UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM 8-A

 

 

FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES

PURSUANT TO SECTION 12(b) OR 12(g) OF THE

SECURITIES EXCHANGE ACT OF 1934

 

 

SEASPAN CORPORATION

(Exact Name of Registrant as Specified in its Charter)

 

 

 

Republic of The Marshall Islands   N/A
(State of Incorporation or Organization)   (IRS Employer Identification No.)

Unit 2, 7th Floor, Bupa Centre,

141 Connaught Road West,

Hong Kong

China

(Address of principal executive office)

Securities to be registered pursuant to Section 12(b) of the Act:

 

Title of Each Class

To Be So Registered

 

Name Of Each Exchange On Which

Each Class Is To Be Registered

8.25% Series E Cumulative Redeemable Perpetual

Preferred Shares, par value $0.01

  New York Stock Exchange

 

 

If this form relates to the registration of a class of securities pursuant to Section 12(b) of the Exchange Act and is effective pursuant to General Instruction A(c), check the following box.   x

If this form relates to the registration of a class of securities pursuant to Section 12(g) of the Exchange Act and is effective pursuant to General Instruction A(d), check the following box.   ¨

Securities Act registration statement file number to which this form relates:

333-190718.

Securities to be registered pursuant to Section 12(g) of the Act:

None.

 

 

 

INFORMATION REQUIRED IN REGISTRATION STATEMENT

 

Item 1. Description of Registrant’s Securities to be Registered.

A description of the 8.25% Series E Cumulative Redeemable Perpetual Preferred Shares of Seaspan Corporation (the “Registrant”) is set forth under the caption “Description of Series E Preferred Shares” in the prospectus filed by the Registrant on February 6, 2014, pursuant to Rule 424(b) under the Securities Act of 1933, as amended, which prospectus constitutes a part of the Registrant’s Registration Statement on Form F-3 (Registration No. 333-190718), filed with the Securities and Exchange Commission on August 19, 2013. Such prospectus, in the form in which it is so filed, shall be deemed to be incorporated herein by reference.

 

Item 2. Exhibits.

 

3.1    Amended and Restated Articles of Incorporation of Seaspan Corporation (incorporated herein by reference to Exhibit 3.1 to the Company’s Amendment No. 2 to Form F-1 (File No. 333-126762), filed with the SEC on August 4, 2005).
3.2    Articles of Amendment to the Amended and Restated Articles of Incorporation of Seaspan Corporation.
3.3    Amended and Restated Bylaws of Seaspan Corporation (incorporated herein by reference to Exhibit 1.2 to the Company’s Annual Report on Form 20-F for the year ended December 31, 2011 (File No. 001-32591), filed with the SEC on March 23, 2012).
3.4    Statement of Designation of the 8.25% Series E Cumulative Redeemable Perpetual Preferred Shares.
4.1    Specimen Copy of 8.25% Series E Cumulative Redeemable Perpetual Preferred Share Certificate.

 

2

SIGNATURE

Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereto duly authorized.

Date: February 13, 2014

 

SEASPAN CORPORATION

By:

  /s/ Sai W. Chu
 

 

  Sai W. Chu
  Chief Financial Officer

Exhibit 3.2

ARTICLES OF AMENDMENT

OF

SEASPAN CORPORATION

UNDER SECTION 90 OF THE MARSHALL ISLANDS

BUSINESS CORPORATIONS ACT

I, Mark W. Chu, the Secretary of SEASPAN CORPORATION (the “ Corporation ”), for the purpose of amending the Amended and Restated Articles of Incorporation, as amended, of the Corporation hereby certify:

 

1. The name of the Corporation is SEASPAN CORPORATION.

 

2. The Articles of Incorporation were filed with the Registrar of Corporations as of the 3 rd day of May, 2005.

 

3. The Amended Articles of Incorporation were filed with the Registrar of Corporations as of the 8 th day of July, 2005.

 

4. The Amended and Restated Articles of Incorporation were filed with the Registrar of Corporations as of the 3 rd day of August, 2005.

 

5. Statements of Designation relating to the Corporation’s Series A, B, C, D and R preferred shares were filed with the Registrar of Corporations as of January 29, 2009, May 27, 2010, January 27, 2011, December 12, 2012 and April 19, 2011, respectively.

