UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16
UNDER THE SECURITIES EXCHANGE ACT OF 1934
Date of Report: February 27, 2020
Commission File Number: to be assigned*
ATLAS CORP.
(Exact name of Registrant as specified in its Charter)
2600-200 Granville Street
Vancouver, BC V6C 1S4
Canada
(Address of principal executive office)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F ☒ Form 40-F ☐
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1).
Yes ☐ No ☒
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7).
Yes ☐ No ☒
* This report is filed by the Registrant as successor issuer to Seaspan Corporation. Common shares and preferred shares of Seaspan Corporation previously were registered under Section 12(b) of the Securities Exchange Act of 1934 (the Exchange Act). The Registrants common shares and preferred shares are deemed to be registered under Section 12(b) of the Exchange Act by virtue of Rule 12g-3(a).
THIS REPORT OF FOREIGN PRIVATE ISSUER ON FORM 6-K IS HEREBY INCORPORATED BY REFERENCE INTO THE FOLLOWING REGISTRATION STATEMENTS:
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REGISTRATION STATEMENT ON FORM F-3D (FILE NO. 333-151329) FILED WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION (THE SEC) ON MAY 30, 2008; |
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REGISTRATION STATEMENT ON FORM F-3 (FILE NO. 333-180895) FILED WITH THE SEC ON APRIL 24, 2012, AS AMENDED ON MARCH 22, 2013; |
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REGISTRATION STATEMENT ON FORM F-3 (FILE NO. 333-195571) FILED WITH THE SEC ON APRIL 29, 2014, AS AMENDED ON MARCH 3, 2017 AND APRIL 19, 2017; |
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REGISTRATION STATEMENT ON FORM F-3 (FILE NO. 333-200639) FILED WITH THE SEC ON NOVEMBER 28, 2014, AS AMENDED ON MARCH 3, 2017 AND APRIL 19, 2017; |
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REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-200640) FILED WITH THE SEC ON NOVEMBER 28, 2014; |
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REGISTRATION STATEMENT ON FORM F-3D (FILE NO. 333-202698) FILED WITH THE SEC ON MARCH 12, 2015; |
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REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-212230) FILED WITH THE SEC ON JUNE 24, 2016; |
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REGISTRATION STATEMENT ON FORM F-3 (FILE NO. 333-220176) FILED WITH THE SEC ON AUGUST 25, 2017; |
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REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 333-222216) FILED WITH THE SEC ON DECEMBER 21, 2017; |
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REGISTRATION STATEMENT ON FORM F-3 (FILE NO. 333-224288) FILED WITH THE SEC ON APRIL 13, 2018, AS AMENDED ON MAY 3, 2018 AND MAY 7, 2018; |
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REGISTRATION STATEMENT ON FORM F-3D (FILE NO. 333-224291) FILED WITH THE SEC ON APRIL 13, 2018; |
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REGISTRATION STATEMENT ON FORM F-3 (FILE NO. 333-227597) FILED WITH THE SEC ON SEPTEMBER 28, 2018; |
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REGISTRATION STATEMENT ON FORM F-3 (FILE NO. 333-229312) FILED WITH THE SEC ON JANUARY 18, 2019; AND |
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REGISTRATION STATEMENT ON FORM F-3 (FILE NO. 333-230524) FILED WITH THE SEC ON MARCH 27, 2019. |
Item 1 Information Contained in this Form 6-K Report
Introductory Note
Atlas Corp. (Atlas) is providing the disclosure contained in this report on Form 6-K in connection with the February 27, 2020 closing of its holding company reorganization (the Reorganization), for the purpose of establishing Atlas as the successor issuer to Seaspan Corporation (Seaspan) with respect to its common shares and preferred shares pursuant to Rule 12g-3(a) under the Securities Exchange Act of 1934, as amended (the Exchange Act), and to disclose certain other matters. Pursuant to Rule 12g-3(a) under the Exchange Act, common shares and preferred shares of Atlas, as common shares and preferred shares of the successor issuer, are deemed registered under Section 12(b) of the Exchange Act.
Reorganization and NYSE Listing
On February 27, 2020, Seaspan completed the Reorganization. The Reorganization was effected pursuant to the Agreement and Plan of Merger, dated as of November 20, 2019, as amended (the Merger Agreement), by and among Seaspan, Atlas and Seaspan Holdco V Ltd., a wholly owned subsidiary of Atlas (Merger Sub). Under the terms of the Merger Agreement, at the effective time of the Merger (the Effective Time), Merger Sub merged with and into Seaspan (the Merger), and the separate corporate existence of Merger Sub ceased, with Seaspan continuing as the surviving corporation in the Merger and a direct, wholly owned subsidiary of Atlas.
At the Effective Time, each outstanding Seaspan common share (as defined below) and Seaspan preferred share (as defined below) was canceled, and one Atlas common share (as defined below) and one Atlas preferred share (as defined below) was issued to holders of such canceled Seaspan common share and Seaspan preferred share, as applicable.
In connection with the Reorganization, Seaspan notified the New York Stock Exchange (the NYSE) that the Reorganization had been completed and requested that trading of the following Seaspan shares be suspended prior to the market opening on February 28, 2020: (i) Class A common shares (Seaspan common shares), (ii) 7.95% Cumulative Redeemable Perpetual Preferred Shares Series D (Seaspan Series D Preferred Shares), (iii) 8.25% Cumulative Redeemable Perpetual Preferred Shares Series E (Seaspan Series E Preferred Shares), (iv) 8.20% Cumulative Redeemable Perpetual Preferred Shares Series G (Seaspan Series G Preferred Shares), (v) 7.875% Cumulative Redeemable Perpetual Preferred Shares Series H (Seaspan Series H Preferred Shares), and (vi) Fixed-To-Floating Cumulative Redeemable Perpetual Preferred Shares Series I (Seaspan Series I Preferred Shares and together with Seaspan Series D Preferred Shares, Seaspan Series E Preferred Shares, Seaspan Series G Preferred Shares, and Seaspan Series H Preferred Shares, Seaspan preferred shares). The NYSE is expected to suspend trading of Seaspan common shares and Seaspan preferred shares after the close of business on February 27, 2020 and prior to the market opening on February 28, 2020. In addition, the NYSE has informed Seaspan that it will file with the Securities and Exchange Commission (the SEC) a notification on Form 25 to remove Seaspan common shares and Seaspan preferred shares that had been listed on the NYSE from listing by Seaspan on the NYSE and from registration under Section 12(b) of the Exchange Act.
On February 28, 2020, the following Atlas shares are expected to commence trading on the NYSE under the symbols ATCO, ATCO-PD, ATCO-PE, ATCO-PG, ATCO-PH, and ATCO-PI, respectively: (i) common shares (Atlas common shares), (ii) 7.95% Cumulative Redeemable Perpetual Preferred Shares Series D (Atlas Series D Preferred Shares), (iii) 8.25% Cumulative Redeemable Perpetual Preferred Shares Series E (Atlas Series E Preferred Shares), (iv) 8.20% Cumulative Redeemable Perpetual Preferred Shares Series G (Atlas Series G Preferred Shares), (v) 7.875% Cumulative Redeemable Perpetual Preferred Shares Series H (Atlas Series H Preferred Shares), and (vi) Fixed-To-Floating Cumulative Redeemable Perpetual Preferred Shares Series I (Atlas Series I Preferred Shares and together with Atlas Series D Preferred Shares, Atlas Series E Preferred Shares, Atlas Series G Preferred Shares, and Atlas Series H Preferred Shares, Atlas preferred shares).
Atlas issued a press release announcing the closing of the Reorganization, a copy of which is attached to this Form 6-K as Exhibit 99.5.
Amendments to Articles of Incorporation and Bylaws
On February 27, 2020, Atlas amended and restated its articles of incorporation (Articles of Incorporation) and bylaws (Bylaws) in connection with the closing of the Reorganization. Atlas Articles of incorporation and Bylaws contain provisions substantially similar in all material respects to the articles of incorporation and bylaws of Seaspan in effect immediately prior to the Reorganization, except that following the Effective Time, Atlas articles of incorporation (i) will not contain certain provisions of the Seaspan articles of incorporation that are no longer applicable and (ii) will include a provision stating that Atlas is not prohibited from engaging in a business combination with an interested shareholder if such interested shareholder is Dennis Washington, Copper Lion, Inc. or Fairfax Financial Holdings Limited or any of their affiliates.
The foregoing descriptions of Atlas Articles of Incorporation and Bylaws do not purport to be complete and are qualified in their entirety by reference to the full text of the Articles of Incorporation and Bylaws, which are filed as Exhibits 3.1 and 3.2 hereto, respectively.
In addition, in connection with the Reorganization, Atlas agreed to assume all obligations under Seaspans Stock Incentive Plan and Dividend Reinvestment and Stock Purchase Plan. Attached hereto as Exhibit 4.7 and Exhibit 99.2, respectively, are the Amended and Restated Stock Incentive Plan and Questions and Answers related to the Amended and Restated Dividend Reinvestment and Stock Purchase Plan (DRIP Q&A) adopted by Atlas.
Successor Issuer
At the Effective Time, Atlas became the successor issuer to Seaspan pursuant to Rule 12g-3(a) under the Exchange Act. Pursuant to Rule 12g-3(a) under the Exchange Act, Atlas common shares and Atlas preferred shares, as common shares and preferred shares of the successor issuer, are deemed registered under Section 12(b) of the Exchange Act. Atlas hereby reports this succession in accordance with Rule 12g-3(f) promulgated under the Exchange Act.
The description of Atlas common shares and Atlas preferred shares provided in Exhibit 99.1, the DRIP Q&A provided in Exhibit 99.2, as well as Material United States Federal Income Tax Considerations and Material Non-United States Tax Considerations provided in Exhibit 99.3 and Exhibit 99.4, which are incorporated by reference herein, modify and supersede any prior descriptions of the foregoing matters in any registration statement or report filed with the SEC and are available for incorporation by reference into certain of Atlas filings with the SEC pursuant to the Securities Act of 1933, as amended, the Exchange Act, and the rules and forms promulgated thereunder.
Exhibit Index
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
ATLAS CORP. | ||||||
Date: February 27, 2020 | By: |
/s/ Ryan Courson |
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Ryan Courson | ||||||
Chief Financial Officer |
Exhibit 3.1
STATEMENT TO AMEND AND RESTATE
ARTICLES OF INCORPORATION
OF
ATLAS CORP.
UNDER SECTION 93 OF THE BUSINESS CORPORATIONS ACT
I, Sarah Pybus, Secretary of Atlas Corp. (the Corporation), for the purpose of amending and restating the Articles of Incorporation, as amended, of the Corporation hereby certify:
1. |
The name of the Corporation is: ATLAS CORP. (f/k/a ATLAS Holdings Ltd.). |
2. |
The Articles of Incorporation were filed with the Registrar of Corporations as of the 1st day of October, 2019. |
3. |
Articles of Amendment were filed with the Registrar of Corporations as of the 7th day of October, 2019. The Articles of Amendment were authorized by action of the Board of Directors and the then sole shareholder of the Corporation as required by the Business Corporations Act. |
4. |
The Articles of Incorporation, as amended by the Articles of Amendment, are hereby replaced in their entirety by the Amended and Restated Articles of Incorporation attached hereto. |
5. |
These Amended and Restated Articles of Incorporation were authorized by actions of the Board of Directors and shareholder(s) of the Corporation as required by the Business Corporations Act. |
IN WITNESS WHEREOF, I have executed these Amended and Restated Articles of Incorporation on this 27th day of February, 2020.
ATLAS CORP. | ||
By: |
/s/ Sarah Pybus |
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Sarah Pybus | ||
Secretary |
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
ATLAS CORP.
UNDER SECTION 93 OF THE BUSINESS CORPORATIONS ACT
ARTICLE I
NAME, PURPOSE, POWERS AND DURATION
Section 1.1 Name. The name of the Corporation shall be:
Atlas Corp.
Section 1.2 Purpose. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the Marshall Islands Business Corporations Act (the BCA).
Section 1.3 Powers. The Corporation shall have every power which a corporation now or hereafter organized under the BCA may have.
Section 1.4 Duration. The Corporation shall have a perpetual existence.
ARTICLE II
REGISTERED ADDRESS AND REGISTERED AGENT
The registered address of the Corporation in the Marshall Islands is Trust Company Complex, Ajeltake Road, Ajeltake Island, P.O. Box 1405, Majuro, Marshall Islands MH96960. The name of the Corporations registered agent at such address is The Trust Company of the Marshall Islands, Inc. The Board of Directors of the Corporation may establish branches, offices or agencies in any place in the world and may appoint legal representatives anywhere in the world.
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 five-hundred fifty million (550,000,000), consisting of registered common shares and registered preferred shares.
(a) Number of Common Shares. The Corporation is authorized to issue four hundred million (400,000,000) common shares, each with a par value of one United States cent (US$0.01) (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.
ARTICLE IV
CLASSES AND CHARACTERISTICS OF THE SHARES
Section 4.1 Preferred Shares. The Preferred Shares may be issued from time to time in one or more series. The Board of Directors is hereby vested with authority, with respect to any series of Preferred Shares, to fix by resolution or resolutions the designations and the powers, preferences and relative, participating, optional or other rights and qualifications, limitations or restrictions thereon, including, without limitation, (a) the designation of the series; (b) the number of shares in the series, which the Board of Directors may, except where otherwise provided in the Preferred Shares designation, increase or decrease, but not below the number of shares then outstanding; (c) whether dividends, if any, will be cumulative or non-cumulative and the dividend rate of the series; (d) the dates at which dividends, if any, will be payable; (e) the redemption rights and price or prices, if any, for shares of the series; (f) the terms and amounts of any sinking fund provided for the purchase or redemption of shares of the series; (g) the amounts payable on shares of the series in the event of any voluntary or involuntary liquidation, dissolution or winding-up of the affairs of the Corporation; (h) whether the shares of the series will be convertible into shares of any other class or series, or any other security, of the Corporation or any other corporation, and, if so, the specification of the other class or series or other security, the conversion price or prices or rate or rates, any rate adjustments, the date or dates as of which the shares will be convertible and all other terms and conditions upon which the conversion may be made; (i) restrictions on the issuance of shares of the same series or of any other class or series; and (j) the voting rights, if any, of the holders of the series. In case the number of shares of any series shall be decreased, the shares constituting such decrease shall resume the status of undesignated Preferred Shares.
Except as otherwise required by law, holders of any series of Preferred Shares shall be entitled only to such voting rights, if any, as shall expressly be granted thereto by these Articles of Incorporation (including any statement setting forth a copy of a resolution of the Board of Directors relating to the issuance of such series executed, acknowledged, and filed in accordance with section 5 of the BCA).
Section 4.2 Common Shares.
(a) Voting of Common Shares. Except as otherwise provided by law or otherwise provided herein, each of the Common Shares shall have one vote. Any action to be taken upon a vote of the holders of the Common Shares must be taken at an annual or special meeting of shareholders, provided, however, any vote may be taken without a meeting if a consent in writing, setting forth the action to be taken, is signed by all the shareholders entitled to vote with respect to the subject matter thereof.
(b) Payment of Dividends to Holders of Common Shares. The Board of Directors, in its sole discretion, may determine whether to declare and pay dividends to the shareholders at any time. Subject to the rights of any outstanding Preferred Shares, any dividends that are declared and paid by the Board of Directors with respect to the Common Shares must be declared and paid in accordance with the provisions of this Section. Dividends shall be paid in cash unless the Board of Directors has authorized a distribution in kind. The Board of Directors shall determine the fair market value of any dividend to be paid in kind. Any dividends to be paid in kind (other than in the nature of a stock split) shall then be declared and paid in accordance with the provisions of this Section as if the fair market value were cash.
Section 4.3 Preemptive Rights. No holder of Common Shares of the Corporation shall have any preferential or preemptive rights to subscribe for, purchase or receive any shares of the Corporation of any class, now or hereafter authorized or any options or warrants for such shares, or any rights to subscribe to or purchase such shares, or any securities convertible into or exchangeable for such shares, which may at any time be issued, sold or offered for sale by the Corporation.
ARTICLE V
BOARD OF DIRECTORS
Section 5.1 Directors.
(a) Powers. The management of all the affairs, property and business of the Corporation shall be vested in a Board of Directors (the Board of Directors or Board), who shall have and may exercise all powers except such as are exclusively conferred upon the shareholders by law or by these Amended and Restated Articles of Incorporation.
(b) Number. The number of persons constituting the Board of Directors shall not be less than three (3) or more than eleven (11), as fixed from time to time by the Board of Directors. At each annual meeting of shareholders, each director shall be elected to hold office until the next succeeding annual meeting of shareholders and until such directors successor is elected and has qualified.
(c) Election. Directors shall be elected by a plurality of the votes cast at a meeting by the holders of the Common Shares. Cumulative voting, as defined in Section 71(2) of the BCA, shall not be used to elect directors. Elections of directors need not be by written ballot unless the bylaws of the Corporation shall so provide.
(d) Removal. Notwithstanding any other provisions of these Amended and Restated Articles of Incorporation or the bylaws of the Corporation, any director or the entire Board of Directors of the Corporation may be removed at any time, but only for cause and only by the affirmative vote of the holders of a majority of the outstanding Common Shares entitled to vote in the election of directors cast at a meeting of the shareholders called for that purpose.
(e) Vacancies. Except as otherwise provided in these Amended and Restated Articles of Incorporation, any vacancies in the Board of Directors for any reason, and any newly created directorships resulting from any increase in the number of directors, may be filled by the vote of not less than a majority of the remaining members of the Board of Directors then in office, although less than a quorum, and any directors so chosen shall hold office until the next annual meeting of shareholders and until their successors shall be elected and qualified. No decrease in the number of directors shall shorten the term of any incumbent director.
(f) Outstanding Preferred. Notwithstanding the foregoing, and except as otherwise required by law, whenever the holders of any one or more class or series of Preferred Shares shall have the right, voting as a class, to elect one or more directors of the Corporation, the provisions of paragraphs (b), (c), (d) and (e) shall not apply with respect to the director or directors elected by such holders of Preferred Shares.
(g) Power of the Board of Directors Regarding Bylaws. The Board of Directors has the authority to adopt, amend and repeal the bylaws of the Corporation without a vote of the shareholders. The shareholders shall also have the authority to amend the bylaws of the Corporation by a vote of not less than 66-2/3% of the outstanding Common Shares entitled to vote thereon.
