, in whole or in part, by operation of law or otherwise, without the express prior written consent of the other parties hereto and the Special Committee (on behalf of the Company). Any attempted assignment in violation of the terms of this Section 9(c) shall be null and void ab initio.
(d) Binding Successors. Without limiting any other rights Parent may have hereunder in respect of any Transfer (including Exempt Transfer) of the Covered Shares, Shareholder agrees that this Agreement and the obligations hereunder shall attach to the Covered Shares beneficially owned by Shareholder and its Affiliates and shall automatically and without need for further documentation be binding upon any Person to which beneficial ownership of such Covered Shares shall pass, whether by operation of law or otherwise, including, without limitation, Shareholder’s heirs, guardians, administrators, Representatives, transferees (including pursuant to Exempt Transfers), successors or permitted assigns; provided that if such person is not a party to the Rollover Agreement, then such person will enter into a Rollover and Contribution Agreement with Parent, on the same terms as the Rollover Agreement, or a joinder thereto.
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(e) Amendments. This Agreement may be amended at any time prior to the Effective Time (whether before or after receipt of the Company Shareholder Approval) by an instrument in writing signed on behalf of each of the parties hereto and the Special Committee (on behalf of the Company). Notwithstanding the foregoing, except as otherwise expressly set forth in the JBA, (i) Parent and Merger Sub (as applicable) shall not terminate or amend this Agreement, the Rollover Agreement, the Merger Agreement or any other Definitive Transaction Document (as defined in the JBA) without the unanimous written approval of the Majority Investors, and (ii) no waiver of any condition precedent or any of Parent’s or Merger Sub’s rights under any of the foregoing agreements shall be effective without the unanimous written approval of the Majority Investors.
(f) Notices. All notices, requests, instruction, demands and other communications under this Agreement shall be in writing and shall be deemed given (i) when delivered personally by hand (with written confirmation of receipt), (ii) on the date sent by e-mail if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (iii) when received by the addressee if sent by nationally recognized overnight delivery service (with written confirmation of receipt), in each case, at the following addresses (or to such other address as a party may have specified by notice given to the other party pursuant to this provision):
if to Parent:
Poseidon Acquisition Corp.
Trust Company Complex
Ajeltake Road, Ajeltake Island
Majuro, Marshal Islands MH96960
Attention: David L. Sokol
Email:
with copies (which shall not constitute notice) to:
Honigman LLP
2290 First National Building
600 Woodward Avenue
Detroit, MI 48226
Attention: Tracy Larsen; Jeff Kuras; Barbara Kaye
Email:
and
Latham & Watkins LLP
1271 Avenue of the Americas
New York, NY 10020
Attention: David Kurzweil
Email:
and
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Torys LLP
1114 Avenue of the Americas, 23rd Floor
New York, NY 10036
Attention: Michael Horwitz
Email:
and
K&L Gates LLP
925 Fourth Avenue, Suite 2900
Seattle, WA 98104
Attention: Stephan Coonrod; Christopher H. Cunningham; Chris Bellavia
Email:
if to Shareholder:
David L Sokol
Attention: David L. Sokol
Email:
with a copy to (which shall not constitute notice) to:
Honigman LLP
2290 First National Building
600 Woodward Avenue
Detroit, MI 48226
Attention: Tracy Larsen; Jeff Kuras; Barbara Kaye
Email:
(g) Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the parties hereto agree that the court making such determination shall have the power to limit the term or provision, to delete specific words or phrases or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term.
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(h) Remedies. All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise of any such right, power or remedy by any party hereto shall not preclude the simultaneous or later exercise of any other such right, power or remedy by such party.
(i) No Waiver. Except as otherwise provided in this Agreement, any failure of any of the parties to comply with any obligation, covenant, agreement or condition herein may be waived by the party or parties entitled to the benefits thereof (including, as applicable, the Special Committee (on behalf of the Special Committee (on behalf of the Company))) only by a written instrument signed by the party granting such waiver (including, as applicable, the Company). Any such waiver shall not be applicable or have any effect except in the specific instance in which it is given. No failure on the part of any party to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any party in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy. No single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy.