 

6. The Amended and Restated Articles of Incorporation, as amended, are hereby amended by deleting Article III in its entirety and replacing it with the following:

ARTICLE III

AUTHORIZED SHARES

Section 3.1 Authorized Shares . The aggregate number of shares of stock that the Corporation shall have authority to issue is three-hundred seventy-five million one hundred (375,000,100), consisting of common shares and preferred shares.

(a) Number of Common Shares . The Corporation is authorized to issue two-hundred and twenty-five million one hundred (225,000,100) common shares, consisting of two-hundred million (200,000,000) Class A common shares, each with a par value of one United States cent (US$0.01) (the “Class A Common Shares”), twenty-five million (25,000,000) Class B common shares, each with a par value of one United States cent (US$0.01) (the “Class B Common Shares”), and one-hundred (100) Class C common shares, each with a par value of one United States cent (US$0.01) (the “Class C Common Shares,” together with the Class A Common Shares and the Class B Common Shares, the “Common Shares”).

(b) Number of Preferred Shares . The Corporation is authorized to issue one hundred fifty million (150,000,000) preferred shares, each with a par value of one United States cent (US$0.01) (the “Preferred Shares”).

In these Amended and Restated Articles of Incorporation, unless specifically stated otherwise herein, the term “shares” means the Common Shares and the Preferred Shares, and the term “shareholders” means holders of the Common Shares and the Preferred Shares.

 

7. This amendment to the Amended and Restated Articles of Incorporation was adopted in accordance with Sections 88 and 89 of the Marshall Islands Business Corporations Act. This amendment to the Amended and Restated Articles of Incorporation was duly authorized by action of the Corporation’s Board of Directors and by majority votes of the Corporation’s shareholders and of the holders of the Corporation’s outstanding preferred shares, respectively, at a special meeting held on January 28, 2014.

[ Signature Page Follows ]

IN WITNESS WHEREOF, I have executed these Articles of Amendment on this 28 th day of January, 2014.

 

SEASPAN CORPORATION
By:   /s/ Mark W. Chu
 

 

  Mark W. Chu, Secretary

Exhibit 3.4

STATEMENT OF DESIGNATION OF THE

8.25% CUMULATIVE REDEEMABLE PERPETUAL PREFERRED SHARES – SERIES E

OF

SEASPAN CORPORATION

SEASPAN CORPORATION, a corporation organized and existing under the Business Corporations Act (the “ BCA ”) of the Republic of the Marshall Islands (the “ Corporation ”), in accordance with the provisions of Section 35 thereof and the Corporation’s Articles of Incorporation, does hereby certify:

The Board of Directors of the Corporation has adopted the following resolution creating a series of 15,000,000 Preferred Shares (this and other capitalized terms shall have the same meaning as in the Articles of Incorporation, unless otherwise specified in this Statement of Designation or unless the context otherwise requires) of the Corporation designated as “8.25% Cumulative Redeemable Perpetual Preferred Shares—Series E.”

RESOLVED, that a series of Preferred Shares, par value $0.01 per share, of the Corporation be and hereby is created, and that the designation and number of shares of such series, and the voting and other powers, preferences and relative, participating, optional or special rights and qualifications, limitations and restrictions thereof, of the shares of such series, are as follows:

1. Designation. The distinctive serial designation of such series of Preferred Shares is “8.25% Cumulative Redeemable Perpetual Preferred Shares – Series E” (“ Series E Preferred Shares ”). Each Series E Preferred Share shall be identical in all respects to every other Series E Preferred Share, except as to the respective dates from which the Series E Liquidation Preference shall increase or from which dividends may begin accruing, to the extent such dates may differ. The Series E Preferred Shares represent perpetual equity interests in the Corporation and shall not give rise to a claim for payment of a principal amount at a particular date.

2. Shares.

 

  (a) Number . The authorized number of Series E Preferred Shares shall be 15,000,000. Series E Preferred Shares that are purchased or otherwise acquired by the Corporation shall be cancelled and shall revert to authorized but unissued Preferred Shares, undesignated as to series.

 

  (b) Securities Depository . The Series E Preferred Shares shall be represented by a single certificate registered in the name of the Securities Depository or its nominee, and no Holder of the Series E Preferred Shares shall be entitled to receive a certificate evidencing such shares, unless otherwise required by law or the Securities Depository gives notice of its intention to resign or is no longer eligible to act as such and the Corporation shall have not selected a substitute Securities Depository within 60 calendar days thereafter. So long as the Securities Depository shall have been appointed and is serving, payments and communications made by the Corporation to Holders of the Series E Preferred Shares shall be made by making payments to, and communicating with, the Securities Depository.