ARTICLE VI
BUSINESS COMBINATIONS WITH INTERESTED SHAREHOLDERS
Section 6.1 Business Combinations.
(a) The Corporation shall not engage in any Business Combination with any Interested Shareholder for a period of three (3) years following the date of the transaction in which the person became an Interested Shareholder, unless:
(i) prior to such date, the Board of Directors approved either the Business Combination or the transaction which resulted in the shareholder becoming an Interested Shareholder;
(ii) upon consummation of the transaction that resulted in the shareholder becoming an Interested Shareholder, the Interested Shareholder owned at least 85% of the Voting Shares of the Corporation outstanding at the time the transaction commenced, excluding for purposes of determining the number of shares outstanding those shares owned (1) by persons who are directors and also officers; and (2) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer;
(iii) at or subsequent to such time, the Business Combination is approved by the Board of Directors and authorized at an annual or special meeting of shareholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding Voting Shares that are not owned by the Interested Shareholder; or
(iv) the Interested Shareholder is Dennis Washington, Copper Lion, Inc. or Fairfax Financial Holdings Limited, or any of their Affiliates, or any person that purchases shares from any of those persons or any of their Affiliates.
(b) The restrictions contained in this section shall not apply if:
(i) a shareholder becomes an Interested Shareholder inadvertently and (1) as soon as practicable divests itself of ownership of sufficient shares so that the shareholder ceases to be an Interested Shareholder; and (2) would not, at any time within the three-year period immediately prior to a Business Combination between the Corporation and such shareholder, have been an Interested Shareholder but for the inadvertent acquisition of ownership; or
(ii) the Business Combination is proposed prior to the consummation or abandonment of, and subsequent to the earlier of the public announcement or the notice required hereunder of, a proposed transaction, which (A) constitutes one of the transactions described in the following sentence; (B) is with or by a person who either was not an Interested Shareholder during the previous three (3) years or who became an Interested Shareholder with the approval of the Board; and (C) is approved or not opposed by a majority of the members of the Board then in office (but not less than one) who were directors prior to any person becoming an Interested Shareholder during the previous three (3) years or were recommended for election or elected to succeed such directors by a majority of such directors. The proposed transactions referred to in the preceding sentence are limited to:
(A) a merger or consolidation of the Corporation (except for a merger in respect of which, pursuant to the BCA, no vote of the shareholders of the Corporation is required);
(B) a sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions), whether as part of a dissolution or otherwise, of assets of the Corporation or of any direct or indirect majority-owned subsidiary of the Corporation (other than to any direct or indirect wholly owned subsidiary or to the Corporation) having an aggregate market value equal to 50% or more of either that aggregate market value of all of the assets of the Corporation determined on a consolidated basis or the aggregate market value of all the outstanding shares of the Corporation; or
(C) a proposed tender or exchange offer for 50% or more of the outstanding Voting Shares of the Corporation. The Corporation shall give not less than twenty (20) days notice to all Interested Shareholders prior to the consummation of any of the transactions described in clause (A) or (B) of the second sentence of this Section 6.1(b)(ii).
(c) Definitions. For the purpose of this Article VI only, the term:
(i) Affiliate. Affiliate means a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, another person.
(ii) Associate. Associate, when used to indicate a relationship with any person, means: (1) any corporation, partnership, unincorporated association or other entity of which such person is a director, officer or partner or is, directly or indirectly, the owner of 20% or more of any class of Voting Shares; (2) any trust or other estate in which such person has at least a 20% beneficial interest or as to which such person serves as trustee or in a similar fiduciary capacity; and (3) any relative or spouse of such person, or any relative of such spouse, who has the same residence as such person.
(iii) Business Combination. Business Combination, when used in reference to the Corporation and any Interested Shareholder of the Corporation, means:
(A) any merger or consolidation of the Corporation or any direct or indirect majority-owned subsidiary of the Corporation with (1) the Interested Shareholder or any of its Affiliates; or (2) with any other corporation, partnership, unincorporated association or other entity if the merger or consolidation is caused by the Interested Shareholder;
(B) any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions), except proportionately as a shareholder of the Corporation, to or with the Interested Shareholder, whether as part of a dissolution or otherwise, of assets of the Corporation or of any direct or indirect majority-owned subsidiary of the Corporation which assets have an aggregate market value equal to 10% or more of either the aggregate market value of all the assets of the Corporation determined on a consolidated basis or the aggregate market value of all the outstanding shares of the Corporation;
(C) any transaction that results in the issuance or transfer by the Corporation or by any direct or indirect majority-owned subsidiary of the Corporation of any shares of the Corporation, or any share of such subsidiary, to the Interested Shareholder, except: (1) pursuant to the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into shares of the Corporation, or shares of any such subsidiary, which securities were outstanding prior to the time that the Interested Shareholder became such; (2) pursuant to a merger with a direct or indirect wholly owned subsidiary of the Corporation solely for purposes of forming a holding company; (3) pursuant to a dividend or distribution paid or made, or the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into shares of the Corporation, or shares of any such subsidiary, which security is distributed, pro rata to all holders of a class or series of shares subsequent to the time the Interested Shareholder became such; (4) pursuant to an exchange offer by the Corporation to purchase shares made on the same terms to all holders of said shares; or (5) any issuance or transfer of shares by the Corporation; provided, however, that in no case under items (3)-(5) of this subparagraph (C), shall there be an increase in the Interested Shareholders proportionate share of the any class or series of shares of the Corporation;
(D) any transaction involving the Corporation or any direct or indirect majority-owned subsidiary of the Corporation that has the effect, directly or indirectly, of increasing the proportionate share of any class or series of shares, or securities convertible into any class or series of shares, or shares of any such subsidiary, or securities convertible into such shares of the Corporation, which is owned by the Interested Shareholder, except as a result of immaterial changes due to fractional share adjustments or as a result of any purchase or redemption of any shares not caused, directly or indirectly, by the Interested Shareholder; or
(E) any receipt by the Interested Shareholder of the benefit, directly or indirectly (except proportionately as a shareholder of the Corporation), of any loans, advances, guarantees, pledges or other financial benefits (other than those expressly permitted in subparagraphs (A)-(D) of this Section 6.1(c)) provided by or through the Corporation or any direct or indirect majority-owned subsidiary.
(iv) Control. Control, including the terms controlling, controlled by and under common control with, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of Voting Shares, by contract or otherwise. A person who is the owner of 20% or more of the outstanding Voting Shares of any corporation, partnership, unincorporated association or other entity shall be presumed to have control of such entity, in the absence of proof by a preponderance of the evidence to the contrary. Notwithstanding the foregoing, a presumption of control shall not apply where such person holds Voting Shares, in good faith and not for the purpose of circumventing this provision, as an agent, bank, broker, nominee, custodian or trustee for one or more owners who do not individually or as a group have control of such entity.
(v) Interested Shareholder. Interested Shareholder means any person (other than the Corporation and any direct or indirect majority-owned subsidiary of the Corporation), that (1) is the owner of 15% or more of the outstanding Voting Shares of the Corporation; or (2) is an affiliate or associate of the Corporation and was the owner of 15% or more of the outstanding Voting Shares of the Corporation at any time within the three-year period immediately prior to the date on which it is sought to be determined whether such person is an Interested Shareholder; or (3) the affiliates and associates of any person listed in clauses (1) and (2) above; provided, however, that the term Interested Shareholder shall not include any Person whose ownership of shares in excess of the 15% limitation set forth herein is the result of action taken solely by the Corporation; provided, that such Person shall be an Interested Shareholder if thereafter such Person acquires additional shares of Voting Shares of the Corporation, except as a result of further action by the Corporation not caused, directly or indirectly, by such person. For the purpose of determining whether a Person is an Interested Shareholder, the Voting Shares of the Corporation deemed to be outstanding shall include Voting Shares deemed to be owned by the Person through application of Section 6.1(c)(viii) below, but shall not include any other unissued shares which may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise.
(vi) Person. Person means any individual, corporation, partnership, unincorporated association or other entity.
(vii) Voting Shares. Voting Shares means, with respect to any corporation, shares of any class or series entitled to vote generally in the election of directors and, with respect to any entity that is not a corporation, any equity interest entitled to vote generally in the election of the governing body of such entity.
(viii) Owner. Owner, including the terms own and owned, when used with respect to any shares, means a person that individually or with or through any of its affiliates or associates:
(A) beneficially owns such shares, directly or indirectly;
(B) has (1) the right to acquire such shares (whether such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding, or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise; provided, however, that a person shall not be deemed the owner of shares tendered pursuant to a tender or exchange offer made by such person or any of such persons affiliates or associates until such tendered shares is accepted for purchase or exchange; or (2) the right to vote such shares pursuant to any agreement, arrangement or understanding; provided, however, that a person shall not be deemed the owner of any shares because of such persons right to vote such shares if the agreement, arrangement or understanding to vote such shares arises solely from a revocable proxy or consent given in response to a proxy or consent solicitation made to ten (10) or more persons; or
(C) has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting (except voting pursuant to a revocable proxy or consent as described in item (2) of subparagraph (B) of this paragraph (viii)), or disposing of such shares with any other person that beneficially owns, or whose affiliates or associates beneficially own, directly or indirectly, such shares.
ARTICLE VII
LIMITATION ON DIRECTOR LIABILITY AND INDEMNIFICATION
Section 7.1 Limitation of Director Liability. To the fullest extent permitted by the BCA as the same exists or may hereafter be amended, a director of the Corporation shall not be personally liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director.
Section 7.2 Indemnification. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, including in an action by or in the right of the Corporation, by reason of the fact he is or was a director or officer of the Corporation or is or was serving at the request of the Corporation, as a director or officer of another corporation, partnership, joint venture, trust or other enterprise (the Indemnitee), against expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding unless a final and unappealable determination by a court of competent jurisdiction has been made that he did not act in good faith or in a manner he did not reasonably believe to be in or not opposed to the best interest of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of no contest, or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.
The purpose of this provision is to fully indemnify the Indemnitee to the fullest extent permitted by Section 60 of the BCA or any successor statute.
Section 7.3 Expenses Payable in Advance. The right to be indemnified shall include, without limitation, the right of an Indemnitee to be paid expenses in advance of the final disposition of any proceeding upon receipt of an undertaking to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified hereunder.
The purpose of this provision is to advance funds to the fullest extent permitted by Section 60 of the BCA or any successor statute.
Section 7.4 Expenses of Enforcement. An Indemnitee shall also be paid reasonable costs, expenses and attorneys fees (including expenses) in connection with the enforcement of rights to the indemnification granted hereunder.
Section 7.5 Non-exclusivity of Rights. The rights of indemnification shall not be exclusive of any other rights to which an Indemnitee may be entitled and shall not be limited by the provisions of Section 60 of the BCA or any successor statute.
Section 7.6 Insurance. The Corporation shall have the power to purchase and maintain insurance on behalf of any person who is or was a director of officer of the Corporation or serving in such capacity in another corporation at the request of the Corporation against any liability asserted against such person and incurred by such person in such capacity whether or not the Corporation would have the power to indemnify such person against such liability by law or under the provisions of these Amended and Restated Articles of Incorporation.
Section 7.7 Other Action. The Board of Directors may take such action as it deems necessary or desirable to carry out the provisions set forth in this Article VII, including adopting procedures for determining and enforcing the rights guaranteed hereunder, and the Board of Directors is expressly empowered to adopt, approve and amend from time to time such bylaws, resolutions or contracts implementing such provisions or such further indemnification arrangement as may be permitted by law.
Section 7.8 Amendment or Repeal of Article VII. Neither the amendment or repeal of this Article VII, nor the adoption of any provision of these Amended and Restated Articles of Incorporation inconsistent with this Article VII, shall eliminate or reduce any right to indemnification afforded by this Article VII to any person with respect to their status or any activities in their official capacities prior to such amendment, repeal or adoption.
Section 7.9 Amendment of BCA. If the BCA is amended after the date of the filing of these Articles of Incorporation to authorize corporate action further eliminating or limiting the personal liability of directors or permitting indemnification to a fuller extent, then the liability of a director of the Corporation shall be eliminated or limited, and indemnification shall be extended, in each case to the fullest extent permitted by the BCA, as so amended from time to time. No repeal or modification of this Section 7.9 by the shareholders shall adversely affect any right or protection of a director of the Corporation existing by virtue of this Section 7.9 at the time of such repeal or modification.
ARTICLE VIII
AMENDMENTS
Except as otherwise provided by law, any provision herein requiring a vote of shareholders may only be amended by such a vote. Further, except as otherwise provided by law, Articles V, VI, VII and VIII may only be amended by a vote of at least 66-2/3% of the outstanding Common Shares.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Adoption. These Amended and Restated Articles of Incorporation were duly adopted in accordance with Section 93 of the BCA.
Section 9.2 Authorization. These Amended and Restated Articles of Incorporation were authorized by action of the shareholder(s) of the Corporation.
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IN WITNESS WHEREOF, I have executed these Amended and Restated Articles of Incorporation on this 27th day of February, 2020.
ATLAS CORP. | ||
By: |
/s/ Sarah Pybus |
|
Sarah Pybus | ||
Secretary |
[Amended and Restated Articles of Incorporation Signature Page]
Exhibit 3.2
AMENDED AND RESTATED BYLAWS
OF
ATLAS CORP.
ARTICLE I
OFFICES
Section 1.1 Registered Office. The registered office of the Corporation in the Marshall Islands is Trust Company Complex, Ajeltake Road, Ajeltake Island, P.O. Box 1405, Majuro, Marshall Islands MH 96960.
Section 1.2 Other Offices. The Corporation may also have an office or offices at such other place or places as the Corporations Board of Directors (the Board of Directors or the Board) may from time to time determine or the business of the Corporation may require.
ARTICLE II
SHAREHOLDER MEETINGS
Section 2.1 Place of Meetings. Meetings of the shareholders of the Corporation for any purpose shall be held at such time and place, either within or without the Republic of the Marshall Islands, as shall be designated from time to time by the Board of Directors.
Section 2.2 Annual Meeting. The annual meeting of shareholders of the Corporation shall be held on such day and at such time and place within or without the Republic of the Marshall Islands as the Board of Directors may determine for the purpose of electing directors and/or transacting any other proper business. The Chairman of the Board or, if applicable, the longest-serving Co-Chairman of the Board in attendance or, in the absence of the Chairman or any Co-Chairman, another person designated by the Board, shall act as Chairman of all annual meetings of shareholders.
Section 2.3 Nature of Business at Annual Meeting of Shareholders. No business may be transacted at an annual meeting of shareholders, other than business that is either (a) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors (or any duly authorized committee thereof); (b) otherwise properly brought before the annual meeting by or at the direction of the Board of Directors (or any duly authorized committee thereof); or (c) otherwise properly brought before the annual meeting by any shareholder of the Corporation (i) who is a shareholder of record on the date of the giving of the notice provided for in Section 2.6 of this Article II and has remained a shareholder of record through the record date for the determination of shareholders entitled to vote at such annual meeting, and (ii) who complies with the notice procedures set forth in Section 2.5 of this Article II.
In addition to any other applicable requirements, for business to be properly brought before an annual meeting by a shareholder, such shareholder must have given timely notice thereof in proper written form as set forth in Section 2.6 of this Article II to the Secretary of the Corporation (the Secretary).
No business shall be conducted at the annual meeting of shareholders except business brought before the annual meeting in accordance with the procedures set forth in this Article II, provided, however, that, once business has been properly brought before the annual meeting in accordance with such procedures, nothing in this Article II shall be deemed to preclude discussion by any shareholder of any such business. If the Chairman of an annual meeting determines that business was not properly brought before the annual meeting in accordance with the foregoing procedures, the Chairman of the meeting shall declare to the meeting that the business was not properly brought before the meeting and such business shall not be transacted.
Section 2.4 Special Meetings. Unless otherwise required by law or the Corporations Articles of Incorporation (the Articles of Incorporation), special meetings of the shareholders, for any purpose or purposes may be called only by (a) the Chairman of the Board or, if applicable, the longest-serving Co-Chairman of the Board, (b) written notice to the Board of Directors by any two members of the Executive Committee or (c) a resolution of the Board of Directors. No other person or persons are permitted to call a special meeting, unless otherwise prescribed by law. No business may be conducted at the special meeting other than business brought before the meeting by the Board and specified in the notice. The Chairman or, if applicable, the longest-serving Co-Chairman in attendance, or in the absence of the Chairman or, if applicable, any Co-Chairman, another person designated by the Board, shall act as the Chairman of all special meetings of the shareholders. If the Chairman of the special meeting determines that business was not properly brought before the special meeting in accordance with this Article II, the Chairman shall declare to the meeting that the business was not properly brought before the meeting and such business shall not be transacted.
Section 2.5 Shareholder Notice. To be timely, a shareholders notice to the Secretary of the Corporation must be delivered to or mailed and received at the principal executive offices of the Corporation not less than ninety (90) days nor more than one-hundred twenty (120) days prior to the first anniversary date of the date on which the Corporation first mailed its proxy materials for the previous years annual meeting of shareholders.
To be in proper written form, a shareholders notice to the Secretary must set forth as to each matter such shareholder proposes to bring before the annual meeting (i) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (ii) the name and record address of such shareholder, (iii) the class or series and number of shares of the Corporation that are beneficially owned or of record by such shareholder, (iv) a description of all arrangements or understandings between such shareholder and any other person or persons (including their names) in connection with the proposal of such business by such shareholder and any material interest of such shareholder in such business, and (v) a representation that such shareholder intends to appear in person or by proxy at the annual meeting to bring such business before the meeting. In addition, notwithstanding anything in this Article II to the contrary, a shareholder intending to nominate one or more persons for election as a director at an annual meeting must comply with Section 3.4 of these Bylaws for such nomination or nominations to be properly brought before such meeting.