(j) Third Party Beneficiaries. This Agreement shall be binding solely upon the parties hereto and their successors and permitted assignees and inure solely to the benefit of Parent, and nothing set forth in this Agreement shall be construed to confer upon any Person other than Parent any benefits, rights or remedies under or by reason of this Agreement, or any rights to enforce or cause Parent to enforce any other provisions of this agreement; provided, however, that, subject to the terms and conditions set forth in this Agreement, in the JBA and in the Merger Agreement, each Majority Investor and the Special Committee (on behalf of the Company) is hereby made a third party beneficiary of the rights granted to Parent hereby for the purpose of obtaining specific performance of the Shareholder’s obligations hereunder (which right of specific performance may be sought directly against Shareholder or indirectly through Parent) and for no other purpose (including, without limitation, any claim for monetary damages hereunder).
(k) Governing Law; Forum; Waiver of Jury Trial.
(i) To the maximum extent permitted by applicable law, this Agreement and all claims or causes of action (whether in contract, tort or otherwise) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance of this Agreement shall be governed and construed in accordance with the laws of the State of Delaware, without regard to principles of conflicts of law, except (a) to the extent that the law of the Republic of the Marshall Islands is mandatorily applicable to the Merger and (b) all matters relating to the fiduciary duties of the Board of Directors are subject to the laws of the Republic of the Marshall Islands.
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(ii) Each party hereto agrees that this Agreement has been entered into by the parties hereto in express reliance upon 6 Del. C. § 2708. Each of the parties, to the maximum extent permitted by applicable law, (a) irrevocably submits to the personal jurisdiction of any state or federal court sitting in the state of Delaware, as well as to the jurisdiction of all courts to which an appeal may be taken from such courts, in any suit, action or proceeding arising out of or relating to this Agreement (except as provided in Section 9(k)(i) above), (b) agrees that all claims in respect of such suit, action or proceeding shall be brought, heard and determined exclusively in the Delaware Court of Chancery (provided that, in the event that subject matter jurisdiction is unavailable in that court, then all such claims shall be brought, heard and determined exclusively in any other state or federal court sitting in the state of Delaware), (c) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from such court, (d) agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court, and (e) expressly waives, and agrees not to plead or to make any claim that any such action or proceeding is subject (in whole or in part) to a jury trial, (f) agrees (1) to the extent such party is not otherwise subject to service of process in the State of Delaware, to appoint and maintain an agent in the State of Delaware as such party’s agent for acceptance of legal process, and (2) that, to the fullest extent permitted by applicable law, service of process may also be made on such party by prepaid certified mail with a proof of mailing receipt validated by the United States Postal Service constituting evidence of valid service, and that service made pursuant to (f)(1) or (2) above shall, to the fullest extent permitted by applicable law, have the same legal force and effect as if served upon such party personally within the State of Delaware and (g) waives, to the fullest extent permitted by applicable law, any objection 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 brought in any such court has been brought in an inconvenient forum. Each of the parties waives any defense of inconvenient forum to the maintenance of any action or proceeding brought in accordance with this paragraph. Each of the parties further consents and agrees that, to the maximum extent permitted by applicable law, process in any suit, action or proceeding may be served on such party in accordance with the notice provisions of Section 9(f) of this Agreement.
(iii) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATION OF THIS WAIVER, (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) EACH OTHER PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
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(l) Specific Performance. The parties hereto agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with its terms, and that monetary damages, even if available, would not be an adequate remedy therefor. Accordingly, the parties hereto agree that the parties (as well as the Majority Investors and the Company as set forth in Section 9(j)) shall be entitled to an injunction or injunctions, or any other appropriate form of equitable relief, to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof, without the necessity of proving the inadequacy of money damages as a remedy (and each party hereby waives any requirement for the securing or posting of any bond in connection with such remedy), in addition to any other remedy to which they are entitled at law or in equity. The parties further agree that neither the commencement of any action pursuant to this Section 9(l) nor anything contained in this Section 9(l) shall restrict or limit any party’s or the Company’s (as a third party beneficiary under this Agreement) right to pursue any other remedies under this Agreement that may be available then or thereafter.
(m) Interpretation. The descriptive headings used herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. The words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.” The parties hereto have participated jointly in the negotiation and drafting of this Agreement. No provision of this Agreement shall be interpreted for or against any party hereto because that party or its legal representatives drafted the provision. The word “or” shall be deemed to be inclusive. The words “hereof,” “hereto,” “hereby,” “herein,” “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not any particular section in which such words appear.
(n) Counterparts. This Agreement may be executed and delivered (including by facsimile or other form of electronic transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by facsimile or other electronic delivery shall be sufficient to bind the parties to the terms and conditions of this Agreement and may be signed electronically.
(o) Expenses. Except as otherwise provided in the JBA, each party hereto shall pay such party’s own expenses incurred in connection with this Agreement.