 

1

3. Dividends.

 

  (a) Dividends . Dividends on each Series E Preferred Share shall be cumulative and shall accrue at the Dividend Rate from the Original Issue Date (or, for any subsequently issued and newly outstanding shares, from the Dividend Payment Date immediately preceding the issuance date of such shares) until such time as the Corporation pays the dividend or redeems the shares in full in accordance with Section 6 below, whether or not such dividends shall have been declared, and whether or not there are profits, surplus, or other funds legally available for the payment of dividends. Holders of Series E Preferred Shares shall be entitled to receive dividends from time to time out of any assets of the Corporation legally available for the payment of dividends at the Dividend Rate per share, when, as, and if declared by the Board of Directors. Dividends, to the extent declared to be paid by the Corporation in accordance with this Statement of Designation, shall be paid quarterly on each Dividend Payment Date. Dividends shall accumulate in each Dividend Period from and including the preceding Dividend Payment Date (other than the initial Dividend Period, which shall commence on and include the Original Issue Date), to but excluding the next Dividend Payment Date for such Dividend Period, and dividends shall accrue on accumulated dividends at the Dividend Rate. If any Dividend Payment Date otherwise would fall on a date that is not a Business Day, declared dividends shall be paid on the immediately succeeding Business Day without the accumulation of additional dividends. Dividends on the Series E Preferred Shares shall be payable based on a 360-day year consisting of twelve 30-day months.

 

  (b)

Payment and Priorities of Dividends . Not later than 5:00 p.m., New York City time, on each Dividend Payment Date, the Corporation shall pay those dividends, if any, on the Series E Preferred Shares that shall have been declared by the Board of Directors to the Holders of record of such shares as such Holders’ names appear on the stock transfer books of the Corporation maintained by the Registrar and Transfer Agent on the applicable Record Date. The applicable record date (the “ Record Date ”) for any dividend payment shall be the Business Day immediately preceding the applicable Dividend Payment Date, except that in the case of payments of dividends in arrears, the Record Date with respect to a Dividend Payment Date shall be such date as may be designated by the Board of Directors in accordance with the Corporation’s Bylaws and this Statement of Designation. No dividend shall be declared or paid or set apart for payment on any Junior Securities (other than a dividend payable solely in shares of Junior Securities) unless (i) full cumulative dividends have been or contemporaneously are being paid or provided for on all outstanding Series E Preferred Shares and any Parity Securities through the most recent respective dividend payment dates and (ii) the Net Worth to Preferred Stock Ratio, as calculated pursuant to Section 8, is greater than 1.00. Accumulated dividends in arrears for any past Dividend Period may be declared by the Board of Directors and paid on any date fixed by the Board of Directors, whether or not a Dividend Payment Date, to Holders of the Series E Preferred Shares on the record date for such payment, which may not be more than 60 days, nor less than 15 days, before such payment date. Subject to the next succeeding sentence, if all accumulated dividends in arrears on all outstanding Series E Preferred Shares and any Parity Securities shall not have been declared and paid, or if sufficient funds for the payment thereof shall not have been set apart, payment of accumulated dividends in arrears on the Series E Preferred Shares and any such Parity Securities shall be made in order of their respective dividend payment dates, commencing with the earliest. If less than all dividends payable with respect to all Series E Preferred Shares and any Parity Securities are paid, any partial payment shall be made pro rata with respect to the Series E Preferred Shares and any Parity Securities entitled to a dividend payment at such time in proportion to

 

2

  the aggregate dividend amounts remaining due in respect of such shares at such time. Holders of the Series E Preferred Shares shall not be entitled to any dividend, whether payable in cash, property or stock, in excess of full cumulative dividends. Except insofar as dividends accrue on the amount of any accumulated and unpaid dividends as described in Section 3(a), no interest or sum of money in lieu of interest shall be payable in respect of any dividend payment which may be in arrears on the Series E Preferred Shares. So long as the Series E Preferred Shares are held of record by the nominee of the Securities Depository, declared dividends shall be paid to the Securities Depository in same-day funds on each Dividend Payment Date.