Section 2.6 Notice of Meetings. Unless otherwise required by law or the Articles of Incorporation, notice of every annual and special meeting of shareholders shall state the date, hour, place and purpose of such meeting, and in the case of special meetings, shall also include the name of the person or persons at whose direction the notice is being issued, and shall be given personally or sent by mail, telegraph, cablegram, telex or teleprinter at least fifteen (15) but not more than sixty (60) days before such meeting, to each shareholder of record entitled to vote thereat and to each shareholder of record who, by reason of any action proposed at such meeting would be entitled to have his shares appraised if such action were taken, and the notice shall include a statement of that purpose and to that effect. If mailed, notice shall be deemed to have been given when deposited in the mail, directed to the shareholder at his address as the same appears on the record of shareholders of the Corporation or at such address as to which the shareholder has given notice to the Secretary. Without limiting the manner by which notice otherwise may be given effectively to shareholders, any notice to shareholders may be given by mail, facsimile or electronic transmission to his last known address or facsimile number or by any other form of electronic transmission in the manner now or hereafter provided in Section 65 of the Marshall Islands Business Corporations Act (the BCA) or any other applicable provision of the BCA.
Section 2.7 Waiver of Notice. A written waiver of any notice, signed by a shareholder or director, or waiver by electronic transmission by such person, whether given before or after the time of the event for which notice is to be given, shall be deemed equivalent to the notice required to be given to such person. Neither the business nor the purpose of any meeting need be specified in such a waiver. Attendance at any meeting shall constitute waiver of notice except attendance for the sole purpose of protesting prior to the conclusion of the meeting the lack of notice of such meeting.
Section 2.8 Shareholder List. The Secretary shall prepare, certify and make a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order with the address of and the number of voting shares registered in the name of each. Such list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any shareholder who is present.
Section 2.9 Quorum. Unless otherwise required by law or the Articles of Incorporation, at all meetings of shareholders there must be present either in person or by proxy shareholders of record holding at least a majority of the shares of the Corporation issued and outstanding and entitled to vote at such meetings in order to constitute a quorum, but if less than a quorum is present, a majority of those shares present either in person or by proxy shall have power to adjourn any meeting until a quorum shall be present.
Section 2.10 Adjournments. Any meeting of shareholders, annual or special, may be adjourned from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Corporation may transact any business that may have been transacted at the original meeting. If the meeting is adjourned for lack of quorum, notice of the new meeting shall be given to each shareholder of record entitled to vote at the meeting. If the adjournment is for more than thirty (30) days, or if after an adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each shareholder of record on the new record date entitled to notice in Section 2.6 of this Article II.
Section 2.11 Vote Required. At any meeting of shareholders at which a quorum is present, all matters shall be decided by a majority of the votes cast by the shareholders present in person or by proxy and entitled to vote, unless the matter is one for which, by express provision of statute, of the Articles of Incorporation or of these Bylaws, a different vote is required, in which case such express provision shall govern and control the determination of such matter.
Section 2.12 Voting. Except as otherwise provided by the Articles of Incorporation, every shareholder shall have one vote for each share registered in his name. Each shareholder may exercise such voting right either in person or by proxy, provided, however, that no proxy shall be valid after the expiration of eleven (11) months from the date such proxy was authorized unless otherwise provided in the proxy. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in the law of the Marshall Islands to support an irrevocable power. A shareholder may revoke any proxy that is not irrevocable by attending the meeting and voting in person or by filing an instrument in writing revoking the proxy or another duly executed proxy bearing a later date with the Secretary of the Corporation.
Section 2.13 Action by Shareholders Without a Meeting. Any action required or permitted to be taken by the shareholders of the Corporation, or any action which may be taken at a meeting of the shareholders, may be taken without a meeting if a consent in writing, setting forth the action so taken, is signed by all the shareholders entitled to vote with respect to the subject matter thereof. Such consent shall have the same effect as a unanimous vote of shareholders, and may be stated as such in any articles or documents filed with a Registrar of Corporations.
The consent shall be delivered to the Corporation by delivery to its registered office in the Marshall Islands, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of shareholders are recorded. Delivery made to the Corporations registered office shall be made by hand or by certified or registered mail, return receipt requested.
Section 2.14 Fixing of Record Date. In order that the Corporation may determine the shareholders entitled to notice of or to vote at any meeting of the shareholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than sixty (60) nor less than fifteen
(15) days prior to the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining shareholders entitled to notice of or to vote at a meeting of the shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of shareholders of record entitled to notice of or to vote at a meeting of the shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
ARTICLE III
DIRECTORS
Section 3.1 Powers. The Board of Directors shall have the powers set forth in the Articles of Incorporation.
Section 3.2 Number. The number of persons constituting the Board of Directors shall be as set forth in the Articles of Incorporation.
Section 3.3 Election. Directors shall be elected in the manner set forth in the Articles of Incorporation.
Section 3.4 Nomination of Directors. Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors of the Corporation, except as may be otherwise provided in the Articles of Incorporation with respect to the right of holders of preferred shares of the Corporation to nominate and elect a specified number of directors in certain circumstances. Nominations of persons for election to the Board of Directors may be made at any annual meeting of shareholders (a) by or at the direction of the Board of Directors (or any duly authorized committee thereof) or (b) by any shareholders of the Corporation (i) who is a shareholder of record on the date of the giving of the notice provided for in this Section 3.4 and on the record date for the determination of shareholder entitled to vote at such meeting and (ii) who complies with the notice procedures set forth in this Section 3.4.
In addition to any other applicable requirements, for a nomination to be made by a shareholder, such shareholder must have given timely notice thereof in proper written form to the Secretary of the Corporation.
To be timely, a shareholders notice to the Secretary must be delivered to or mailed and received at the principal executive offices of the Corporation not less than ninety (90) days nor more than one-hundred twenty (120) days prior to the anniversary date of the immediately preceding annual meeting of shareholders.
To be in proper written form, a shareholders notice to the Secretary must set forth; (a) as to each person whom the shareholder proposes to nominate for election as a director (i) the name, age, business address and residence address of the person, (ii) the principal occupation or employment of the person, (iii) the class or series and number of shares of the Corporation which are owned beneficially or of record by the person and (iv) any other information relating to the person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the United States Securities Exchange Act of 1934, as amended (the Exchange Act), and the rules and regulations promulgated thereunder applicable to issuers that are not foreign private issuers and (b) as to the shareholder giving the notice (i) the name and record address of such shareholder, (ii) the class or series and number of shares of the Corporation which are owned beneficially and of record by such shareholder, (iii) a description of all arrangements or understandings between such shareholder and each proposed nominee and any other person and persons (including their names) pursuant to which the nomination(s) are to be made by such shareholder, (iv) a representation that such shareholder intends to appear in person or by proxy at the meeting to nominate the person or persons named in its notice and (v) any other information relating to such shareholder that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors of companies other than foreign private issuers pursuant to
Section 14 of the Exchange Act and the rules and regulations promulgated thereunder. Such notice must be accompanied by a written consent of each proposed nominee to being named as a nominee and to serve as a director if elected.
No person shall be eligible for election as a director of the Corporation unless nominated in accordance with the procedures set forth in this Section 3.4. If the Chairman of the meeting determines that a nomination was not made in accordance with the foregoing procedures, the Chairman shall declare to the meeting that the nomination was defective and such defective nomination shall be disregarded.
Section 3.5 Resignations. Any director of the Corporation may resign at any time, by giving notice in writing or by electronic transmission to the Board, the Chairman of the Board or, if applicable, the Co-Chairmen of the Board, the Chief Executive Officer or the Secretary of the Corporation. Such resignation shall take effect after receipt of the applicable notice of resignation by the Board, the Chairman or Co-Chairmen of the Board, the Chief Executive Officer or the Secretary of the Corporation at the time specified in such notice or, if no time is specified, immediately upon receipt of such notice by the Board, the Chairman of the Board or, if applicable, the Co-Chairmen of the Board, the Chief Executive Officer or the Secretary of the Corporation. Unless otherwise specified in such notice, the acceptance of such resignation shall not be necessary to make it effective.
Section 3.6 Removal. Directors shall be removed in the manner set forth in the Articles of Incorporation.
Section 3.7 Vacancies. Vacancies shall be filled in the manner set forth in the Articles of Incorporation.
Section 3.8 Chairman of the Board. The directors shall elect one of their members to be Chairman of the Board and may elect Co-Chairmen of the Board. The Chairman of the Board or, if applicable, Co-Chairmen of the Board shall perform such duties as may from time to time be assigned by the Board. The Chairman or, if applicable, Co-Chairmen of the Board shall be subject to the control of and may be removed from such office by the Board.
Section 3.9 Annual Meetings. The Board of Directors shall meet for the election of officers and the transaction of other business as soon as practicable after each annual meeting of the shareholders, and/or at such time and place as specified in the notice for the meeting. No notice of such meeting shall be necessary to the directors in order legally to constitute the meeting, provided a quorum shall be present. In the event such meeting is not so held, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the Board of Directors.
Section 3.10 Regular Meetings. Regular meetings of the Board of Directors may be held without notice at such time and place, within or without the Republic of the Marshall Islands, as shall from time to time be determined by Board of Directors resolution or by consent in writing of all the directors.
Section 3.11 Special Meetings. Special meetings of the Board of Directors may be called only by the Chairman of the Board or, if applicable, either Co-Chairmen of the Board, by any two members of the Executive Committee, or by directors representing a majority of the Board of Directors. Special meetings of the board of directors shall be held at the time and place, in or outside the Republic of the Marshall Islands, specified in the notices thereof.
Section 3.12 Notice of Special Meeting. Notice of the date, time and place of each special meeting of the Board of Directors shall be given to each director at least forty-eight (48) hours prior to such meeting, unless the notice is given orally or delivered in person, in which case it shall be given at least twenty-four (24) hours prior to such meeting. For the purpose of this section, notice shall be deemed to be duly given to a director if given to him personally (including by telephone) or if such notice be delivered to such director by mail, facsimile or electronic transmission to his last known address or facsimile number. Notice of a meeting need not be given to any director who submits a signed waiver of notice, whether before or after the meeting, or who attends the meeting without protesting, prior to the conclusion thereof, the lack of notice to him.
Section 3.13 Quorum. At all meetings of the Board of Directors, a majority of the directors at the time in office, present in person or by conference telephone, shall constitute a quorum for the transaction of business. If a quorum shall not be present at any meeting of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
Section 3.14 Organization. Meetings shall be presided over by the Chairman of the Board or, if applicable, the longest-serving Co-Chairmen of the Board in attendance, or in the absence of the Chairman or any Co-Chairman of the Board, by such other person as the directors may select. The Board shall keep written minutes of its meetings. The Secretary of the Corporation shall act as Secretary of the meeting, but in the absence of the Secretary, the Chairman of the meeting may appoint any person to act as Secretary of the meeting.
Section 3.15 Voting. Except as otherwise provided by applicable law, the Articles of Incorporation or these Bylaws, all matters presented to the Board (or a committee thereof) shall be approved by a vote of the majority of the directors, present in person or by conference telephone, at any meeting of the Board (or such committee) at which a quorum is present.
Section 3.16 Action By Directors Without a Meeting. Unless otherwise restricted by the Articles of Incorporation or these Bylaws, whenever the vote of the directors at a meeting thereof is required or permitted to be taken in connection with any corporate action by any provisions of the statutes or of the Articles of Incorporation or of these Bylaws, the meeting and vote of the directors may be dispensed with if all the directors who would be entitled to vote upon the action, if such meeting were held, shall consent in writing to such corporate action being taken.
Section 3.17 Directors Meeting by Conference Telephone. Any one or more members of the Board of Directors or of any committee thereof may participate in a meeting of such Board of Directors or committee, as the case may be, by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other. Participation by such means shall constitute presence in person at a meeting.
Section 3.18 Compensation. The Board of Directors shall have the authority to fix the compensation of directors for their services. A director may also serve the Corporation in other capacities and receive compensation therefor.
Section 3.19 Interested Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or her or their votes are counted for such purpose, if: (i) the material facts as to his or her relationship or interest and as to the contract or transaction are disclosed or are known to the Board or the committee and the Board or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, or, if the votes of the disinterested directors are insufficient to constitute an act of the Board of Directors as defined in Section 55 of the BCA, by unanimous vote of the disinterested directors; or (ii) the material facts as to his or her relationship or interest and as to the shareholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the shareholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board, a committee thereof or the shareholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board or of a committee which authorizes the contract or transaction.
ARTICLE IV
COMMITTEES
Section 4.1 Constitution and Powers. Except as otherwise provided by applicable law, the Articles of Incorporation or these Bylaws, the Board may, by resolution adopted by a majority of the Board, designate one or more committees (in addition to the mandatory Standing Committees set forth in Section 4.2). Each committee shall consist of one or more directors of the Corporation and the composition of each such other committee shall be in compliance with the applicable Requirements. With respect to all Board Committees (including Standing Committees), the Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of any such committee. With respect to all Board Committees (including Standing Committees), in the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not such members or members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any absent or disqualified member. Any committee (including any Standing Committee), to the extent permitted by law (including the Requirements) and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers that may require it. Each committee (including each Standing Committee) shall keep regular minutes and report to the Board of Directors when required.
Section 4.2 Standing Committees. The Board of Directors shall have the following standing committees: (a) an Audit Committee, (b) a Compensation and Governance Committee and (c) an Executive Committee (together, the Standing Committees), and such other committees as may be required from time to time by the stock exchange listing requirements (the Requirements). The Audit Committee and the Compensation and Governance Committee (and such other Standing Committee as may be mandated by the Requirements) shall be composed entirely of independent directors within the meaning of the Requirements applicable to such committee. Except as may be required by the Requirements, each Standing Committee shall consist of three (3) (or such greater number as the Board of Directors may designate) directors, and the composition of each such Standing Committee shall be in compliance with the applicable Requirements, if any. Each Standing Committee shall have a written charter, which shall be approved by the Board of Directors and state the purpose and authority of such committee. Standing Committee charters shall be reviewed annually to reflect the activities of the respective committees, changes in applicable Requirements and other relevant considerations, and proposed revisions to such charters shall be approved by the Board of Directors; provided, however, that any amendments to the charters of any Standing Committee shall require the affirmative vote of at least 75% of the total directors then constituting the Board of Directors at any meeting of the Board at which a quorum is present.
ARTICLE V
OFFICERS
Section 5.1 Officers. The Board shall elect a Chairman of the Board, a Chief Executive Officer, a Chief Financial Officer and a Secretary. The Chairman and, if applicable, any Co-Chairmen of the Board and the Chief Executive Officer shall be or become Directors. The Board may elect from time to time such other officers as, in the opinion of the Board, are desirable for the conduct of the business of the Corporation. Any two or more offices may be held by the same person unless otherwise prohibited by law, the Articles of Incorporation or these Bylaws; and provided, however, that no officer shall execute, acknowledge or verify any instrument in more than one capacity if such instrument is required by law, the Articles of Incorporation of the Corporation or these Bylaws to be executed, acknowledged or verified by two or more officers.
Section 5.2 Chairman of the Board. The Chairman of the Board, if there be one, shall preside at all meetings of the shareholders and of the Board. If Co-Chairmen are elected by the Board, the longest-serving Co-Chairman in attendance at a meetings of the shareholders or the Board shall preside at such meeting. The
Chairman and, if applicable, either Co-Chairmen of the Board may enter into and execute in the name of the Corporation powers of attorney, contracts, bonds and other obligations which implement policies established by the Board. In addition, the Chairman and, if applicable, the Co-Chairmen of the Board shall perform such other duties as may from time to time be assigned by the Board. The Chairman and, if applicable, any Co-Chairman of the Board may or may not be a senior officer of the Corporation. Neither the Chairman nor, if applicable, any Co-Chairman of the Board shall be an executive director, unless so specified by his appointment to an additional office within the Corporation.
Section 5.3 Chief Executive Officer. The Chief Executive officer shall have supervisory authority over the business, affairs and property of the Corporation, and over the activities of the executive officers of the Corporation. The Chief Executive Officer may enter into and execute in the name of the Corporation, powers of attorney, contracts, bonds and other obligations which implement policies established by the Board. The Chief Executive Officer shall have all authority incident to the office of Chief Executive Officer, shall have such other authority and perform such other duties as may from time to time be assigned by the Board and shall report directly to the Board. If so elected by the Board, the Chairman or any Co-Chairman of the Board may be the Chief Executive Officer.
Section 5.4 Chief Financial Officer. The Chief Financial Officer shall be the principal financial officer of the Corporation and shall have such powers and perform such duties as may from time to time be assigned by the Chief Executive Officer or the Board. Without limiting the generality of the foregoing, the Chief Financial Officer may sign and execute contracts and other obligations pertaining to the regular course of his or her duties which implement policies established by the Board.
Section 5.5 Chief Operating Officer. The Chief Operating Officer, if elected, shall have general supervision of the daily business, affairs and property of the Corporation. The Chief Operating Officer shall have all authority incident to the office of Chief Operating Officer, and shall have such other authority and perform such other duties as may from time to time be assigned by the Chief Executive Officer or the Board.
Section 5.6 Vice Presidents. The Vice Presidents, if elected, shall have such powers and shall perform such duties as may from time to time be assigned to them by the Chief Executive Officer or the Board. Without limiting the generality of the foregoing, Vice Presidents may enter into and execute in the name of the Corporation contracts and other obligations pertaining to the regular course of their duties which implement policies established by the Board.
Section 5.7 Treasurer. If elected, the Treasurer shall, if required by the Chief Executive Officer or the Board, give a bond for the faithful discharge of duties, in such sum and with such sureties as may be so required. Unless the Board otherwise declares by resolution, the Treasurer shall have custody of, and be responsible for, all funds and securities of the Corporation; receive and give receipts for money due and payable to the Corporation from any source whatsoever; deposit all such money in the name of the Corporation in such banks, trust companies or other depositories as the Board may designate; against proper vouchers, cause such funds to be disbursed by check or draft on the authorized depositories of the Corporation signed in such manner as shall be determined by the Board, and be responsible for the accuracy of the amounts of all funds so disbursed; regularly enter or cause to be entered in books to be kept by the Treasurer or under the Treasurers direction, full and adequate accounts of all money received and paid by the Treasurer for the account of the Corporation; render to the Board, any duly authorized committee of the Board of Directors or the Chief Executive Officer, whenever they or any of them, respectively, shall require the Treasurer to do so, an account of the financial condition of the Corporation and of all transactions of the Treasurer; and, in general, have all authority incident to the office of Treasurer and such other authority and perform such other duties as may from time to time be assigned by the Chief Executive Officer or the Board. Any Assistant Treasurer shall, in the absence or disability of the Treasurer, perform the duties and exercise the powers of the Treasurer and shall have such other duties and have such other powers as the Board may from time to time prescribe.