(p) No Ownership Interest. Nothing contained in this Agreement shall be deemed, upon execution, to vest in Parent any direct or indirect ownership or incidence of ownership of or with respect to any Covered Shares, and Parent shall have no authority to manage, direct, superintend, restrict, regulate, govern or administer any of the policies or operations of the Company or exercise any power or authority to direct Shareholder in the voting of any of the Covered Shares, except as otherwise provided herein.
[Signature page follows]
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IN WITNESS WHEREOF, Parent and Shareholder have caused this Agreement to be duly executed as of the date first above written.
| PARENT: | ||
| POSEIDON ACQUISITION CORP. | ||
| By: | /s/ David L. Sokol | |
| Name: | David L. Sokol | |
| Title: | Chairman | |
| SHAREHOLDER: | ||
| David L. Sokol | ||
| /s/ David L. Sokol | ||
[Signature Page to Voting and Support Agreement]
SCHEDULE I
Shareholder beneficially owns 7,000,000 Company Common Shares.
Exhibit 99.18
October 31, 2022
Hamblin Watsa Investment Counsel Ltd.
95 Wellington Street West, Suite 802
Toronto, Ontario, Canada M5J 2N7
Washington Companies
P.O. Box 16630
101 International Way
Missoula, MT 59808
Ocean Network Express Pte. Ltd.
7 Straits View
#16-01 Marina One East Tower
Singapore 018936
David L. Sokol
| Re: | Letter Agreement re: Joint Bidding Agreement, dated August 4, 2022 |
Ladies and Gentlemen:
Reference is made to (1) that certain Joint Bidding Agreement, dated August 4, 2022 (as amended, the “JBA”) by and among (i) each of the entities set forth in Schedule 2 attached to the JBA (collectively, “FF”), (ii) Deep Water Holdings, LLC, The Kyle Roy Washington 2014 Trust, Kyle Roy Washington 2005 Irrevocable Trust u/a/d July 15, 2005, and The Kevin Lee Washington 2014 Trust (collectively, “Washington Family Holdings”), (iii) Ocean Network Express Pte. Ltd. (“ONE”), and (iv) David L. Sokol (“DS” and, collectively with FF, Washington Family Holdings and ONE, the “Investors”); and (2) that certain Agreement and Plan of Merger, dated as of the date hereof (the “Merger Agreement”), by and among Poseidon Acquisition Corp., a Marshall Islands corporation (“Parent”), Poseidon Merger Sub, Inc., a Marshall Islands corporation and a direct wholly owned subsidiary of Parent (“Merger Sub”), and Atlas Corp., a Marshall Islands corporation (the “Company”). Capitalized terms used but not defined herein have the meanings ascribed to them in the Merger Agreement.
Each Investor is entering into this letter agreement (this “Agreement”) to amend and supplement certain provisions of the JBA on the date first set forth above and hereby agrees as follows:
| 1. | Each Investor (i) hereby consents to and authorizes the publication and disclosure by Parent and the Company, in any press release or the Proxy Statement (including all documents and schedules filed with the SEC) or other disclosure document required under Applicable Law in connection with the Merger Agreement or the transactions contemplated thereby, of its identity and ownership of Company Common Shares, the nature of its commitments, arrangements and understandings pursuant to the Voting and Support Agreements and such other information reasonably required under Applicable Law in connection with such publication or disclosure (“Shareholder Information”), (ii) subject to the terms of the JBA, hereby agrees to use its commercially reasonable efforts to furnish all information concerning such Investor and its Affiliates to Parent and the Company that is reasonably necessary for the preparation and filing of the Proxy Statement and the Schedule 13E-3, and provide such other assistance, as may be reasonably requested by Parent or the Company to be included therein, including the resolution of any comments received from the SEC, and (iii) hereby agrees as promptly as practicable to notify Parent of any required corrections with respect to any written information supplied by such Investor specifically for use in any such filings. Parent shall provide each Investor with reasonable advance notice of and opportunity to review and comment on such draft documentation (or excerpts thereof to the extent related to such Investor and its Affiliates) and consider and take into account all reasonable comments of each Investor regarding disclosure related to such Investor and its Affiliates. The information supplied by each Investor for inclusion or incorporation by reference in the Proxy Statement, the Schedule 13E-3 or any filing made with a Governmental Authority pursuant to the terms of the Merger Agreement will not, to the knowledge of such Investor, at the time that such information is provided, 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. Parent hereby consents to and authorizes the publication and disclosure by each Investor and its Affiliates of the Voting and Support Agreements, this Agreement and any Shareholder Information in any document, schedule or other disclosure required by Applicable Law (including any Schedule 13D or other filing with the SEC). |
| 2. | At the Closing, each Investor shall enter into the shareholders agreement substantially in the form attached as Exhibit A hereto, with such modifications as may be mutually agreed to among all the Investors. |