4. Liquidation Rights.

 

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

 

  (b) Partial Payment . If, in the event of any distribution or payment described in Section 4(a) above where the Corporation’s assets available for distribution to holders of the outstanding Series E Preferred Shares and any Parity Securities are insufficient to satisfy the applicable Liquidation Preference for such Series E Preferred Shares and Parity Securities, the Corporation’s then remaining assets or proceeds thereof legally available for distribution to shareholders of the Corporation shall be distributed among the Series E Preferred Shares and such Parity Securities, as applicable, ratably on the basis of their relative aggregate Liquidation Preferences. To the extent that the Holders of Series E Preferred Shares receive a partial payment of their Series E Liquidation Preference, such partial payment shall reduce the Series E Liquidation Preference of their Series E Preferred Shares, but only to the extent of such amount paid.

 

3

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

5. Voting Rights.

 

  (a) General. The Series E Preferred Shares shall have no voting rights except as set forth in this Section 5 or as otherwise provided by the BCA.

 

  (b) Right to Elect One Director. In the event that six quarterly dividends, whether consecutive or not, payable on the Series E Preferred Shares are in arrears, the Holders of Series E Preferred Shares shall have the right, voting separately as a class together with holders of any Parity Securities upon which like voting rights have been conferred and are exercisable, at the next meeting of shareholders called for the election of directors, to elect one member of the Board of Directors, and the size of the Board of Directors shall be increased as needed to accommodate such change (unless the size of the Board of Directors already has been increased by reason of the election of a director by holders of Parity Securities upon which like voting rights have been conferred and with which the Series E Preferred Shares voted as a class for the election of such director). Such right of such Holders of Series E Preferred Shares to elect a member of the Board of Directors shall continue until such time as all dividends accumulated and in arrears on the Series E Preferred Shares shall have been paid in full, at which time such right shall terminate, subject to revesting in the event of each and every subsequent failure to pay six quarterly dividends with respect to the Series E Preferred Shares as described above in this Section 5(b). Upon any termination of the right of the Holders of the Series E Preferred Shares and, if applicable, any other Parity Securities to vote as a class for such director, the term of office of the director then in office elected by such Holders and holders voting as a class shall terminate immediately. Any director elected by the Holders of the Series E Preferred Shares and, if applicable, any other Parity Securities shall be entitled to one vote on any matter before the Board of Directors.

 

  (c) Other Voting Rights.

 

  1. Unless the Corporation shall have received the affirmative vote or consent of the Holders of at least two-thirds of the outstanding Series E Preferred Shares, voting as a single class, the Corporation may not adopt any amendment to the Articles of Incorporation that adversely alters the preferences, powers or rights of the Series E Preferred Shares.

 

  2. Unless the Corporation shall have received the affirmative vote or consent of the Holders of at least two-thirds of the outstanding Series E Preferred Shares, voting as a class together with holders of any other Parity Securities upon which like voting rights have been conferred and are exercisable, the Corporation may not (x) issue any Parity Securities or Senior Securities if the cumulative dividends payable on outstanding Series E Preferred Shares are in arrears or (y) create or issue any Senior Securities.

 

  (d)

Voting Power. For any matter described in this Section 5 in which the Holders of the Series E Preferred Shares are entitled to vote as a class (whether separately or together with the holders of any Parity Securities), such Holders shall be entitled to one vote per Series E

 

4

  Preferred Share. Any Series E Preferred Shares held by the Corporation or any of its subsidiaries or Affiliates shall not be entitled to vote.

6. Optional Redemption. The Corporation shall have the right at any time on or after February 13, 2019 to redeem the Series E Preferred Shares, in whole or in part, from any source of funds legally available for such purpose. Any such redemption shall occur on a date set by the Corporation (the “ Redemption Date ”).

 

  (a) Redemption Price . The Corporation shall effect any such redemption by paying cash for each Series E Preferred Share to be redeemed equal to the Series E Liquidation Preference for such share on such Redemption Date (the “ Redemption Price ”). So long as the Series E Preferred Shares are held of record by the nominee of the Securities Depository, the Redemption Price shall be paid by the Paying Agent to the Securities Depository on the Redemption Date.