Section 5.8 Controller. If elected, the Controller shall be the chief accounting officer of the Corporation. The Controller shall, when requested, counsel with and advise the other officers of the Corporation and shall perform such other duties as may from time to time be assigned by the Chief Executive Officer, or the Chief Financial Officer of the Board.
Section 5.9 Secretary. The Secretary shall act as Secretary of all meetings of the shareholders and of the Board; shall keep the minutes thereof in the proper book or books to be provided for that purpose; shall see that all notices required to be given by the Corporation in connection with meetings of shareholders and of the Board are duly given; shall be the custodian of the seal of the Corporation and shall affix the seal or cause it or a facsimile thereof to be affixed to all certificates for stock of the Corporation and to all documents or instruments requiring the same, the execution of which on behalf of the Corporation is duly authorized in accordance with the provisions of these Bylaws; shall have charge of the stock records and also of the other books, records and papers of the Corporation relating to its organization and acts as a corporation, and shall see that the reports, statements and other documents related thereto required by law are properly kept and filed, all of which shall, at all reasonable times, be open to the examination of any director for a purpose reasonably related to such directors position as a director; and shall, in general, have all authority incident to the office of Secretary and such other authority and perform such other duties as may from time to time be assigned by the Chief Executive Officer or the Board.
Section 5.10 Assistant Treasurers, Assistant Controllers and Assistant Secretaries. Any Assistant Treasurers, Assistant Controllers and Assistant Secretaries, if elected, shall perform such duties as from time to time shall be assigned to them by the Chief Executive Officer or the Board or by the Treasurer, Controller, if any, or Secretary, respectively. An Assistant Treasurer, Assistant Controller or Assistant Secretary need not be an officer of the Corporation and shall not be deemed an officer of the Corporation unless elected by the Board.
Section 5.11 Removal. Any officer may be removed, either with or without cause, by the Board at any meeting thereof or by any superior officer upon whom such power may be conferred by the Board.
Section 5.12 Resignation. Any officer may resign at any time by giving notice to the Board, the Chairman or, if applicable, the Chairmen of the Board, the Chief Executive Officer or the Secretary of the Corporation in writing or by electronic transmission. Any such resignation shall take effect at the time therein specified or if no time is specified, immediately. Unless otherwise specified in such notice, the acceptance of such resignation shall not be necessary to make it effective.
Section 5.13 Vacancies. A vacancy in any office because of death, resignation, removal, disqualification or any other cause may be filled at any time by the Board, or if such officer was appointed by the Chief Executive Officer, then by the Chief Executive Officer.
Section 5.14 Bank Accounts. In addition to such bank accounts as may be authorized in the usual manner by resolution of the Board, the Chief Financial Officer or the Treasurer, with approval of the Chief Executive Officer may authorize such bank accounts to be opened or maintained in the name and on behalf of the Corporation as the Chief Executive Officer shall deem necessary or appropriate; provided, however, that payments from such bank accounts are to be made upon and according to the check of the Corporation as shall be specified in the written instructions of the Chief Financial Officer or the Treasurer or Assistant Treasurer of the Corporation with the approval of the Chief Executive Officer.
ARTICLE VI
FORM OF SHARES; ISSUANCE OF SHARES; SHARE CERTIFICATES
Section 6.1 Registered Form. The shares shall be represented by certificates in form meeting the requirements of law and approved by the Board of Directors. Certificates shall be signed by the Chief Executive
Officer or a Vice President and by the Secretary or any Assistant Secretary or the Treasurer or any Assistant Treasurer. These signatures may be facsimiles if the certificate is countersigned by a transfer agent or registered by a registrar other than the Corporation itself or its employees.
Section 6.2 Terms and Conditions of Issuance. Subject to the terms of the Articles of Incorporation, shares of the Corporation may be issued at such times, for such considerations and on such terms as may be established from time to time by the Board of Directors in its sole discretion without the approval of the shareholders.
Section 6.3 Number of Shares Represented by Certificates. Share certificates may be issued to represent more than one share. If shares held by a shareholder are represented by one share certificate, and if such shareholder disposes of part of his or her shares, such shareholder shall be entitled to request the issuance of a share certificate representing such shareholders remaining shares.
ARTICLE VII
LOST AND MUTILATED CERTIFICATES
If any shareholder can prove to the satisfaction of the Board of Directors or any transfer agent or registrar of the Corporation, that any share certificate has been mutilated, mislaid or destroyed, then, at such shareholders written request, a duplicate may be issued by the Board of Directors or any transfer agent or registrar of the Corporation on such terms and conditions as the Board of Directors may deem fit. Upon the issuance of the duplicate share certificate (on which it shall be noted that such certificate is a duplicate), the original share certificate shall be null and void vis-à-vis the Corporation. A mutilated share certificate may be exchanged for a duplicate certificate upon delivery of the mutilated certificate to the Board of Directors or any transfer agent or registrar of the Corporation.
ARTICLE VIII
SHAREHOLDERS REGISTER; TRANSFER OF SHARES; NOTICES
Section 8.1 Shareholders Register. The Board of Directors, or registrar or transfer agent designated pursuant to Section 8.5, shall keep a shareholders register (the Register), which contains the names and addresses of all registered shareholders, the number and class of shares held by each shareholder, and the dates when the shareholders became owners of record. The Board of Directors shall regularly maintain the Register, including the registration in the Register of any issue, transfer and cancellation of shares.
Section 8.2 Addresses to be Furnished, Etc. Each shareholder is required to provide his or her address to the Corporation. The Corporation shall be entitled for all purposes to rely on the name and address of the aforementioned persons as entered in the Register. Such person may at any time change his or her address as entered in the Register by means of a written notification to the Corporation at its principal office, or any transfer agent or registrar of the Corporation.
Section 8.3 Access to Register. At the request of a shareholder, the Board of Directors shall furnish an extract of the Register, free of charge, insofar as it relates to such persons interest in a share.
Section 8.4 Location of Register. The Register shall be kept by the Board of Directors at the Corporations principal office, or by a registrar or transfer agent designated thereto by the Board of Directors at such other location as it may deem fit. In case the Register is kept at any location other than the Corporations principal office, then the registrar or transfer agent shall be obligated to send to the principal office of the Corporation a copy thereof from time to time. In case a registrar or transfer agent is appointed by the Board of Directors, then such registrar or transfer agent shall be authorized and, as the case may be, obligated to exercise the rights and fulfill the obligations set out in this Article with respect to the Register.
Section 8.5 Transfer of Shares. The transfer of shares shall be effected (i) by serving upon the Corporation in the manner prescribed by law, an instrument of transfer, or (ii) by written acknowledgment by the Corporation of the transfer, which acknowledgment shall be signed on behalf of the Corporation by or on behalf of the Board of Directors or by the registrar or transfer agent of the Corporation. In case a share certificate is outstanding, the written acknowledgment by the Corporation of the transfer of a share, including any limited rights thereon, can only be made by an endorsement of the transfer on such share certificate. In that case, the transferor or transferee of a share shall present such share certificate to the Corporation, or its registrar or transfer agent, for acknowledgment of the transfer on behalf of the Corporation to be made thereon. In case no share certificate has been issued, the registration of the transfer of a share in the Register shall have the effect of a written acknowledgment by the Corporation of such transfer of a share. This Section shall also apply in the case of an allocation of shares resulting from a division and partition of any community property.
ARTICLE IX
BOOKS AND RECORDS
Section 9.1 Books of Account. The Board of Directors shall cause to be kept proper records of account with respect to all transactions of the Corporation and in particular with respect to:
(i) all sums of money received and expended by the Corporation and the matters in respect of which the receipt and expenditure relates;
(ii) all sales and purchases of goods by the Corporation; and
(iii) all assets and liabilities of the Corporation.
Section 9.2 Minutes. The Board of Directors shall cause minutes to be duly entered in the books provided for the purpose:
(i) of all elections and appointments of Officers;
(ii) of the names of the Directors present at each meeting of the Board of Directors and of any committee appointed by the Board of Directors; and
(iii) of all resolutions and proceedings of general meetings of the Board of Directors and meetings and committees appointed by the Board of Directors.
Section 9.3 Place Where Books of Account and Minutes are Kept. The Corporation shall maintain its books of account and minutes at its registered office, or subject to the provisions of the BCA, at such other place as the Board of Directors deems fit.
ARTICLE X
GENERAL PROVISIONS
Section 10.1 Term of Financial Year. The financial year of the Corporation shall run from the first day of January of each year up to and including the last day of December of such year.
Section 10.2 Seal. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words Corporate Seal, Marshall Islands. Said seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. The seal shall be in, charge of the Secretary. If and when so directed by the Board of Directors or a committee thereof, duplicates of the seal may be kept and used by the Treasurer or by an Assistant Secretary or Assistant Treasurer.
Section 10.3 Section Headings. Section headings in these Bylaws are for convenience of reference only and shall not be given any substantive effect in limiting or otherwise construing any provision herein.
Section 10.4 Inconsistent Provisions. In the event that any provision of these Bylaws is or becomes inconsistent with any provision of the Articles of Incorporation, the BCA or any other applicable law, the provision of these Bylaws shall not be given any effect to the extent of such inconsistency but shall otherwise be given full force and effect.
Section 10.5 Electronic Transmission. For purposes of these Bylaws, electronic transmission means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved, and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.
ARTICLE XI
AMENDMENTS
Section 11.1 By the Shareholders. These Bylaws may be amended by the affirmative vote of the holders of not less than 66-2/3% of the outstanding Common Shares entitled to vote at any annual or special meeting of shareholders at which a quorum is present or represented.
Section 11.2 By the Directors. These Bylaws may, subject to provisions of applicable law, be adopted, amended and repealed without a vote of the shareholders by the affirmative vote of a majority of the Board of Directors at any meeting of the Board at which a quorum is present, except that the provisions of (i) Section 11.1 may be amended only by the affirmative vote of holders of not less than 66-2/3% of the outstanding Common Shares entitled to vote at any annual or special meeting of the shareholders at which a quorum is present or represented and (ii) Section 2.4, Section 3.11, Section 4.2, and this Section 11.2(ii) may be amended only by affirmative vote of at least 75% of the total directors then constituting the Board of Directors at any meeting of the Board at which a quorum is present.
Exhibit 3.3
STATEMENT OF DESIGNATION OF THE
7.95% CUMULATIVE REDEEMABLE PERPETUAL PREFERRED SHARESSERIES D
OF ATLAS CORP.
ATLAS CORP., 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 Corporations Amended and Restated Articles of Incorporation, does hereby certify:
The Board of Directors of the Corporation has adopted the following resolution creating a series of 20,000,000 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 7.95% Cumulative Redeemable Perpetual Preferred SharesSeries D.
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 7.95% Cumulative Redeemable Perpetual Preferred SharesSeries D (Series D Preferred Shares). Each Series D Preferred Share shall be identical in all respects to every other Series D Preferred Share, except as to the respective dates from which the Series D Liquidation Preference shall increase or from which dividends may begin accruing, to the extent such dates may differ. The Series D 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 D Preferred Shares shall be 20,000,000. Series D 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 D 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 D 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 D Preferred Shares shall be made by making payments to, and communicating with, the Securities Depository.
3. Dividends.
(a) Dividends. Dividends on each Series D 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 D 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 D 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 D 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 Corporations 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 D 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 D 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 D 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 D 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 D Preferred Shares and any Parity Securities are paid, any partial payment shall be made pro rata with respect to the Series D Preferred Shares and any Parity Securities entitled to a dividend payment at such time in proportion to the aggregate dividend amounts remaining due in respect of such shares at such time. Holders of the Series D 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 D Preferred Shares. So long as the Series D 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 D 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 D Preferred Shares in an amount equal to the Series D 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 D Preferred Shares or any Parity Securities and (y) the Holders of outstanding Series D Preferred Shares shall be entitled to the Series D 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 D 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 D Liquidation Preference. The payment of the Series D Liquidation Preference shall be a payment in redemption of the Series D Preferred Shares such that, from and after payment of the full Series D Liquidation Preference, any such Series D 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 Corporations assets available for distribution to holders of the outstanding Series D Preferred Shares and any Parity Securities are insufficient to satisfy the applicable Liquidation Preference for such Series D Preferred Shares and Parity Securities, the Corporations then remaining assets or proceeds thereof legally available for distribution to shareholders of the Corporation shall be distributed among the Series D 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 D Preferred Shares receive a partial payment of their Series D Liquidation Preference, such partial payment shall reduce the Series D Liquidation Preference of their Series D Preferred Shares, but only to the extent of such amount paid.
(c) Residual Distributions. After payment of the applicable Liquidation Preference to the holders of the outstanding Series D Preferred Shares and any Parity Securities, the Corporations 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 D 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 D Preferred Shares are in arrears, the Holders of Series D 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 D Preferred Shares voted as a class for the election of such director). Such right of such Holders of Series D 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 D 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 D Preferred Shares as described above in this Section 5(b). Upon any termination of the right of the Holders of the Series D 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 D 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 D 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 D 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 D 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 D 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 D 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 D Preferred Share. Any Series D 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 to redeem the Series D 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 D Preferred Share to be redeemed equal to the Series D Liquidation Preference for such share on such Redemption Date (the Redemption Price). So long as the Series D 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 D Preferred Shares to be redeemed as such Holders names appear on the Corporations 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 D Preferred Shares to be redeemed and, if less than all outstanding Series D 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 D 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 D 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 D Preferred Shares shall be allocated correspondingly among the redeemed Series D Preferred Shares. The Series D 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 D 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 D 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 D Preferred Shares to be redeemed shall cease to accumulate and all rights of Holders of such shares as the Corporations shareholders shall cease, except the right to receive the Redemption Price, and such shares shall not thereafter be transferred on Corporations 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 D 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 D 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 D 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 D 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 D 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 D 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 D 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 D 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 D Preferred Shares or Parity Securities except pursuant to a purchase or exchange offer made on the same terms to all holders of Series D 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 D 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 D 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 D Preferred Shares as to dividend distributions and distributions upon any Liquidation Event (collectively referred to with the Corporations Common Shares as Junior Securities);
(b) Parity. On a parity with (i) the Series E Preferred Shares, (ii) the Series G Preferred Shares, (iii) the Series H Preferred Shares, (iv) the Series I Preferred Shares and (v) 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 D Preferred Shares as to dividend distributions and distributions upon any Liquidation Event (collectively referred to as Parity Securities); and
(c) Junior. Junior to any issued and outstanding 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 D 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 D 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 Corporations fiscal quarters, deemed to commence December 31, 2012. Within 60 days after the end of each fiscal quarter, the Corporation shall deliver to the Registrar and Transfer Agent an Officers Certificate confirming compliance with such covenant. Each such Officers Certificate shall be made available to the Holders of the Series D 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 D 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 Corporations 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 D 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.
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 amended and restated bylaws of the Corporation, as they may be amended from time to time.
Cash and Cash Equivalents means, as of a given date, the Corporations cash and cash equivalents as determined in accordance with U.S. GAAP.
Common Shares means the common shares of the Corporation, par value $0.01 per share.
Corporation has the meaning set forth in the introductory paragraph of this Statement of Designation.
Dividend Payment Date is deemed to mean each January 30, April 30, July 30 and October 30 of each year, commencing January 30, 2013; 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 7.95% per annum of the Stated Series D Liquidation Preference per share.
Holder means the Person in whose name the Series D 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 Corporations 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 the applicable class or series of capital stock of the Corporation so provide). For avoidance of doubt, for the foregoing purposes the Series D Liquidation Preference is the Liquidation Preference with respect to the Series D 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 Boards 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 Corporations consolidated financial statements.
Officers Certificate means a certificate signed by the Corporations Chief Executive Officer or the Chief Financial Officer or another duly authorized officer.
Original Issue Date is deemed to mean December 13, 2012.
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 D 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 Corporations 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 Corporations affairs, over shares of the Common Shares, including, without limitation, the Series D Preferred Shares, the Series E Preferred Shares, the Series G Preferred Shares, the Series H Preferred Shares and the Series I 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.
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 D 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 D Preferred Shares has the meaning set forth in Section 1 of this Statement of Designation.
Series E Preferred Shares means the Corporations 8.25% Cumulative Redeemable Perpetual Preferred SharesSeries E.
Series G Preferred Shares means the Corporations 8.20% Cumulative Redeemable Perpetual Preferred SharesSeries G.
Series H Preferred Shares means the Corporations 7.875% Cumulative Redeemable Perpetual Preferred SharesSeries H.
Series I Preferred Shares means the Corporations Fixed-to-Floating Cumulative Redeemable Perpetual Preferred SharesSeries I.
Series D Liquidation Preference means a liquidation preference for each Series D 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 D Preferred Share.
Stated Series D Liquidation Preference means an amount equal to $25.00 per Series D Preferred Share.
Statement of Designation means this Statement of Designation relating to the Series D 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
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 not the legal owner of the vessel or legally obligated to take delivery of the vessel.
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 not 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 D Preferred Shares, and its respective successors and assigns or any other transfer agent appointed by the Corporation.
U.S. GAAP means generally accepted accounting principles in the United States of America, as in effect as of January 1, 2012.
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 D 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 D 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 D 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 D 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.
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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 27th day of February, 2020.
ATLAS CORP. | ||
By: |
/s/ Ryan Courson |
|
Name: Ryan Courson | ||
Title: Chief Financial Officer |
Signature Page to Statement of Designation Series D
Exhibit 3.4
STATEMENT OF DESIGNATION OF THE
8.25% CUMULATIVE REDEEMABLE PERPETUAL PREFERRED SHARESSERIES E
OF ATLAS CORP.
ATLAS CORP., 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 Corporations Amended and Restated 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 SharesSeries 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 SharesSeries 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.
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 Corporations 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 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 Corporations 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 Corporations 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.
(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 Corporations 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 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 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 Corporations 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 Shares to be redeemed shall cease to accumulate and all rights of Holders of such shares as the Corporations shareholders shall cease, except the right to receive the Redemption Price, and such shares shall not thereafter be transferred on Corporations 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 Corporations Common Shares as Junior Securities);
(b) Parity. On a parity with (i) the Series D Preferred Shares, (ii) the Series G Preferred Shares, (iii) the Series H Preferred Shares, (iv) the Series I Preferred Shares and (v) 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 issued and outstanding 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 Corporations fiscal quarters, deemed to commence March 31, 2014. Within 60 days after the end of each fiscal quarter, the Corporation shall deliver to the Registrar and Transfer Agent an Officers Certificate confirming compliance with such covenant. Each such Officers 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 Corporations 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.