| 3. | Each of ONE, DS and Deep Water Holdings, LLC (“DWH”) on behalf of Washington Family Holdings has, as of the date hereof, executed an equity financing commitment letter in favor of Parent in which each has agreed, subject to the terms and conditions set forth therein, to fund an equity contribution to Parent as a subscription for Bidco Common Shares (as defined in the JBA). Each of ONE, DS and Washington Family Holdings (including DWH) hereby acknowledges and agrees that any prior equity financing commitment letter entered into by such party in favor of Parent is hereby terminated and replaced by, and any reference in the JBA to such equity financing commitment letter shall instead refer to, the applicable equity financing commitment letter in favor of Parent entered into by ONE (as such may be amended or modified from time to time in compliance with the terms thereof, the “ONE ECL”), DWH on behalf of Washington Family Holdings (as such may be amended or modified from time to time in compliance with the terms thereof, the “Washington Family Holdings ECL”), or DS (as such may be amended or modified from time to time in compliance with the terms thereof, the “DS ECL”), in each case as of the date hereof. |
| 4. | Section 9.4(f) of the JBA is hereby amended and restated in its entirety to read as follows: “any exercise, amendment or waiver of a right (including any termination right) or obligation in, or condition precedent under, any Definitive Transaction Document;” |
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| 5. | Each Investor shall, and shall use its commercially reasonable efforts to cause its Affiliates to, consistent with the undertakings and limitations (including with respect to competitively sensitive information and attorney-client privilege) set forth in Sections 8.01(a) and 8.01(c) of the Merger Agreement (but subject to the limitations set forth in Section 8.01(b) of the Merger Agreement and Section 7 of this Agreement), supply and provide all necessary information to any Governmental Authority requesting such information in connection with filings or notifications under applicable laws that are required as a result of, or pursuant to, the Merger Agreement, including, without limitation, information required or requested to be provided in connection with any Competition Law and/or Foreign Investment Law in connection with any approvals required (or which the Company and Parent otherwise determine to seek) in connection with the consummation of the Merger. |
| 6. | The last sentence of Section 2.2 of the JBA is hereby deleted and the following sentences are added at the end of Section 2.2: |
“Prior to the Closing, FF will exercise all of the FF Warrants for cash (the consummation of which exercise shall be contingent on the consummation of the closing of the Merger). In addition, in the event that the Holdback Shares have not been issued prior to the closing of the Merger, FF shall enter into an amendment with the Company as described in Section 8.10(b) of the Merger Agreement.”
| 7. | The third sentence of Section 5 of the JBA is hereby amended and restated in its entirety to read as follows (with capitalized terms used below, but not defined in the JBA, as defined in the Merger Agreement): |
“Notwithstanding the foregoing or anything else in this Agreement to the contrary (including Section 9.5), nothing in this Section 5 or otherwise in this Agreement shall require any Investor, its subsidiaries, Affiliates or direct or indirect equityholders to offer, propose, negotiate, accept, effect, commit to or agree to (A) sell, transfer, divest, license or otherwise dispose of or hold separate any part of its or their businesses, operations, properties, products, product lines, services, rights or assets, (B) terminate, create, modify or amend any relationships, contractual rights, obligations, ventures or other arrangements, (C) agree to, or implement any changes to, any restrictions on or other impairment of the management, conduct of business, operation or ownership of its or their businesses, operations, properties, products, product lines, services, rights, interests or assets or (D) any other remedy, condition or commitment of any kind, in each case, other than, if reasonably possible, based on Parent’s good faith judgment, to finalize with the applicable Governmental Authority prior to the End Date (including any automatic or mutually agreed extension thereof), (x) any commercially reasonable requirement to restrict certain information with respect to the business of the Company and its Subsidiaries from an Investor or its Affiliates or Representatives or (y) any such measures with respect to the Company and its Subsidiaries that would, individually and in the aggregate, reasonably be expected to be immaterial to the business, assets, liabilities, condition (financial or otherwise) and results of operations of the Company and its Subsidiaries, taken as a whole; provided that the remedies, conditions and commitments described in the preceding clauses (x) and (y) shall not be required (or permitted by the Company or its Subsidiaries or Affiliates) to be offered, proposed, negotiated, accepted, effected, committed to or agreed to with any applicable Governmental Authority prior to the parties’ receipt of a remediation proposal from such Governmental Authority or notification that such Governmental Authority intends to conduct any in-depth investigation, including any U.S. Second Request, and shall not be permitted to be taken unless they are conditioned upon the Closing and effective only upon or after the Effective Time.”