 

  (b) Redemption Notice . The Corporation shall give notice of any redemption by mail, postage prepaid, not less than 15 days and not more than 60 days before the scheduled Redemption Date, to the Holders of record (as of the 5:00 p.m. New York City time on the Business Day next preceding the day on which notice is given) of any Series E Preferred Shares to be redeemed as such Holders’ names appear on the Corporation’s stock transfer books maintained by the Registrar and Transfer Agent and at the address of such Holders shown therein. Such notice (the “ Redemption Notice ”) shall state: (1) the Redemption Date, (2) the number of Series E Preferred Shares to be redeemed and, if less than all outstanding Series E Preferred Shares are to be redeemed, the number (and the identification) of shares to be redeemed from such Holder, (3) the Redemption Price, (4) the place where the Series E Preferred Shares are to be redeemed and shall be presented and surrendered for payment of the Redemption Price therefor and (5) that dividends on the shares to be redeemed shall cease to accumulate from and after such Redemption Date.

 

  (c) Effect of Redemption; Partial Redemption. If the Corporation elects to redeem less than all of the outstanding Series E Preferred Shares, the number of shares to be redeemed shall be determined by the Corporation, and such shares shall be redeemed by such method of selection as the Securities Depository shall determine, with adjustments to avoid redemption of fractional shares. The aggregate Redemption Price for any such partial redemption of the outstanding Series E Preferred Shares shall be allocated correspondingly among the redeemed Series E Preferred Shares. The Series E Preferred Shares not redeemed shall remain outstanding and entitled to all the rights and preferences provided in this Statement of Designation.

 

  (d)

Redemption Funds . If the Corporation gives or causes to be given a Redemption Notice, the Corporation shall deposit with the Paying Agent funds, sufficient to redeem the Series E Preferred Shares as to which such Redemption Notice shall have been given, no later than 5:00 p.m. New York City time on the Business Day immediately preceding the Redemption Date, and shall give the Paying Agent irrevocable instructions and authority to pay the Redemption Price to the Holders of the Series E Preferred Shares to be redeemed upon surrender or deemed surrender (which shall occur automatically if the certificate representing such shares is issued in the name of the Securities Depository or its nominee) of the certificates therefor as set forth in the Redemption Notice. If the Redemption Notice shall have been given, from and after the Redemption Date, unless the Corporation defaults in providing funds sufficient for such redemption at the time and place specified for payment pursuant to the Redemption Notice, all dividends on such Series E Preferred

 

5

Shares to be redeemed shall cease to accumulate and all rights of Holders of such shares as the Corporation’s shareholders shall cease, except the right to receive the Redemption Price, and such shares shall not thereafter be transferred on Corporation’s stock transfer books maintained by the Registrar and Transfer Agent or be deemed to be outstanding for any purpose whatsoever. The Corporation shall be entitled to receive from the Paying Agent the interest income, if any, earned on such funds deposited with the Paying Agent (to the extent that such interest income is not required to pay the Redemption Price of the Series E Preferred Shares to be redeemed), and the Holders of any shares so redeemed shall have no claim to any such interest income. Any funds deposited with the Paying Agent hereunder by the Corporation for any reason, including redemption of Series E Preferred Shares, that remain unclaimed or unpaid after two years after the applicable Redemption Date or other payment date, shall be, to the extent permitted by law, repaid to the Corporation upon its written request after which repayment the Holders of the Series E Preferred Shares entitled to such redemption or other payment shall have recourse only to the Corporation. Notwithstanding any Redemption Notice, there shall be no redemption of any Series E Preferred Shares called for redemption until funds sufficient to pay the full Redemption Price of such shares shall have been deposited by the Corporation with the Paying Agent.

 

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

 

  (f) Redemption Priority . Notwithstanding anything to the contrary in this Section 6, in the event that full cumulative dividends on the Series E Preferred Shares and any Parity Securities shall not have been paid or declared and set apart for payment, the Corporation shall not be permitted to repurchase, redeem or otherwise acquire, in whole or in part, any Series E Preferred Shares or Parity Securities except pursuant to a purchase or exchange offer made on the same terms to all holders of Series E Preferred Shares and any Parity Securities. The Corporation shall not be permitted to redeem, repurchase or otherwise acquire any Common Shares or any other Junior Securities unless full cumulative dividends on the Series E Preferred Shares and any Parity Securities for all prior and the then-ending Dividend Periods shall have been paid or declared and set apart for payment.