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 amended and restated bylaws of the Corporation, as they may be amended from time to time.
Cash and Cash Equivalents means, as of a given date, the Corporations cash and cash equivalents as determined in accordance with U.S. GAAP.
Common Shares means the common shares of the Corporation, par value $0.01 per share.
Corporation has the meaning set forth in the introductory paragraph of this Statement of Designation.
Dividend Payment Date is deemed to mean 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 Corporations 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 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 Boards 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 Corporations consolidated financial statements.
Officers Certificate means a certificate signed by the Corporations Chief Executive Officer or the Chief Financial Officer or another duly authorized officer.
Original Issue Date is deemed to mean 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 Corporations 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 Corporations affairs, over shares of the Common Shares, including, without limitation, the Series D Preferred Shares, the Series E Preferred Shares, the Series G Preferred Shares, the Series H Preferred Shares and the Series I 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.
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 D Preferred Shares means the Corporations 7.95% Cumulative Redeemable Perpetual Preferred SharesSeries 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.
Series G Preferred Shares means the Corporations 8.20% Cumulative Redeemable Perpetual Preferred SharesSeries G.
Series H Preferred Shares means the Corporations 7.875% Cumulative Redeemable Perpetual Preferred SharesSeries H.
Series I Preferred Shares means the Corporations Fixed-to-Floating Cumulative Redeemable Perpetual Preferred SharesSeries I.
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 not the legal owner of the vessel or legally obligated to take delivery of the vessel.
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 not 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.
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.
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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 27th day of February, 2020.
ATLAS CORP.
By: |
/s/ Ryan Courson |
|
Name: | Ryan Courson | |
Title: | Chief Financial Officer |
Signature Page to Statement of Designation Series E
Exhibit 3.5
STATEMENT OF DESIGNATION OF THE 8.20%
CUMULATIVE REDEEMABLE PERPETUAL PREFERRED SHARESSERIES G
OF ATLAS CORP.
ATLAS CORP., 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 Corporations Amended and Restated 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 8.20% Cumulative Redeemable Perpetual Preferred SharesSeries G.
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 8.20% Cumulative Redeemable Perpetual Preferred SharesSeries G (Series G Preferred Shares). Each Series G Preferred Share shall be identical in all respects to every other Series G Preferred Share, except as to the respective dates from which the Series G Liquidation Preference shall increase or from which dividends may begin accruing, to the extent such dates may differ. The Series G 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 G Preferred Shares shall be 15,000,000. Series G 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 G 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 G 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 G Preferred Shares shall be made by making payments to, and communicating with, the Securities Depository.
3. Dividends.
(a) Dividends. Dividends on each Series G 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 of this Statement of Designation, whether or not such dividends shall have been declared, and whether or not there are profits, surplus, or other funds legally available for the payment of dividends. Holders of Series G Preferred Shares shall be entitled to receive dividends from time to time out of any assets of the 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 G 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 G Preferred Shares that shall have been declared by the Board of Directors to the Holders of record of such shares as such Holders names appear on the stock transfer books of the 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 Corporations 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 G 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 of this Statement of Designation, 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 G Preferred Shares on the record date for such payment, which may not be more than 60 days, nor less than 15 days, before such payment date. Subject to the next succeeding sentence, if all accumulated dividends in arrears on all outstanding Series G Preferred Shares and any Parity Securities shall not have been declared and paid, or if sufficient funds for the payment thereof shall not have been set apart, payment of accumulated dividends in arrears on the Series G Preferred Shares and any such Parity Securities shall be made in order of their respective dividend payment dates, commencing with the earliest. If less than all dividends payable with respect to all Series G Preferred Shares and any Parity Securities are paid, any partial payment shall be made pro rata with respect to the Series G Preferred Shares and any Parity Securities entitled to a dividend payment at such time in proportion to the aggregate dividend amounts remaining due in respect of such shares at such time. Holders of the Series G Preferred Shares shall not be entitled to any dividend, whether payable in cash, property or 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) of this Statement of Designation, 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 G Preferred Shares. So long as the Series G 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 G 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 G Preferred Shares in an amount equal to the Series G 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 G Preferred Shares or any Parity Securities and (y) the Holders of outstanding Series G Preferred Shares shall be entitled to the Series G Liquidation Preference per share in cash concurrently with any distribution made to the holders of Parity Securities and before any distribution shall be made to the holders of Common Shares or any other Junior Securities. Holders of Series G Preferred Shares shall not be entitled to any other amounts from the Corporation, in their capacity as Holders of such shares, after they have received the Series G Liquidation Preference. The payment of the Series G Liquidation Preference shall be a payment in redemption of the Series G Preferred Shares such that, from and after payment of the full Series G Liquidation Preference, any such Series G Preferred Share shall thereafter be cancelled and no longer be outstanding.
(b) Partial Payment. If, in the event of any distribution or payment described in Section 4(a) of this Statement of Designation where the Corporations assets available for distribution to holders of the outstanding Series G Preferred Shares and any Parity Securities are insufficient to satisfy the applicable Liquidation Preference for such Series G Preferred Shares and Parity Securities, the Corporations then remaining assets or proceeds thereof legally available for distribution to shareholders of the Corporation shall be distributed among the Series G Preferred Shares and such Parity Securities, as applicable, ratably on the basis of their relative aggregate Liquidation Preferences. To the extent that the Holders of Series G Preferred Shares receive a partial payment of their Series G Liquidation Preference, such partial payment shall reduce the Series G Liquidation Preference of their Series G Preferred Shares, but only to the extent of such amount paid.
(c) Residual Distributions. After payment of the applicable Liquidation Preference to the holders of the outstanding Series G Preferred Shares and any Parity Securities, the Corporations 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 G 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 G Preferred Shares are in arrears, the Holders of Series G 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 G Preferred Shares voted as a Class for the election of such director). Such right of such Holders of Series G 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 G 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 G Preferred Shares as described above in this Section 5(b). Upon any termination of the right of the Holders of the Series G 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 G 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 G 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 G 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 G 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 G 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 G Preferred Shares are entitled to vote as a Class (whether separately or together with the holders of any Parity Securities), such Holders shall be entitled to one vote per Series G Preferred Share. Any Series G Preferred Shares held by the 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 June 16, 2021 to redeem the Series G 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 G Preferred Share to be redeemed equal to the Series G Liquidation Preference for such share on such Redemption Date (the Redemption Price). So long as the Series G 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 G Preferred Shares to be redeemed as such Holders names appear on the Corporations 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 G Preferred Shares to be redeemed and, if less than all outstanding Series G Preferred Shares are to be redeemed, the number (and the identification) of shares to be redeemed from such Holder, (3) the Redemption Price, (4) the place where the Series G Preferred Shares are to be redeemed and shall be presented and surrendered for payment of the Redemption Price therefor and (5) that dividends on the shares to be redeemed shall cease to accumulate from and after such Redemption Date.
(c) Effect of Redemption; Partial Redemption. If the Corporation elects to redeem less than all of the outstanding Series G 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 Corporation, or if appointed by the Corporation, 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 G Preferred Shares shall be allocated correspondingly among the redeemed Series G Preferred Shares. The Series G Preferred Shares not redeemed shall remain outstanding and entitled to all the rights and preferences provided in this 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 G Preferred Shares as to which such Redemption Notice shall have been given, no later than 5:00 p.m. New York City time on the Business Day immediately preceding the Redemption Date, and shall give the Paying Agent irrevocable instructions and authority to pay the Redemption Price to the Holders of the Series G Preferred Shares to be redeemed upon surrender or deemed surrender (which shall occur automatically if the certificate representing such shares is issued in the name of the Securities Depository or its nominee or if the shares are held in book-entry form by the Transfer Agent) 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 G Preferred Shares to be redeemed shall cease to accumulate and all rights of Holders of such shares as the Corporations shareholders shall cease, except the right to receive the Redemption Price, and such shares shall not thereafter be transferred on Corporations 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 G Preferred Shares to be redeemed), and the Holders of any shares so redeemed shall have no claim to any such interest income. Any funds deposited with the Paying Agent hereunder by the Corporation for any reason, including redemption of Series G Preferred Shares, that remain unclaimed or unpaid after two years after the applicable Redemption Date or other payment date, shall be, to the extent permitted by law, repaid to the Corporation upon its written request after which repayment the Holders of the Series G Preferred Shares entitled to such redemption or other payment shall have recourse only to the Corporation. Notwithstanding any Redemption Notice, there shall be no redemption of any Series G Preferred Shares called for redemption until funds sufficient to pay the full Redemption Price of such shares shall have been deposited by the Corporation with the Paying Agent.
(e) Certificate. Any Series G 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 G Preferred Shares represented by a certificate shall have been called for redemption, upon surrender of the certificate to the Paying Agent (which shall occur automatically if the certificate representing such shares is registered in the name of the Securities Depository or its nominee or if the shares are held in book-entry form by the Transfer Agent), the Paying Agent shall issue to the Holder of such shares a new certificate (or adjust the applicable book-entry account) representing the number of Series G Preferred Shares represented by the surrendered certificate that have not been called for redemption.
(f) Redemption Priority. Notwithstanding anything to the contrary in this Section 6, in the event that full cumulative dividends on the Series G 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 G Preferred Shares or Parity Securities except pursuant to a purchase or exchange offer made on the same terms to all holders of Series G 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 G 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 G 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 G Preferred Shares as to dividend distributions and distributions upon any Liquidation Event (collectively referred to with the Corporations Common Shares as Junior Securities);
(b) Parity. On a parity with (i) the Series D Preferred Shares, (ii) the Series E Preferred Shares, (ii) the Series H Preferred Shares, (iv) Series I Preferred Shares and (v) 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 G Preferred Shares as to dividend distributions and distributions upon any Liquidation Event (collectively referred to as Parity Securities); and
(c) Junior. Junior to any issued and outstanding 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 G 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 G Preferred Shares. The Board of Directors has the authority to determine the preferences, powers, qualifications, limitations, restrictions and special or relative rights or privileges, if any, of any such Series before the issuance of any shares of that series. The Board of Directors shall also determine the number of shares constituting each 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 Corporations fiscal quarters, deemed to commence June 30, 2016. Within 60 days after the end of each fiscal quarter, the Corporation shall deliver to the Registrar and Transfer Agent an Officers Certificate confirming compliance with such covenant. Each such Officers Certificate shall be made available to the Holders of the Series G 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 G 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 Corporations 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 of this Statement of Designation shall be construed in accordance with U.S. GAAP.
9. Definitions. As used herein with respect to the Series G 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.
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 amended and restated bylaws of the Corporation, as they may be amended from time to time.
Cash and Cash Equivalents means, as of a given date, the Corporations cash and cash equivalents as determined in accordance with U.S. GAAP.
Common Shares means the common shares of the Corporation, par value $0.01 per share.
Corporation has the meaning set forth in the introductory paragraph of this Statement of Designation.
Dividend Payment Date is deemed to mean each January 30, April 30, July 30 and October 30 of each year, commencing July 30, 2016; 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 8.20% per annum of the Stated Series G Liquidation Preference per share.
Holder means the Person in whose name the Series G 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 Corporations 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 the applicable Class or Series of capital stock of the Corporation so provide). For avoidance of doubt, for the foregoing purposes the Series G Liquidation Preference is the Liquidation Preference with respect to the Series G Preferred Shares.
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 Boards 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 Corporations consolidated financial statements.
Officers Certificate means a certificate signed by the Corporations Chief Executive Officer or the Chief Financial Officer or another duly authorized officer.
Original Issue Date is deemed to mean June 16, 2016.
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 G 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 Corporations 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 Corporations affairs, over shares of the Common Shares, including, without limitation, the Series D Preferred Shares, the Series E Preferred Shares, the Series G Preferred Shares, the Series H Preferred Shares and the Series I 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.
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 G 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 D Preferred Shares means the Corporations 7.95% Cumulative Redeemable Perpetual Preferred SharesSeries D.
Series E Preferred Shares means the Corporations 8.25% Cumulative Redeemable Perpetual Preferred SharesSeries E.
Series G Liquidation Preference means a liquidation preference for each Series G 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 G Preferred Share.
Series G Preferred Shares has the meaning set forth in Section 1 of this Statement of Designation.
Stated Series G Liquidation Preference means an amount equal to $25.00 per Series G Preferred Share.
Series H Preferred Shares means the Corporations 7.875% Cumulative Redeemable Perpetual Preferred SharesSeries H.
Series I Preferred Shares means the Corporations Fixed-to-Floating Cumulative Redeemable Perpetual Preferred SharesSeries I.
Statement of Designation means this Statement of Designation relating to the Series G 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 not the legal owner of the vessel or legally obligated to take delivery of the vessel.
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 not 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 G Preferred Shares, and its respective successors and assigns or any other transfer agent appointed by the Corporation.
U.S. GAAP means generally accepted accounting principles in the United States of America, as in effect as of January 1, 2016.
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 G 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 G 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 G Preferred Shares shall be sufficiently given if given in writing and delivered in person or by first class mail, postage prepaid, or if given in such other manner as may be permitted in this Statement of Designation, in the Articles of Incorporation and Bylaws or by applicable law.
13. Other Rights. The Series G 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.
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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 27th day of February, 2020.
ATLAS CORP. | ||
By: |
/s/ Ryan Courson |
|
Name: Ryan Courson | ||
Title: Chief Financial Officer |
Signature Page to Statement of Designation Series G
Exhibit 3.6
STATEMENT OF DESIGNATION OF THE 7.875%
CUMULATIVE REDEEMABLE PERPETUAL PREFERRED SHARESSERIES H
OF ATLAS CORP.
ATLAS CORP., 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 Corporations Amended and Restated 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 7.875% Cumulative Redeemable Perpetual Preferred SharesSeries H.
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 7.875% Cumulative Redeemable Perpetual Preferred SharesSeries H (Series H Preferred Shares). Each Series H Preferred Share shall be identical in all respects to every other Series H Preferred Share, except as to the respective dates from which the Series H Liquidation Preference shall increase or from which dividends may begin accruing, to the extent such dates may differ. The Series H 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 H Preferred Shares shall be 15,000,000. Series H 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 H 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 H 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 H Preferred Shares shall be made by making payments to, and communicating with, the Securities Depository.
3. Dividends.
(a) Dividends. Dividends on each Series H 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 of this Statement of Designation, 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 H 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 H 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 H 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 Corporations 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 H 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 of this Statement of Designation, 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 H 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 H 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 H 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 H Preferred Shares and any Parity Securities are paid, any partial payment shall be made pro rata with respect to the Series H Preferred Shares and any Parity Securities entitled to a dividend payment at such time in proportion to the aggregate dividend amounts remaining due in respect of such shares at such time. Holders of the Series H 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) of this Statement of Designation, 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 H Preferred Shares. So long as the Series H 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 H 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 H Preferred Shares in an amount equal to the Series H 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 H Preferred Shares or any Parity Securities and (y) the Holders of outstanding Series H Preferred Shares shall be entitled to the Series H 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 H 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 H Liquidation Preference. The payment of the Series H Liquidation Preference shall be a payment in redemption of the Series H Preferred Shares such that, from and after payment of the full Series H Liquidation Preference, any such Series H 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) of this Statement of Designation where the Corporations assets available for distribution to holders of the outstanding Series H Preferred Shares and any Parity Securities are insufficient to satisfy the applicable Liquidation Preference for such Series H Preferred Shares and Parity Securities, the Corporations then remaining assets or proceeds thereof legally available for distribution to shareholders of the Corporation shall be distributed among the Series H 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 H Preferred Shares receive a partial payment of their Series H Liquidation Preference, such partial payment shall reduce the Series H Liquidation Preference of their Series H Preferred Shares, but only to the extent of such amount paid.
(c) Residual Distributions. After payment of the applicable Liquidation Preference to the holders of the outstanding Series H Preferred Shares and any Parity Securities, the Corporations 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 H 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 H Preferred Shares are in arrears, the Holders of Series H 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 H Preferred Shares voted as a Class for the election of such director). Such right of such Holders of Series H 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 H 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 H Preferred Shares as described above in this Section 5(b). Upon any termination of the right of the Holders of the Series H 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 H 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 H 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 H 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 H 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 H 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 H 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 H Preferred Share. Any Series H 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 August 11, 2021 to redeem the Series H 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 H Preferred Share to be redeemed equal to the Series H Liquidation Preference for such share on such Redemption Date (the Redemption Price). So long as the Series H 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 H Preferred Shares to be redeemed as such Holders names appear on the Corporations 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 H Preferred Shares to be redeemed and, if less than all outstanding Series H 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 H 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 H 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 Corporation, or if appointed by the Corporation, 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 H Preferred Shares shall be allocated correspondingly among the redeemed Series H Preferred Shares. The Series H 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 H 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 H 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 or if the shares are held in book-entry form by the Transfer Agent) 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 H Preferred Shares to be redeemed shall cease to accumulate and all rights of Holders of such shares as the Corporations shareholders shall cease, except the right to receive the Redemption Price, and such shares shall not thereafter be transferred on Corporations 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 H 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 H 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 H 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 H 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 H 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 H 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 or if the shares are held in book-entry form by the Transfer Agent), 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 H 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 H 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 H Preferred Shares or Parity Securities except pursuant to a purchase or exchange offer made on the same terms to all holders of Series H 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 H 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 H 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 H Preferred Shares as to dividend distributions and distributions upon any Liquidation Event (collectively referred to with the Corporations Common Shares as Junior Securities);
(b) Parity. On a parity with (i) the Series D Preferred Shares, (ii) the Series E Preferred Shares, (iii) the Series G Preferred Shares, (iv) the Series H Preferred Shares, (v) the Series I Preferred Shares and (vi) 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 H Preferred Shares as to dividend distributions and distributions upon any Liquidation Event (collectively referred to as Parity Securities); and
(c) Junior. Junior to any issued and outstanding 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 H 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 H 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 Corporations fiscal quarters, deemed to commence September 30, 2016. Within 60 days after the end of each fiscal quarter, the Corporation shall deliver to the Registrar and Transfer Agent an Officers Certificate confirming compliance with such covenant. Each such Officers Certificate shall be made available to the Holders of the Series H 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 H 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 Corporations 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 of this Statement of Designation shall be construed in accordance with U.S. GAAP.