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| 8. | For purposes of implementing the parties’ agreement to appoint and maintain an agent for service of process in the State of Delaware, each such party that has not as of the date hereof already duly appointed such an agent in Delaware does hereby appoint Universal Registered Agents, Inc., as such agent. |
| 9. | Section 13 of the JBA is hereby incorporated by reference in its entirety, mutatis mutandis, as if set forth herein; provided however that (i) Section 1, Section 5, Section 6, Section 7 and this Section 9 of this Agreement (as such sections are implemented in the JBA) shall not be amended without the written consent of the Special Committee (on behalf of the Company), (ii) the Special Committee (on behalf of the Company) is hereby made an express third-party beneficiary of Section 1, Section 5, Section 6, Section 7 and this Section 9 of this Agreement (as such sections are implemented in the JBA) solely in order to specifically enforce such Sections against the Investors and not for any other purposes, including any claim for monetary damages; and (iii) in addition to Section 13.3 of the JBA, (a) ONE hereby irrevocably submits to the personal jurisdiction of the courts of Singapore, as well as to the jurisdiction of all courts to which an appeal may be taken from such courts, in any suit, action or proceeding arising out of or relating to this Agreement and the JBA, (b) agrees that all claims in respect of such suit, action or proceeding may be brought, heard and determined in the courts of Singapore and (c) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from such courts of Singapore. The rights of the Company under Section 1, Section 5, Section 6, Section 7 and this Section 9 shall survive any termination of the JBA, other than a termination pursuant to Section 12.1(c) or Section 12.1(e) thereof. |
| 10. | Except as expressly set forth above, the JBA remains unmodified and in full force and effect. |
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IN WITNESS WHEREOF, each Investor has caused this Agreement to be duly executed as of the date first above written.
| HAMBLIN WATSA INVESTMENT COUNSEL LTD., in its capacity as investment manager and/or pursuant to a power of attorney on behalf of all entities set out on Schedule 2 of the JBA, other than The Second 810 Holdco Ltd. and The Sixty Three Foundation | ||
| By: | /s/ Peter Clarke | |
| Name: | Peter Clarke | |
| Title: | Chief Risk Officer | |
| THE SECOND 810 HOLDCO LTD. | ||
| By: | /s/ V. Prem Watsa | |
| Name: | V. Prem Watsa | |
| Title: | President | |
| THE SIXTY THREE FOUNDATION | ||
| By: | /s/ V. Prem Watsa | |
| Name: | V. Prem Watsa | |
| Title: | Director | |
[Signature Page to Letter Agreement Re: JBA]
| OCEAN NETWORK EXPRESS PTE. LTD. | ||
| By: | /s/ Jeremy Nixon | |
| Name: | Jeremy Nixon | |
| Title: | Chief Executive Officer | |
[Signature Page to Letter Agreement Re: JBA]
| DEEP WATER HOLDINGS, LLC | ||
| By: | /s/ Jerry Lemon | |
| Name: | Jerry Lemon | |
| Title: | President | |
| THE KYLE ROY WASHINGTON 2014 TRUST | ||
| By: | /s/ Christopher Hawks | |
| Name: | Christopher Hawks | |
| Title: | President, Copper Lion, Inc., Trustee | |
| KYLE ROY WASHINGTON 2005 IRREVOCABLE TRUST CREATED UNDER AGREEMENT DATED JULY 15, 2005, INCLUDING ALL SUBSEQUENT AMENDMENTS, MODIFICATIONS AND RESTATEMENTS | ||
| By: | /s/ Christopher Hawks | |
| Name: | Christopher Hawks | |
| Title: | President, Copper Lion, Inc., Trustee | |
| THE KEVIN LEE WASHINGTON 2014 TRUST | ||
| By: | /s/ Christopher Hawks | |
| Name: | Christopher Hawks | |
| Title: | President, Copper Lion, Inc., Trustee | |
[Signature Page to Letter Agreement Re: JBA]
| /s/ David L. Sokol | |
| DAVID L. SOKOL |
[Signature Page to Letter Agreement Re: JBA]
Exhibit A
Form of Shareholders Agreement
[attached]