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

 

  (a) Seniority . Senior to (i) all classes of Common Shares and (ii) any other class or series of capital stock established after the Original Issue Date by the Board of Directors, the terms of which class or series do not expressly provide that it is made senior to or on parity with the Series E Preferred Shares as to dividend distributions and distributions upon any Liquidation Event (collectively referred to with the Corporation’s Common Shares as “ Junior Securities ”);

 

  (b)

Parity . On a parity with (i) the Series C Preferred Shares (including any additional Series C Preferred Shares issued after the Original Issue Date), (ii) the Series D Preferred Shares (including any additional Series D Preferred Shares issued after the Original Issue Date) and

 

6

  (iii) any other class or series of capital stock established after the Original Issue Date by the Board of Directors, the terms of which class or series are not expressly subordinated or senior to the Series E Preferred Shares as to dividend distributions and distributions upon any Liquidation Event (collectively referred to as “ Parity Securities ”); and

 

  (c) Junior . Junior to any class or series of capital stock established after the Original Issue Date by the Board of Directors, the terms of which class or series expressly provide that it ranks senior to the Series E Preferred Shares as to dividend distributions and distributions upon any Liquidation Event (collectively referred to as “ Senior Securities ”).

The Corporation may issue Junior Securities and, subject to Section 5(c)(2) of this Statement of Designation, Parity Securities from time to time in one or more series without the consent of the holders of the Series E Preferred Shares. The Board of Directors has the authority to determine the preferences, powers, qualifications, limitations, restrictions and special or relative rights or privileges, if any, of any such series before the issuance of any shares of that series. The Board of Directors shall also determine the number of shares constituting each series of securities.

8. Financial Covenant.

 

  (a) Limitation on Minimum Net Worth. The Corporation shall not permit the Net Worth to Preferred Stock Ratio to be less than or equal to 1.00.

 

  (b) Compliance Measurement . Compliance with such covenant shall be measured on the last day of each of the Corporation’s fiscal quarters, commencing March 31, 2014. Within 60 days after the end of each fiscal quarter, the Corporation shall deliver to the Registrar and Transfer Agent an Officer’s Certificate confirming compliance with such covenant. Each such Officer’s Certificate shall be made available to the Holders of the Series E Preferred Shares upon request to the Registrar and Transfer Agent. The Corporation shall mail, within five Business Days of the discovery thereof, to all Holders of the Series E Preferred Shares and the Registrar and Transfer Agent, notice of any default in compliance with such covenant. Noncompliance by the Corporation with such covenant shall limit the Corporation’s ability to pay dividends on any Junior Securities, as set forth in Section 3(b) of this Statement of Designation.

 

  (c) Interpretation . Any accounting term, phrase, calculation, determination or treatment used, required or referred to in this Section 8 or any applicable definition in Section 9 shall be construed in accordance with U.S. GAAP.

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

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

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

 

7

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

“ Board of Directors ” means the board of directors of the Corporation or, to the extent permitted by the Articles of Incorporation and the BCA, any authorized committee thereof.

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

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

“ Cash and Cash Equivalents ” means, as of a given date, the Corporation’s cash and cash equivalents as determined in accordance with U.S. GAAP.

“ Common Shares ” means the Class A common shares of the Corporation, par value $0.01 per share, and any other outstanding class of common shares of the Corporation.

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

“ Dividend Payment Date ” means each January 30, April 30, July 30 and October 30 of each year, commencing April 30, 2014; provided, however, that if any Dividend Payment Date would otherwise occur on a day that is not a Business Day, such Dividend Payment Date shall instead be on the immediately succeeding Business Day.

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

“ Dividend Rate ” means a rate equal to 8.25% per annum of the Stated Series E Liquidation Preference per share.

“ Holder ” means the Person in whose name the Series E Preferred Shares are registered on the stock register of the Corporation maintained by the Registrar and Transfer Agent.

“ Intangible Assets ” means, in respect of the Corporation as of a given date, the intangible assets of the Corporation of the types, if any, presented in the Corporation’s consolidated balance sheet.

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

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

“ Liquidation Preference ” means, in connection with any distribution in connection with a Liquidation Event pursuant to Section 4(a) of this Statement of Designation and with respect to any holder of any class or series of capital stock of the Corporation, the amount otherwise payable to such holder in such distribution with respect to such class or series of capital stock (assuming no limitation on the assets of the Corporation available for such distribution), including an amount equal to any accrued but unpaid dividends thereon to the date fixed for such payment, whether or not declared (if the terms of

 

8

the applicable class or series of capital stock of the Corporation so provide). For avoidance of doubt, for the foregoing purposes the Series E Liquidation Preference is the Liquidation Preference with respect to the Series E Preferred Shares.