9. Definitions. As used herein with respect to the Series H 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.
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 amended and restated bylaws of the Corporation, as they may be amended from time to time.
Cash and Cash Equivalents means, as of a given date, the Corporations cash and cash equivalents as determined in accordance with U.S. GAAP.
Common Shares means the common shares of the Corporation, par value $0.01 per share.
Corporation has the meaning set forth in the introductory paragraph of this Statement of Designation.
Dividend Payment Date is deemed to mean each January 30, April 30, July 30 and October 30 of each year, commencing October 30, 2016; 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 7.875% per annum of the Stated Series H Liquidation Preference per share.
Holder means the Person in whose name the Series H 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 Corporations 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 the applicable Class or Series of capital stock of the Corporation so provide). For avoidance of doubt, for the foregoing purposes the Series H Liquidation Preference is the Liquidation Preference with respect to the Series H 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 Boards 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 Corporations consolidated financial statements.
Officers Certificate means a certificate signed by the Corporations Chief Executive Officer or the Chief Financial Officer or another duly authorized officer.
Original Issue Date is deemed to mean August 11, 2016.
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 H 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 Corporations 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 Corporations affairs, over shares of the Common Shares, including, without limitation, the Series D Preferred Shares, the Series E Preferred Shares, the Series F Preferred Shares, the Series G Preferred Shares and the Series H 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.
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 H 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 D Preferred Shares means the Corporations 7.95% Cumulative Redeemable Perpetual Preferred SharesSeries D.
Series E Preferred Shares means the Corporations 8.25% Cumulative Redeemable Perpetual Preferred SharesSeries E.
Series F Preferred Shares means the Corporations 6.95% Cumulative Convertible Perpetual Preferred SharesSeries F.
Series G Preferred Shares means the Corporations 8.20% Cumulative Redeemable Perpetual Preferred SharesSeries G.
Series H Liquidation Preference means a liquidation preference for each Series H 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 H Preferred Share.
Series H Preferred Shares has the meaning set forth in Section 1 of this Statement of Designation.
Series I Preferred Shares means the Corporations Fixed-to-Floating Cumulative Redeemable Perpetual Preferred SharesSeries I.
Stated Series H Liquidation Preference means an amount equal to $25.00 per Series H Preferred Share.
Statement of Designation means this Statement of Designation relating to the Series H 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 not the legal owner of the vessel or legally obligated to take delivery of the vessel.
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 not 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 H Preferred Shares, and its respective successors and assigns or any other transfer agent appointed by the Corporation.
U.S. GAAP means generally accepted accounting principles in the United States of America, as in effect as of January 1, 2016.
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 H 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 H 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 H 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 H 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.
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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 27th day of February, 2020.
ATLAS CORP.
By: |
/s/ Ryan Courson |
|
Name: | Ryan Courson | |
Title: | Chief Financial Officer |
Signature Page to Statement of Designation Series H
Exhibit 3.7
STATEMENT OF DESIGNATION OF THE FIXED-TO-FLOATING CUMULATIVE
REDEEMABLE PERPETUAL PREFERRED SHARESSERIES I OF
ATLAS CORP.
ATLAS CORP., 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 Corporations Amended and Restated Articles of Incorporation, does hereby certify:
The Board of Directors of the Corporation has adopted the following resolution creating a series of 6,000,000 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 Fixed-to-Floating Cumulative Redeemable Perpetual Preferred SharesSeries I.
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 Fixed-to-Floating Cumulative Redeemable Perpetual Preferred SharesSeries I (Series I Preferred Shares). Each Series I Preferred Share shall be identical in all respects to every other Series I Preferred Share, except as to the respective dates from which the Series I Liquidation Preference shall increase or from which dividends may begin accruing, to the extent such dates may differ. The Series I 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 I Preferred Shares shall be 6,000,000. Series I 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 I 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 I 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 I Preferred Shares shall be made by making payments to, and communicating with, the Securities Depository.
3. Dividends.
(a) Dividends. Dividends on each Series I Preferred Share shall be cumulative and shall accrue at the then applicable 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 of this Statement of Designation, 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 I 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 applicable Dividend Payment Date for such Dividend Period, and dividends shall accrue on accumulated dividends at the then applicable Dividend Rate. If any Dividend Payment Date during the Fixed Rate Period otherwise would fall on a day that is not a Business Day, then the dividend which would otherwise have been payable on such Dividend Payment Date shall be paid on the immediately succeeding Business Day without the accumulation of additional dividends or interest. If any Dividend Payment Date during the Floating Rate Period otherwise would fall on a day that is not a Business Day, then the Dividend Payment Date shall be the immediately succeeding Business Day and, as a result, the amount of the dividend for the relevant Dividend Period will be adjusted accordingly. During the Fixed Rate Period, any dividend payable on the Series I Preferred Shares, including dividends payable for any partial Dividend Period, will be computed on the basis of a 360-day year consisting of twelve 30-day months. During the Floating Rate Period, any dividend payable on the Series I Preferred Shares, including dividends payable for any partial Dividend Period, will be computed on the basis of a 360-day year and the number of days actually elapsed during the Dividend Period.
The term Calculation Agent means a third party independent financial institution of national standing with experience providing such services, which has been selected by the Corporation.
The term Dividend Determination Date means the London Business Day (as defined below) immediately preceding the first date of the applicable Dividend Period.
The term Dividend Period means the period from, and including, a Dividend Payment Date to, but excluding, the next succeeding Dividend Payment Date.
The term Dividend Rate shall mean 8.00% of the Stated Series I Liquidation Preference per share during the Fixed Rate Period and a percentage of Stated Series I Liquidation Preference per share equal to an annual floating rate of the Three-Month LIBOR Rate plus a spread of 5.008% during the Floating Rate Period.
The term Fixed Rate Period means the period from and including the Original Issue Date, to, but not including, October 30, 2023.
The term Floating Rate Period means the period from, and including, October 30, 2023.
The term London Business Day means any day on which dealings in deposits in U.S. dollars are transacted in the London interbank market.
The term Reuters Page LIBOR01 means the display so designated on the Reuters 3000 Xtra (or such other page as may replace the LIBOR01 page on that service, or such other service as may be nominated by the ICE Benchmark Administration Limited (ICE) or its successor, or such other entity assuming the responsibility of ICE or its successor in the event ICE or its successor no longer does so, as the successor service, for the purpose of displaying London interbank offered rates for U.S. dollar deposits).
The term Three-Month LIBOR Rate shall be calculated by the Corporation for each Dividend Period during the Floating Rate Period and means, on any Dividend Determination Date: (i) the rate (expressed as a percentage per year) for deposits in U.S. dollars having an index maturity of three months, in amounts of at least $1,000,000, as such rate appears on Reuters Page LIBOR01 at approximately 11:00 a.m. (London time) on the relevant Dividend Determination Date; or (ii) if no such rate appears on Reuters Page LIBOR01 or if the Reuters Page LIBOR01 is not available at approximately 11:00 a.m. (London time) on the relevant Dividend Determination Date, then the Corporation will select four nationally-recognized banks in the London interbank market and request that the principal London officers of those four selected banks provide the Corporation with their offered quotation for deposits in U.S. dollars for a period of three months, commencing on the first day of the applicable Dividend Period, to prime banks in the London interbank market at approximately 11:00 a.m. (London time) on that Dividend Determination Date for the applicable Dividend Period. Offered quotations must be based on a principal amount equal to an amount that, in the discretion of the Corporation, is representative of a single transaction in U.S. dollars in the London interbank market at that time. If at least two quotations are provided, the Three-Month LIBOR Rate for such Dividend Period will be the arithmetic mean (rounded upward if necessary, to the nearest 0.00001 of 1%) of those quotations. If fewer than two quotations are provided, the Three-Month LIBOR Rate for such Dividend Period will be the arithmetic mean (rounded upward if necessary, to the nearest 0.00001 of 1%) of the rates quoted at approximately 11:00 a.m. (New York City time) on that Dividend Determination Date for such Dividend Period by three nationally-recognized banks in New York, New York, selected by the Corporation, for loans in U.S. dollars to nationally-recognized European banks (as selected by the Corporation), for a period of three months commencing on the first day of such Dividend Period. The rates quoted must be based on an amount that, in the discretion of the Corporation, is representative of a single transaction in U.S. dollars in that market at that time. If no quotation is provided as described above, then if a Calculation Agent has not been appointed at such time, the Corporation shall appoint a Calculation Agent who shall, after consulting such sources as it deems comparable to any of the foregoing quotations or display page, or any such source as it deems reasonable from which to estimate LIBOR or any of the foregoing lending rates, shall determine LIBOR for the second London Business Day immediately preceding the first day of such Dividend Period in its sole discretion. If the Calculation Agent is unable or unwilling to determine LIBOR as provided in the immediately preceding sentence, the Calculation Agent will use a substitute or successor base rate that it has determined in its sole discretion is most comparable to the Three-Month LIBOR Rate, provided that if the Calculation Agent determines there is an industry-accepted substitute or successor base rate, then the Calculation Agent shall use such substitute or successor base rate. If the Calculation Agent has determined a substitute or successor base rate in accordance with the immediately preceding sentence, the Calculation Agent in its sole discretion
may determine what business day convention to use, the definition of business day, the dividend determination date to be used and any other relevant methodology for calculating such substitute or successor base rate, including any adjustment factor needed to make such substitute or successor base rate comparable to the Three-Month LIBOR Rate, in a manner that is consistent with industry-accepted practices for such substitute or successor base rate.
Notwithstanding clause (ii) above, (x) if the Corporation determines on the relevant Dividend Determination Date that the Three-Month LIBOR Rate has been discontinued, then the Corporation shall appoint a Calculation Agent and the Calculation Agent shall use a substitute or successor base rate that it has determined in its sole discretion is most comparable to the Three-Month LIBOR Rate, provided that if the Calculation Agent determines there is an industry-accepted substitute or successor base rate, then the Calculation Agent shall use such substitute or successor base rate, and (y) if the Calculation Agent has determined a substitute or successor base rate in accordance with the foregoing, the Calculation Agent in its sole discretion may determine what business day convention to use, the definition of business day, the dividend determination date to be used and any other relevant methodology for calculating such substitute or successor base rate, including any adjustment factor needed to make such substitute or successor base rate comparable to the Three-Month LIBOR Rate, in a manner that is consistent with industry-accepted practices for such substitute or successor base rate.
(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 I 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 Corporations 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 I 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 of this Statement of Designation, 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 I 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 I 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 I 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 I Preferred Shares and any Parity Securities are paid, any partial payment shall be made pro rata with respect to the Series I Preferred Shares and any Parity Securities entitled to a dividend payment at such time in proportion to the aggregate dividend amounts remaining due in respect of
such shares at such time. Holders of the Series I 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) of this Statement of Designation, 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 I Preferred Shares. So long as the Series I 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 I 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 I Preferred Shares in an amount equal to the Series I Liquidation Preference. For purposes of clarity, upon the occurrence of any Liquidation Event, 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 I Preferred Shares or any Parity Securities and (y) the Holders of outstanding Series I Preferred Shares shall be entitled to the Series I 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 I 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 I Liquidation Preference. The payment of the Series I Liquidation Preference shall be a payment in redemption of the Series I Preferred Shares such that, from and after payment of the full Series I Liquidation Preference, any such Series I 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) of this Statement of Designation where the Corporations assets available for distribution to holders of the outstanding Series I Preferred Shares and any Parity Securities are insufficient to satisfy the applicable Liquidation Preference for such Series I Preferred Shares and Parity Securities, the Corporations then remaining assets or proceeds thereof legally available for distribution to shareholders of the Corporation shall be distributed among the Series I 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 I Preferred Shares receive a partial payment of their Series I Liquidation Preference, such partial payment shall reduce the Series I Liquidation Preference of their Series I Preferred Shares, but only to the extent of such amount paid.
(c) Residual Distributions. After payment of the applicable Liquidation Preference to the holders of the outstanding Series I Preferred Shares and any Parity Securities, the Corporations 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 I 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 I Preferred Shares are in arrears, the Holders of Series I 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 I Preferred Shares voted as a class for the election of such director). Such right of such Holders of Series I 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 I 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 I Preferred Shares as described above in this Section 5(b). Upon any termination of the right of the Holders of the Series I 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 I 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 I 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 I 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 I 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 I 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 I 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 I Preferred Share. Any Series I 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 October 30, 2023 to redeem the Series I 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 I Preferred Share to be redeemed equal to the Series I Liquidation Preference for such share on such Redemption Date (the Redemption Price). So long as the Series I 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 I Preferred Shares to be redeemed as such Holders names appear on the Corporations 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 I Preferred Shares to be redeemed and, if less than all outstanding Series I 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 I 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 I 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 Corporation, or if appointed by the Corporation, 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 I Preferred Shares shall be allocated correspondingly among the redeemed Series I Preferred Shares. The Series I 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 I 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 I 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 or if the shares are held in book-entry form by the Transfer Agent) 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 I Preferred Shares to be redeemed shall cease to accumulate and all rights of Holders of such shares as the Corporations shareholders shall cease, except the right to receive the Redemption Price, and such shares shall not thereafter be transferred on Corporations 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 I 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 I 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 I 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 I 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 I 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 I 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 or if the shares are held in book-entry form by the Transfer Agent), 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 I 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 I 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 I Preferred Shares or Parity Securities except pursuant to a purchase or exchange offer made on the same terms to all holders of Series I 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 I 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 I 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 I Preferred Shares as to dividend distributions and distributions upon any Liquidation Event (collectively referred to with the Corporations Common Shares as Junior Securities);
(b) Parity. On a parity with (i) the Series D Preferred Shares, (ii) the Series E Preferred Shares, (iii) the Series G Preferred Shares, (iv) the Series H Preferred Shares and (v) 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 I Preferred Shares as to dividend distributions and distributions upon any Liquidation Event (collectively referred to as Parity Securities); and
(c) Junior. Junior to any issued and outstanding 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 I 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 I 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 Corporations fiscal quarters, deemed to commence September 30, 2018. Within 60 days after the end of each fiscal quarter, the Corporation shall deliver to the Registrar and Transfer Agent an Officers Certificate confirming compliance with such covenant. Each such Officers Certificate shall be made available to the Holders of the Series I 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 I 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 Corporations 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 of this Statement of Designation shall be construed in accordance with U.S. GAAP.
9. Definitions. As used herein with respect to the Series I 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.
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 amended and restated bylaws of the Corporation, as they may be amended from time to time.
Cash and Cash Equivalents means, as of a given date, the Corporations cash and cash equivalents as determined in accordance with U.S. GAAP.
Common Shares means the common shares of the Corporation, par value $0.01 per share.
Corporation has the meaning set forth in the introductory paragraph of this Statement of Designation.
Dividend Payment Date is deemed to mean each January 30, April 30, July 30 and October 30 of each year, commencing October 30, 2018; 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.
Holder means the Person in whose name the Series I 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 Corporations 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 the applicable class or series of capital stock of the Corporation so provide). For avoidance of doubt, for the foregoing purposes the Series I Liquidation Preference is the Liquidation Preference with respect to the Series I 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 Boards 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 Corporations consolidated financial statements.
Officers Certificate means a certificate signed by the Corporations Chief Executive Officer or the Chief Financial Officer or another duly authorized officer.
Original Issue Date is deemed to mean September 19, 2018.
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 I 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 Corporations 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 Corporations affairs, over shares of the Common Shares, including, without limitation, the Series D Preferred Shares, the Series E Preferred Shares, the Series G Preferred Shares, the Series H Preferred Shares and the Series I 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. 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 I 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 D Preferred Shares means the Corporations 7.95% Cumulative Redeemable Perpetual Preferred SharesSeries D.
Series E Preferred Shares means the Corporations 8.25% Cumulative Redeemable Perpetual Preferred SharesSeries E.
Series G Preferred Shares means the Corporations 8.20% Cumulative Redeemable Perpetual Preferred SharesSeries G.
Series H Preferred Shares means the Corporations 7.875% Cumulative Redeemable Perpetual Preferred SharesSeries H.
Series I Liquidation Preference means a liquidation preference for each Series I 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 I Preferred Share.
Series I Preferred Shares has the meaning set forth in Section 1 of this Statement of Designation.
Stated Series I Liquidation Preference means an amount equal to $25.00 per Series I Preferred Share.
Statement of Designation means this Statement of Designation relating to the Series I 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; 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 not the legal owner of the vessel or legally obligated to take delivery of the vessel.
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 not 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 I Preferred Shares, and its respective successors and assigns or any other transfer agent appointed by the Corporation.
U.S. GAAP means generally accepted accounting principles in the United States of America, as in effect as of December 31, 2017.
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 I 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 I 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 I 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 I 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]
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 27th day of February, 2020.
ATLAS CORP. | ||
By: |
/s/ Ryan Courson |
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Name: Ryan Courson | ||
Title: Chief Financial Officer |
Signature Page to Statement of Designation Series I
Exhibit 4.1
[Number] |
COMMON STOCK
[Number of Shares]
CUSIP ________ |
ATLAS CORP.
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, COMMON SHARES OF ATLAS CORP.
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 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:
The Corporation will furnish without charge to each Atlas Corp. 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 | UNIF GIFT MIN ACT |
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Custodian |
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TEN ENT | | as tenants by the entireties | (Cust) | (Minor) | ||||||||
JT TEN | | as joint tenants with right of survivorship and not as tenants in common |
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
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(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
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||
|
||
|
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. |
Exhibit 4.2
[Number] |
PREFERRED STOCK
[Number of Shares] |
ATLAS CORP.
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, 7.95% CUMULATIVE REDEEMABLE PERPETUAL PREFERRED SHARES SERIES D OF ATLAS CORP.
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 7.95% Cumulative Redeemable Perpetual Preferred Shares Series D 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:
The Corporation will furnish without charge to each Atlas Corp. 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 | UNIF GIFT MIN ACT | Custodian | ||||||||
TEN ENT | | as tenants by the entireties | (Cust) | (Minor) | ||||||||
JT TEN | | as joint tenants with right of survivorship and not as tenants in common |
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. |
Exhibit 4.3
[Number] |
PREFERRED STOCK
[Number of Shares] |
ATLAS CORP.