“ Net Worth ” means, as of a given date, the result of, without duplication:

(a) Total Assets, less

(b) Intangible Assets, less

(c) Total Borrowings (without giving effect to any fair value adjustments pursuant to the Financial Accounting Standards Board’s Accounting Standards Codification 820).

“ Net Worth to Preferred Stock Ratio ” means, as of a given date, the result of dividing (x) Net Worth as of such date by (y) the aggregate Preferred Stock Amount as of such date.

“ Non-Recourse Liabilities ” means, in respect of the Corporation or any subsidiary thereof as of a given date, the non-recourse liabilities as described in subparts (a) through and including (h) of the definition of “Total Borrowings” below and of the types, if any, presented in the Corporation’s consolidated financial statements.

“ Officer’s Certificate ” means a certificate signed by the Corporation’s Chief Executive Officer or the Chief Financial Officer or another duly authorized officer.

“ Original Issue Date ” means February 13, 2014.

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

“ Paying Agent ” means American Stock Transfer & Trust Company, acting in its capacity as paying agent for the Series E Preferred Shares, and its respective successors and assigns or any other payment agent appointed by the Corporation.

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

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

“ Preferred Stock Amount ” means, in respect of any series of Preferred Shares, the sum, without duplication, of (x) the aggregate Liquidation Preference of the outstanding shares of such Preferred Shares as of the relevant measurement date and (y) the aggregate amount of any accumulated and unpaid dividends or other distributions in respect of the outstanding shares of such Preferred Shares as of the relevant measurement date.

“ Record Date ” has the meaning set forth in Section 3(b) of this Statement of Designation.

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

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

 

9

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

“ Registrar ” means American Stock Transfer & Trust Company, acting in its capacity as registrar for the Series E Preferred Shares, and its successors and assigns or any other registrar appointed by the Corporation.

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

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

“ Series C Preferred Shares ” means the Corporation’s 9.5% Cumulative Redeemable Perpetual Preferred Shares – Series C.

“ Series D Preferred Shares ” means the Corporation’s 7.95% Cumulative Redeemable Perpetual Preferred Shares – Series D.

“ Series E Liquidation Preference ” means a liquidation preference for each Series E Preferred Share initially equal to $25.00 per share, which liquidation preference shall be subject to (a) increase by the per share amount of any accumulated and unpaid dividends (whether or not such dividends shall have been declared) and (b) decrease upon a distribution in connection with a Liquidation Event described in Section 4 of this Statement of Designation which does not result in payment in full of the liquidation preference of such Series E Preferred Share.

“ Series E Preferred Shares ” has the meaning set forth in Section 1 of this Statement of Designation.

“ Stated Series E Liquidation Preference ” means an amount equal to $25.00 per Series E Preferred Share.

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

“ Total Assets ” means, in respect of the Corporation on a consolidated basis, as of a given date, the aggregate of the following, without duplication:

(a) all of the assets of the Corporation of the types presented on its consolidated balance sheet; less

(b) Cash and Cash Equivalents; less

(c) Non-Recourse Liabilities; and less

(d) the assets under any vessel construction or ship purchase agreement (including novation and assignment and assumption agreements) that the Corporation is required to record on its books under U.S. GAAP even though the Corporation is no longer the legal owner of the vessel or legally obligated to take delivery of the vessel.

 

10

“ Total Borrowings ” means, in respect of the Corporation on a consolidated basis, as of a given date, the aggregate of the following, without duplication:

(a) the outstanding principal amount of any moneys borrowed; plus

(b) the outstanding principal amount of any acceptance under any acceptance credit; plus

(c) the outstanding principal amount of any bond, note, debenture or other similar instrument; plus

(d) the book values of indebtedness under a lease, charter, hire purchase agreement or other similar arrangement which would, in accordance with U.S. GAAP, be treated as a finance or capital lease; plus

(e) the outstanding principal amount of all moneys owing in connection with the sale or discounting of receivables (otherwise than on a non-recourse basis or which otherwise meet any requirements for de-recognition under U.S. GAAP); plus

(f) the outstanding principal amount of any indebtedness arising from any deferred payment agreements arranged primarily as a method of raising finance or financing the acquisition of an asset (except trade payables); plus

(g) any fixed or minimum premium payable on the repayment or redemption of any instrument referred to in clause (c) of this definition; plus

(h) the outstanding principal amount of any indebtedness of any Person of a type referred to in the above clauses of this definition which is the subject of a guarantee given by the Corporation to the extent that such guaranteed indebtedness is determined and given a value in respect of the Corporation on a consolidated basis in accordance with U.S. GAAP; less

(i) Cash and Cash Equivalents; and less

(j) Non-Recourse Liabilities.

Notwithstanding the foregoing, “ Total Borrowings ” shall not include any of the following:

(x) indebtedness or obligations arising from derivative transactions, such as protecting against interest rate or currency fluctuations; and

(y) indebtedness under any vessel construction or ship purchase agreement (including novation and assignment and assumption agreements) that the Corporation is required to record on its books under U.S. GAAP even though the Corporation is no longer the legal owner of the vessel or legally obligated to take delivery of the vessel.

“ Transfer Agent ” means American Stock Transfer & Trust Company, acting in its capacity as transfer agent for the Series E Preferred Shares, and its respective successors and assigns or any other transfer agent appointed by the Corporation.

 

11

“ U.S. GAAP ” means generally accepted accounting principles in the United States of America, as in effect as of January 1, 2014.

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

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

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

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

13. Other Rights. The Series E Preferred Shares shall not have any voting powers, preferences or relative, participating, optional or other special rights, or qualifications, limitations or restrictions thereof, other than as set forth in this Statement of Designation or in the Articles of Incorporation or as provided by applicable law.

[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]

 

12

IN WITNESS WHEREOF, the undersigned, being duly authorized thereto, does hereby affirm that this certificate is the act and deed of the Corporation and that the facts herein stated are true, and accordingly has hereunto set his hand this 6th day of February, 2014.

 

SEASPAN CORPORATION

By:

  /s/ Sai W. Chu
 

 

  Name: Sai W. Chu
  Title: Chief Financial Officer

LOGO

[Number]
PREFERRED STOCK
[Number of Shares]
Seaspan Corporation
Incorporated Under the Laws of the Republic of The Marshall Islands
This Certifies that
IS THE OWNER OF
fully paid and non-assessable PAR VALUE $0.01, 8.25% Cumulative REDEEMABLE PERPETUAL Preferred SHARES – Series E of Seaspan Corporation
Transferable on the books of the Corporation by the holder hereof in person or by duly authorized attorney upon surrender of this Certificate, properly endorsed.
This Certificate and the shares represented hereby are issued and shall be held subject to all the provisions of the Amended and Restated Articles of Incorporation and Bylaws of the Corporation and the Statement of Designation related to the 8.25% Cumulative Redeemable Perpetual Preferred Shares – Series E and the amendments from time to time made thereto.
This Certificate is not valid unless countersigned and registered by the Transfer Agent and Registrar.
Witness the seal of the Corporation and the signatures of its duly authorized officers.
Dated:
Countersigned and Registered
American Stock Transfer & TrUST Company, LLC
TRANSFER AGENT AND REGISTRAR
See reverse side for CERTAIN DEFINITIONS AND transfer restrictions
CHIEF EXECUTIVE OFFICER
AUTHORIZED SIGNATURE
SECRETARY

The Corporation will furnish without charge to each Seaspan Corporation shareholder who so requests a statement of the number of shares constituting each class or series of stock and the designation thereof, and a copy of the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.

The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:

 

TEN COM   —    as tenants in common
TEN ENT   —    as tenants by the entireties
JT TEN   —    as joint tenants with right of survivorship and not as tenants in common
UNIF GIFT MIN ACT   —  

 

  Custodian  

 

   

(Cust)

    (Minor)
    Under Uniform Gifts to Minors
    Act  

 

      (State)
 

 

Additional abbreviations may also be used though not in the above list.

For value received ,                                                                 hereby sell, assign and transfer unto

 

PLEASE INSERT SOCIAL SECURITY OR OTHER

IDENTIFYING NUMBER OF ASSIGNEE

 

 

 

 

(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)

 

 

 

 

 

 

  shares

represented by the within Certificate, and do hereby irrevocably constitute and appoint

 

 

  Attorney

to transfer the said shares on the books of the within named Corporation with full power of substitution in the premises.

Dated                                          

NOTICE:   THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.

 

SIGNATURE(S) GUARANTEED:

 

THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15.