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 ATLAS CORP.
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 Atlas Corp. 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 | UNIF GIFT MIN ACT |
|
Custodian |
|
||||||
TEN ENT | | as tenants by the entireties |
(Cust)
|
(Minor)
|
||||||||
JT TEN | | as joint tenants with right of survivorship and not as tenants in common |
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. |
Exhibit 4.4
[Number] |
PREFERRED STOCK
[Number of Shares] |
ATLAS CORP.
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, 8.20% CUMULATIVE REDEEMABLE PERPETUAL PREFERRED SHARES SERIES G OF ATLAS CORP.
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 8.20% Cumulative Redeemable Perpetual Preferred Shares Series G 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 Atlas Corp. 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 | UNIF GIFT MIN ACT |
|
Custodian |
|
||||||
TEN ENT | | as tenants by the entireties | (Cust) | (Minor) | ||||||||
JT TEN | | as joint tenants with right of survivorship and not as tenants in common |
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. |
Exhibit 4.5
[Number] | PREFERRED STOCK | |
[Number of Shares] |
ATLAS CORP.
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, 7.875% CUMULATIVE REDEEMABLE PERPETUAL PREFERRED SHARES SERIES H OF ATLAS CORP.
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 7.875% Cumulative Redeemable Perpetual Preferred Shares Series H 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 Atlas Corp. 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 | UNIF GIFT MIN ACT |
|
Custodian |
|
||||||
TEN ENT | | as tenants by the entireties | (Cust) | (Minor) | ||||||||
JT TEN | | as joint tenants with right of survivorship and not as tenants in common |
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. |
Exhibit 4.6
[Number] |
PREFERRED STOCK
[Number of Shares] |
ATLAS CORP.
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, FIXED-TO-FLOATING CUMULATIVE REDEEMABLE PERPETUAL PREFERRED SHARESSERIES I OF ATLAS CORP.
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 Fixed-to-Floating Cumulative Redeemable Perpetual Preferred SharesSeries I 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 Atlas Corp. 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 | UNIF GIFT MIN ACT |
|
Custodian |
|
||||||
TEN ENT | | as tenants by the entireties | (Cust) | (Minor) | ||||||||
JT TEN | | as joint tenants with right of survivorship and not as tenants in common |
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. |
Exhibit 4.7
AMENDED AND RESTATED STOCK INCENTIVE PLAN
On February 27, 2020 (the Transaction Date), Seaspan Corporation (Seaspan) completed its holding company reorganization (the Reorganization). The Reorganization was effected pursuant to the Agreement and Plan of Merger, dated as of November 20, 2019, as amended (the Merger Agreement), by and among Seaspan, Atlas Corp., a wholly owned subsidiary of Seaspan (Atlas or the Company), and Seaspan Holdco V Ltd., a wholly owned subsidiary of Atlas (Merger Sub). Under the terms of the Merger Agreement, at the effective time of the Merger, Merger Sub merged with and into Seaspan (the Merger), and the separate corporate existence of Merger Sub ceased, with Seaspan continuing as the surviving corporation in the Merger and a direct, wholly owned subsidiary of Atlas. In connection with the Reorganization, all outstanding Seaspan common shares were canceled, and Atlas issued, in respect of each canceled Seaspan common share, one common share of Atlas (common share) to the holder of such canceled Seaspan common share.
As of the Transaction Date, responsibility for the Seaspan Stock Incentive Plan (the Plan), including administration of the Plan, was assumed by Atlas, and common shares of Atlas will be issued to participants in the Plan in connection with all awards granted under the Plan outstanding as of the Transaction Date. The term Plan also refers to the Amended and Restated Stock Incentive Plan, as assumed by Atlas in connection with the Reorganization.
SECTION 1. Purpose of the Plan.
The Plan is intended to promote the interests of Company, by encouraging Employees, Consultants and Directors to acquire or increase their equity interest in the Company and to provide a means whereby they may develop a sense of proprietorship and personal involvement in the development and financial success of the Company, and to encourage them to remain with and devote their best efforts to the business of the Company, thereby advancing the interests of the Company and its stockholders. The Plan is also contemplated to enhance the ability of the Company and its Affiliates to attract and retain the services of individuals who are essential for the growth and profitability of the Company.
SECTION 2. Definitions.
As used in the Plan, the following terms shall have the meanings set forth below:
Affiliate means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with, the Person in question. As used herein, the term control 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 ownership of voting securities, by contract or otherwise.
Award means an Option, Restricted Stock, Phantom Share or Other Stock-Based Award.
Award Agreement means any written or electronic agreement, contract, instrument or document evidencing any Award, which may, but need not, be executed or acknowledged by a Participant.
Board means the Board of Directors of the Company, as constituted from time to time.
Code means the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations thereunder.
Committee means the administrator of the Plan in accordance with Section 3, and shall include reference to the Compensation Committee of the Board (or any other committee of the Board designated, from time to time, by the Board to act as the Committee under the Plan), the Board or a subcommittee of the Board, as applicable.
1
Consultant means any individual who is not an Employee or a Director and who provides consulting, advisory or other similar services to the Company or a subsidiary of the Company.
Director means any member of the Board who is not an Employee.
Employee means any employee of the Company or an Affiliate.
Exchange Act means the Securities Exchange Act of 1934, as amended.
Fair Market Value means, as of any applicable date, the last reported sales price for a Share on the New York Stock Exchange (or such other national securities exchange which constitutes the principal trading market for the Shares) for the applicable date as reported by such reporting service approved by the Committee; provided, however, that if Shares shall not have been quoted or traded on such applicable date, Fair Market Value shall be determined based on the next preceding date on which they were quoted or traded, or, if deemed appropriate by the Committee, in such other manner as it may determine to be appropriate. In the event the Shares are not publicly traded at the time a determination of its Fair Market Value is required to be made hereunder, the determination of Fair Market Value shall be made in good faith by the Committee.
Option means a stock option granted under the Plan.
Other Stock-Based Award means an Award granted pursuant to Section 6(d) of the Plan.
Participant means any Employee, Consultant or Director granted an Award under the Plan.
Person means individual, corporation, partnership, limited liability company, association, joint-stock company, trust, unincorporated organization, government or political subdivision thereof or other entity.
Phantom Shares means an Award of the right to receive Shares, cash equal to the Fair Market Value of such Shares or any combination thereof, in the Committees discretion.
Restricted Period means the period established by the Committee with respect to an Award during which the Award either remains subject to forfeiture or is not exercisable by the Participant, as the case may be.
Restricted Stock means any Share prior to the lapse of the Restricted Period with respect to such Shares.
Rule 16b-3 means Rule 16b-3 promulgated by the SEC under the Exchange Act, or any successor rule or regulation thereto as in effect from time to time.
SEC means the Securities and Exchange Commission or any successor thereto.
Shares or Common Shares or Common Stock means the common shares of the Company and such other securities or property as may become the subject of Awards under the Plan.
SECTION 3. Administration.
(a) The Committee. The Plan shall be administered by the Board or such committee of the Board as designated, from time to time, by the Board to act as the Committee under the Plan.
(b) Committee Powers. A majority of the Committee shall constitute a quorum, and the acts of the members of the Committee who are present at any meeting thereof at which a quorum is present, or acts unanimously approved by the members of the Committee in writing, shall be the acts of the Committee. Subject to the terms of the Plan and applicable law, and in addition to other express powers and authorizations conferred on the Committee by the Plan, the Committee shall have full power and authority to: (i) designate Participants; (ii) determine the type or types of
2
Awards to be granted to a Participant; (iii) determine the number of Shares to be covered by, or with respect to which payments, rights, or other matters are to be calculated in connection with, Awards; (iv) determine the terms and conditions of any Award; (v) determine whether, to what extent, and under what circumstances Awards may be settled or exercised in cash, Shares, other securities, other Awards or other property, or canceled, forfeited, or suspended and the method or methods by which Awards may be settled, exercised, canceled, forfeited, or suspended; (vi) interpret and administer the Plan and any instrument or agreement relating to an Award made under the Plan; (vii) establish, amend, suspend, or waive such rules and regulations and appoint such agents as it shall deem appropriate for the proper administration of the Plan; and (viii) make any other determination and take any other action that the Committee deems necessary or desirable for the administration of the Plan. Unless otherwise expressly provided in the Plan, all designations, determinations, interpretations, and other decisions under or with respect to the Plan or any Award shall be within the sole discretion of the Committee, may be made at any time and shall be final, conclusive, and binding upon all Persons, including the Company, any Subsidiary, any Participant, any holder or beneficiary of any Award, any stockholder and any other Person.
(c) Delegation to a Subcommittee. The Committee may, subject to any applicable law, regulatory, securities exchange or other similar restrictions, delegate to one or more members of the Board or officers of the Company (the subcommittee) the authority to administer the Plan as to Awards to Employees and Consultants who are not subject to Section 16(b) of the Exchange Act. The Committee may impose such limitations and restrictions, in addition to any required restrictions/limitations, as the Committee may determine in its sole discretion. Any grant made pursuant to such a delegation shall be subject to all of the provisions of the Plan concerning this type of Award.
SECTION 4. Shares Available for Awards.
(a) Shares Available. Subject to adjustment as provided in paragraph (c) below, the number of Shares that may be issued with respect to Awards granted under the Plan shall be 5,000,000. If an Award is forfeited or otherwise lapses, expires, terminates or is canceled without the actual delivery of Shares or is settled in cash, then the Shares covered by such Award, to the extent of such forfeiture, expiration, lapse, termination, cancellation or cash settlement, shall again be Shares that may be issued with respect to Awards granted under the Plan. Shares tendered to or withheld by the Company to satisfy its tax withholding obligations or the exercise price shall be available for issuance under future Awards, subject to the overall limitation provided in the first sentence above.
(b) Sources of Shares Deliverable Under Awards. Any Shares delivered pursuant to an Award may consist, in whole or in part, of authorized and unissued Shares or of treasury Shares.
(c) Adjustments. In the event of a stock dividend or stock split with respect to Shares, the number of Shares with respect to which Awards may be granted, the number of Shares subject to outstanding Awards and the grant or exercise price with respect to outstanding Awards automatically shall be proportionately adjusted, without action by the Committee; provided, however, such automatic adjustment shall be evidenced by written addendums to the Plan and Award Agreements prepared by the Company and, with respect to Options, shall be in accordance with the Treasury Regulations concerning Incentive Stock Options. Further, in the event that the Committee determines that any distribution (whether in the form of cash, Shares, other securities, or other property), recapitalization, reorganization, merger, spin-off, combination, repurchase, or exchange of Shares or other securities of the Company, or other similar corporate transaction or event affects the Shares such that an adjustment is determined by the Committee to be appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan, then the Committee shall, in such manner as it may deem equitable, adjust any or all of (i) the number and type of Shares (or other securities or property) with respect to which Awards may be granted, (ii) the number and type of Shares (or other securities or property) subject to outstanding Awards, and (iii) the grant or exercise price with respect to any Award or, if deemed appropriate, make provision for a cash payment to the holder of an outstanding Award; provided that the number of Shares subject to any Award denominated in Shares shall always be a whole number.
3
SECTION 5. Eligibility.
Any Employee, Consultant or Director shall be eligible to be designated a Participant by the Committee. No individual shall have any right to be granted an Award pursuant to this Plan.
SECTION 6. Awards.
(a) Options. Subject to the provisions of the Plan, the Committee shall have the authority to determine Participants to whom Options shall be granted, the number of Shares to be covered by each Option, the purchase price therefor and the conditions and limitations applicable to the exercise of the Option, including the following terms and conditions and such additional terms and conditions, as the Committee shall determine, that are not inconsistent with the provisions of the Plan. An Option may not be granted only to those Persons with respect to whom, for purposes of Section 409A, the Shares are stock of the service recipient.
(1) Exercise Price. The purchase price per Share purchasable under an Option shall be determined by the Committee at the time the Option is granted, but shall not be less than the Fair Market Value per Share on the effective date of such grant.
(2) Time and Method of Exercise. The Committee shall determine and provide in the Award Agreement or by action subsequent to the grant the time or times at which an Option may be exercised in whole or in part, and the method or methods by which, and the form or forms (which may include, without limitation, cash, check acceptable to the Company, Shares already-owned, Shares issuable upon Option exercise, a cashless-broker exercise (through procedures approved by the Committee), or any combination thereof, having a Fair Market Value on the exercise date equal to the relevant exercise price) in which payment of the exercise price and tax withholding obligation with respect thereto may be made or deemed to have been made. The Committee shall also determine the performance or other conditions, if any, that must be satisfied before all or part of an Option may vest and be exercised. No portion of an Option which is unexercisable at termination of the Participants employment or service, as applicable, shall thereafter become exercisable, except as may be otherwise provided by the Committee either in the Award Agreement or by action following the grant of the Option.
(b) Restricted Stock. Subject to the provisions of the Plan, the Committee shall have the authority to determine the Participants to whom Restricted Stock shall be granted, the number of Shares of Restricted Stock to be granted to each such Participant, the duration of the Restricted Period during which, and the conditions or other criteria, including the passage of time, under which the Restricted Stock may vest or be forfeited to the Company, and the other terms and conditions of such Awards, if any.
(1) Dividends. Dividends paid on Restricted Stock may be paid directly to the Participant, may be subject to risk of forfeiture and/or transfer restrictions during any period established by the Committee or sequestered and held in a bookkeeping cash account (with or without interest) or reinvested on an immediate or deferred basis in additional shares of Common Stock, which credit or shares may be subject to the same restrictions as the underlying Award or such other restrictions, all as determined by the Committee in its discretion, as provided in the Award Agreement.
(2) Registration. Any Restricted Stock may be evidenced in such manner as the Committee shall deem appropriate, including, without limitation, book-entry registration or issuance of a stock certificate or certificates. In the event any stock certificate is issued in respect of Restricted Stock granted under the Plan, such certificate shall be registered in the name of the Participant and shall bear an appropriate legend referring to the terms, conditions, and restrictions applicable to such Restricted Stock.
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(3) Forfeiture and Restrictions Lapse. Except as otherwise determined by the Committee or the terms of the Award Agreement, upon a Participants termination of employment or service (as determined under criteria established by the Committee) for any reason during the applicable Restricted Period, all Restricted Stock shall be forfeited by the Participant and re-acquired by the Company. The Committee may waive in whole or in part any or all remaining restrictions with respect to such Participants Restricted Stock. Unrestricted Shares, evidenced in such manner as the Committee shall deem appropriate, shall be issued to the holder of Restricted Stock promptly after the applicable restrictions have lapsed or otherwise been satisfied.
(4) Restrictions. Restricted Stock shall be subject to such restrictions on transferability and other restrictions as the Committee may impose (including, without limitation, restrictions on the right to vote Restricted Stock or the right to receive dividends on the Restricted Stock). These restrictions may lapse separately or in combination at such times, pursuant to such circumstances, in such installments, or otherwise, as the Committee determines at the time of the grant of the Award or thereafter. During the Restricted Period, Restricted Stock will be subject to such limitations on transfer as necessary to comply with Section 83 of the Code.
(c) Phantom Shares. The Committee shall have the authority to grant Awards of Phantom Shares to Participants upon such terms and conditions as the Committee may determine.
(1) Terms and Conditions. Each Phantom Share Award shall constitute an agreement by the Company to issue or transfer a specified number of Shares or pay an amount of cash equal to the Fair Market Value of a specified number of Shares, or a combination thereof to the Participant in the future, subject to the fulfillment during the Restricted Period of such conditions, including the passage of time, if any, as the Committee may specify at the date of grant. During the Restricted Period, the Participant shall not have any rights of ownership in the Phantom Shares and shall not have any right to vote such shares.
(2) Dividend Equivalents. Any Phantom Share award may provide, in the discretion of the Committee, that any or all dividends or other distributions paid on Shares during the Restricted Period be credited in a cash bookkeeping account (with or without interest) or that equivalent additional Phantom Shares be awarded, which account or Phantom Shares may be subject to the same restrictions as the underlying Award or such other restrictions as the Committee may determine.
(3) Forfeiture and Restrictions Lapse. Except as otherwise determined by the Committee or set forth in the Award Agreement, upon a Participants termination of employment or service (as determined under criteria established by the Committee) for any reason during the applicable Restricted Period, all Phantom Shares shall be forfeited by the Participant. The Committee may waive in whole or in part any or all remaining restrictions with respect to such Participants Phantom Shares.
(4) Payment of Phantom Shares. Phantom Shares shall be paid in cash and/or in Shares, in the sole discretion of the Committee, in a lump sum following the close of the Restricted Period.
(d) Other Stock-Based Awards. The Committee may grant to Participants an Other Stock-Based Award, which shall consist of an Award denominated or payable in, valued in whole or in part by reference to, or otherwise based on or related to, Shares. Subject to the terms of the Plan, the Committee shall determine the terms and conditions of any such Other Stock-Based Award. An Other Stock-Based Award may be paid in cash, Shares or any combination thereof in the discretion of the Committee.
(e) General.
(1) Awards May Be Granted Separately or Together. Awards may, in the discretion of the Committee, be granted either alone or in addition to, in tandem with, any other Award granted under the Plan or any award granted under any other plan of the Company or any Subsidiary. Awards granted in addition to or in tandem with other Awards or awards granted under any other plan may be granted either at the same time as or at a different time from the grant of such other Awards or awards.
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(2) Limits on Transfer of Awards.
(A) Except as provided in paragraph (C) below, each Award, and each right under any Award, shall be exercisable only by the Participant during the Participants lifetime, or if permissible under applicable law, by the Participants guardian or legal representative as determined by the Committee.
(B) Except as provided in paragraph (C) below, no Award and no right under any such Award may be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by a Participant otherwise than by will or by the laws of descent and distribution, and any such purported prohibited assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable against the Company or any Subsidiary.
(C) To the extent specifically approved in writing by the Committee, an Award may be transferred to immediate family members or related family trusts, limited partnerships or similar entities on such terms and conditions as the Committee may establish or approve.
(3) Terms of Awards. The term of each Award shall be for such period as may be determined by the Committee; provided, that in no event shall the term of any Award exceed a period of 10 years from the date of its grant.
(4) Share Certificate. All certificates for Shares or other securities of the Company or any Subsidiary delivered under the Plan pursuant to any Award or the exercise thereof shall be subject to such stop transfer orders and other restrictions as the Committee may deem advisable under the Plan or the rules, regulations, and other requirements of the SEC, any stock exchange upon which such Shares or other securities are then listed, and any applicable federal or state laws, and the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions.
(5) Consideration for Grants. Awards may be granted for no cash consideration or for such consideration as the Committee determines including, without limitation, such minimal cash consideration as may be required by applicable law.
(6) Delivery of Shares or other Securities and Payment by Participant of Consideration. No Shares or other securities shall be delivered pursuant to any Award until payment in full of any amount required to be paid pursuant to the Plan or the applicable Award Agreement (including, without limitation, any exercise price or tax withholding) is received by the Company. Such payment may be made by such method or methods and in such form or forms as the Committee shall determine, including, without limitation, cash, Shares, other securities, other Awards or other property, withholding of Shares, cashless exercise with simultaneous sale, or any combination thereof, provided that the combined value, as determined by the Committee, of all cash and cash equivalents and the Fair Market Value of any such Shares or other property so tendered to the Company, as of the date of such tender, is at least equal to the full amount required to be paid pursuant to the plan or the applicable Award Agreement to the Company.
SECTION 7. Amendment and Termination.
Except to the extent prohibited by applicable law and unless otherwise expressly provided in an Award Agreement or in the Plan:
(1) Amendments to the Plan. The Board or the Committee may amend, alter, suspend, discontinue, or terminate the Plan without the consent of any stockholder, Participant, other holder or beneficiary of an Award, or other Person.
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(2) Amendments to Awards. The Committee may waive any conditions or rights under, amend any terms of, or alter any Award theretofore granted, provided no change in any Award shall materially adversely affect the rights of a Participant under the Award without the consent of such Participant.
SECTION 8. General Provisions.
(a) No Rights to Awards. No Participant or other Person shall have any claim to be granted any Award, there is no obligation for uniformity of treatment of Participants, or holders or beneficiaries of Awards and the terms and conditions of Awards need not be the same with respect to each recipient.
(b) Tax Withholding. The Company or any Affiliate is authorized to withhold from any Award, from any payment due or transfer made under any Award or from any compensation or other amount owing to a Participant the amount (in cash, Shares, or other property) of any taxes required to be withheld by the Company or Affiliate in respect of the Award, its exercise, the lapse of restrictions thereon, or any payment or transfer under the Award and to take such other action as may be necessary in the opinion of the Company to satisfy all of its obligations for the payment of such taxes. In addition, the Committee may provide, in an Award Agreement, that the Participant may direct the Company to satisfy such Participants tax withholding obligations through the withholding of Shares otherwise to be acquired upon the exercise or payment of such Award.
(c) No Right to Employment or Retention. The grant of an Award shall not be construed as giving a Participant the right to be retained in the employ of the Company or any Affiliate or under any other service contract with the Company or any Affiliate, or to remain on the Board. Further, the Company or an Affiliate may at any time dismiss a Participant from employment or terminate any contractual agreement or relationship with any Consultant, free from any liability or any claim under the Plan, with or without cause, unless otherwise expressly provided in the Plan, in any Award Agreement or any other agreement or contract between the Company or an Affiliate and the affected Participant. If a Participants employer ceases to be an Affiliate, such Participant shall be deemed to have terminated employment for purposes of the Plan, unless specifically provided otherwise in the Award Agreement.
(d) Change of Control, Unusual Transactions or Events. In the event of any distribution (whether in the form of cash, Shares, other securities, or other property), recapitalization, reorganization, merger, spin-off, combination, repurchase, or exchange of Shares or other securities of the Company, or any corporate transaction, as defined in Treasury Regulations §1.424-1(a)(3), change of ownership, or effective control of a corporation or change of ownership of a substantial portion of the assets of a corporation, as defined in the Treasury Regulations under Section 409A of the Code, or event or any unusual or nonrecurring transactions or events affecting the Company, any affiliate of the Company, or the financial statements of the Company or any affiliate, or of changes in applicable laws, regulations or accounting principles, and whenever the Committee determines that action is appropriate in order to prevent the dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan or with respect to any Award under the Plan, to facilitate such transactions or events or to give effect to such changes in laws, regulations or principles, the Committee, in its sole discretion and on such terms and conditions as it deems appropriate, either by amendment of the terms of any outstanding Awards or by action taken prior to the occurrence of such transaction or event and either automatically or upon the Participants request, is hereby authorized to take any one or more of the following actions:
(1) To provide for either (A) termination of any such Award in exchange for an amount of cash, if any, equal to the amount that would have been attained upon the exercise of such Award or realization of the Participants rights (and, for the avoidance of doubt, if as of the date of the occurrence of the transaction or event described in this Section 8(d) the Committee determines in good faith that no amount would have been attained upon the exercise of such Award or realization of the Participants rights, then such Award may be terminated by the Company without payment) or (B) the replacement of such Award with other rights or property selected by the Committee in its sole discretion;
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(2) To provide that such Award be assumed by the successor or survivor corporation, or a parent or subsidiary thereof, or shall be substituted for by similar options, rights or awards covering the stock of the successor or survivor corporation, or a parent or subsidiary thereof, with appropriate adjustments as to the number and kind of shares and prices; and
(3) To make adjustments in the number and type of Shares (or other securities or property) subject to outstanding Awards, and in the number and kind of outstanding Awards and/or in the terms and conditions of (including the grant or exercise price), and the criteria included in, outstanding Awards and Awards which may be granted in the future;
(4) To provide that such Award shall be exercisable or payable or fully vested with respect to all shares covered thereby, notwithstanding anything to the contrary in the Plan or the applicable Award Agreement; and
(5) To provide that the Award cannot vest, be exercised or become payable after such event.
(e) Governing Law. The validity, construction, and effect of the Plan and any rules and regulations relating to the Plan shall be determined in accordance with the laws of New York and applicable U.S. federal law.
(f) Severability. If any provision of the Plan or any Award is or becomes or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any Person or Award, or would disqualify the Plan or any Award under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to the applicable laws, or if it cannot be construed or deemed amended without, in the determination of the Committee, materially altering the intent of the Plan or the Award, such provision shall be stricken as to such jurisdiction, Person or Award and the remainder of the Plan and any such Award shall remain in full force and effect.
(g) Other Laws. The Committee may refuse to issue or transfer any Shares or other consideration under an Award, permit the exercise of an Award and/or the satisfaction of its tax withholding obligation in the manner elected by the Participant, holder or beneficiary if, acting in its sole discretion, it determines that the issuance of transfer or such Shares or such other consideration, the manner of exercise or satisfaction of the tax withholding obligation might violate any applicable law or regulation.
(h) No Trust or Fund Created. Neither the Plan nor the Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company or any Affiliate and a Participant or any other Person. To the extent that any Person acquires a right to receive payments from the Company or any Affiliate pursuant to an Award, such right shall be no greater than the right of any general unsecured creditor of the Company or any Subsidiary.
(i) No Fractional Shares. No fractional Shares shall be issued or delivered pursuant to the Plan or any Award, and the Committee shall determine whether cash, other securities, or other property shall be paid or transferred in lieu of any fractional Shares or whether such fractional Shares or any rights thereto shall be cancelled, terminated, or otherwise eliminated.
(j) Headings. Headings are given to the Section and subsections of the Plan solely as a convenience to facilitate reference. Such headings shall not be deemed in any way material or relevant to the construction or interpretation of the plan or any provision thereof.
SECTION 9. Compliance with Section 409A. Nothing in the Plan or any Award Agreement shall operate or be construed to cause the Plan or an Award to fail to comply with the requirements of Section 409A of the Internal Revenue Code. With respect to an Award that is subject to Section 409A of the Code, notwithstanding anything in the Plan or the Award Agreement to the contrary,
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(1) payment under the Plan may not be made earlier than as permitted by Section 409A(a)(2) of the Code, i.e., a separation from service, death, a specified time (or fixed schedule) specified at the date of the deferral, a change in ownership, control or effective control, as provided in regulations or other guidance under Section 409A, or the occurrence of an unforeseen event;
(2) the time or schedule of any payment under the Plan may not be accelerated except as provided in regulations or guidance issued under Section 409A;
(3) no elections may be made by a Participant to defer compensation under the Plan; and
(4) no elections may be made by a Participant to change the time and form of payment under the Plan.
SECTION 10. Effective Date of Plan.
The Plan initially became effective as of the date it was approved by the Board of Directors of Seaspan.
SECTION 11. Term of the Plan.
The Plan initially became effective on the date of its approval by the Board of Directors of Seaspan and shall continue until the earlier of (a) the date terminated by the Board and (b) the date Shares are no longer available for the payment of Awards under the Plan. However, unless otherwise expressly provided in the Plan or in an applicable Award Agreement, any Award granted prior to such termination, and the authority of the Board or the Committee to amend, alter, adjust, suspend, discontinue, or terminate any such Award or to waive any conditions or rights under such Award, shall extend beyond such termination date.
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PLAN ADOPTION AND AMENDMENTS/ADJUSTMENTS
SUMMARY PAGE
Date of Board or Other Action |
Action |
Section/Effect of Amendment |
Date of
Shareholder Approval |
|||
December 23, 2005 | Initial Plan Adoption | N/A | N/A | |||
October 23, 2010 | Amend Plan | Section 2/modify definition of Consultant; Section 4(a)/increase from 1 million to 2 million | N/A | |||
December 23, 2015 | Amend & Restate Plan | Section 4(a)/increase from 2 million to 3 million; Section 11/change plan term from 10 years to indefinite | N/A | |||
December 19, 2017 | Amend & Restate Plan | Section 4(a)/increase from 3 million to 5 million | N/A | |||
February 27, 2020 | Amend & Restate Plan | To give effect to the assumption of the Plan by Atlas in connection with the Reorganization |
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Exhibit 99.1
DESCRIPTION OF ATLAS COMMON SHARES
AND ATLAS PREFERRED SHARES
The following is a summary of the material terms of common shares and preferred shares of Atlas Corp. (Atlas). Because the following is only a summary, it may not contain all the information that is important to you. The following summary is qualified by reference to the Republic of the Marshall Islands Business Corporations Act (the BCA) and Atlas Amended and Restated Articles of Incorporation (Atlas articles of incorporation), Atlas Amended and Restated Bylaws (Atlas bylaws) and the Statement of Designation for each series of Atlas preferred shares.
Authorized Capital
Under the Atlas articles of incorporation, Atlas authorized shares consist of 400,000,000 common shares, par value US$0.01 per share, and 150,000,000 preferred shares, par value US$0.01 per share.
Atlas Common Shares
Dividends
Under the Atlas articles of incorporation, holders of Atlas common shares may receive quarterly dividends. Declaration and payment of any dividend is subject to the discretion of Atlas board of directors. The time and amount of dividends will depend upon Atlas financial condition, Atlas operations, Atlas cash requirements and availability, debt repayment obligations, capital expenditure needs, restrictions in Atlas debt instruments and Atlas preferred shares, industry trends, the provisions of the Republic of the Marshall Islands law affecting the payment of distributions to shareholders and other factors. The BCA generally prohibits the payment of dividends other than from paid-in capital in excess of par value and Atlas earnings or while Atlas is insolvent or would be rendered insolvent on paying the dividend.
Voting
Atlas common shares each have one vote. At all meetings of shareholders there must be present either in person or by proxy holders of record of at least a majority of Atlas common shares issued and outstanding and entitled to vote at such meetings in order to constitute a quorum at meetings of Atlas shareholders.
Anti-Takeover Effects of Certain Provisions of Atlas Articles of Incorporation and Bylaws
Certain provisions of Atlas articles of incorporation and Atlas bylaws, which are summarized in the following paragraphs, may have an anti-takeover effect and may delay, defer or prevent a tender offer or takeover attempt that a shareholder might consider in its best interest, including those attempts that might result in a premium over the market price for the shares held by shareholders.
Removal of Directors; Vacancies
Atlas articles of incorporation and Atlas bylaws provide that directors may be removed for cause upon the affirmative vote of holders of a majority of the outstanding Atlas common shares entitled to vote in the election of directors. In addition, Atlas articles of incorporation and Atlas bylaws also provide that any vacancies on Atlas board of directors and newly created directorships may be filled only by the affirmative vote of a majority of the remaining directors, although less than a quorum.
No Cumulative Voting
Under the BCA, shareholders are not entitled to the right to cumulate votes in the election of directors unless the articles of incorporation provide otherwise. Atlas articles of incorporation prohibit cumulative voting.
Calling of Special Meetings of Shareholders
Atlas bylaws provide that special meetings of Atlas shareholders may be called only by the chairman of Atlas board of directors, by written notice to the board of directors by any two members of the executive committee, by resolution of Atlas board of directors, or if applicable, by the longest serving co-chairman of Atlas board of directors.
Advance Notice Requirements for Shareholder Proposals and Director Nominations
Atlas bylaws provide that shareholders seeking to nominate candidates for election as directors or to bring business before an annual meeting of shareholders must provide timely notice of their proposal in writing to the corporate secretary.
Generally, to be timely, a shareholders notice must be received at Atlas principal executive offices not less than 90 days nor more than 120 days prior to the first anniversary date of the date on which Atlas first mailed its proxy materials for the previous years annual meeting. Atlas bylaws also specify requirements as to the form and content of a shareholders notice. These provisions may impede shareholders ability to bring matters before an annual meeting of shareholders or make nominations for directors at an annual meeting of shareholders.
Amendments to Atlas Bylaws
Atlas articles of incorporation and Atlas bylaws grant Atlas board of directors the authority to amend and repeal Atlas bylaws without a shareholder vote in any manner not inconsistent with the laws of the Republic of the Marshall Islands and Atlas articles of incorporation. Holders of Atlas common shares may amend Atlas bylaws by a vote of not less than 66 2/3% of the shares entitled to vote.
Business Combinations
Atlas articles of incorporation contain provisions that prohibit it from engaging in a business combination with an interested shareholder for a period of three years following the date of the transaction in which the person became an interested shareholder, unless, in addition to any other approval that may be required by applicable law:
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prior to the date of the transaction that resulted in the shareholder becoming an interested shareholder, Atlas board of directors approved either the business combination or the transaction that resulted in the shareholder becoming an interested shareholder; |
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upon consummation of the transaction that resulted in the shareholder becoming an interested shareholder, the interested shareholder owned at least 85% of Atlas voting shares outstanding at the time the transaction commenced, excluding for purposes of determining the number of shares outstanding those shares owned (i) by persons who are directors and officers, and (ii) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; |
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after the date of the transaction that resulted in the shareholder becoming an interested shareholder, the business combination is approved by Atlas board of directors and authorized at an annual or special meeting of shareholders, and not by written consent, by the affirmative vote of at least 66 2/3% of Atlas outstanding voting shares that are not owned by the interested shareholder; or |
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the interested shareholder is Dennis Washington, Copper Lion, Inc. or Fairfax Financial Holdings Limited or any of their affiliates, or any person that purchases shares from any of those person or any of their affiliates. |
Generally, a business combination includes any merger or consolidation of Atlas or any direct or indirect majority-owned subsidiary of Atlas with (a) the interested shareholder or any of its affiliates or (b) with any corporation, partnership, unincorporated association or other entity if the merger or consolidation is caused by the interested shareholder. Generally, an interested shareholder is any person or entity that (a) owns 15% or more of Atlas outstanding voting shares, (b) is an affiliate or associate of Atlas and was the owner of 15% or more of Atlas outstanding voting shares at any time within the three-year period immediately prior to the date on which it is sought to be determined whether such person is an interested shareholder or (c) the affiliates and associates of any person listed in (a) or (b), except that any person who owns 15% or more of Atlas outstanding voting shares as a result of action taken solely by Atlas shall not be an interested shareholder unless such person acquires additional voting shares, except as a result of further action by Atlas, not caused, directly or indirectly, by such person.
Dissenters Rights of Appraisal and Payment
Under the BCA, shareholders have the right to dissent from various corporate actions, including any merger or consolidation or sale of all or substantially all of the companys assets not made in the usual course of business, and receive payment of the fair value of their shares. However, the right of a dissenting shareholder to receive payment of the fair value of his or her shares shall not be available under the BCA for the shares of any class or series of stock, which shares, at the record date fixed to determine the shareholders entitled to receive notice of and to vote at the meeting of shareholders to act upon the agreement of merger or consolidation or any sale or exchange of all or substantially all of the assets of the company not made in the usual course of its business were listed on a securities exchange.
In the event of an amendment of the Atlas articles of incorporation, a shareholder also has the right to dissent and receive payment for his or her shares if the amendment alters certain rights in respect of those shares. The dissenting shareholder must follow the procedures set forth in the BCA to receive payment. In the event that Atlas and any dissenting shareholder fail to agree on a price for the shares, the BCA procedures involve, among other things, the institution of proceedings in the high court of the Republic of the Marshall Islands or in any appropriate court in any jurisdiction in which Atlas common shares are primarily traded on a local or national securities exchange.
Shareholders Derivative Actions
Under the BCA, any of Atlas shareholders may bring an action in Atlas name to procure a judgment in Atlas favor, also known as a derivative action, provided that the shareholder bringing the action is a holder of common shares both at the time the derivative action is commenced and at the time of the transaction to which the action relates.
Limitations on Liability and Indemnification of Officers and Directors
The BCA authorizes corporations to limit or eliminate the personal liability of directors and officers to corporations and their shareholders for monetary damages for breaches of directors fiduciary duties. Atlas articles of incorporation include a provision that eliminates the personal liability of directors or officers for monetary damages for actions taken as a director or officer to the fullest extent permitted by law.
Atlas articles of incorporation provide that Atlas must indemnify its directors and officers to the fullest extent authorized by law. Atlas is also expressly authorized to advance certain expenses (including attorneys fees and disbursements and court costs) to Atlas directors and officers and carry directors and officers insurance providing indemnification for Atlas directors, officers and certain employees for some liabilities. Atlas believes that these indemnification provisions and insurance are useful to attract and retain qualified directors and executive officers.
The limitation of liability and indemnification provisions in Atlas articles of incorporation may discourage shareholders from bringing a lawsuit against directors for breach of their fiduciary duty. These provisions may also have the effect of reducing the likelihood of derivative litigation against directors and officers, even though such an action, if successful, might otherwise benefit Atlas and its shareholders. In addition, your investment may be adversely affected to the extent Atlas pays the costs of settlement and damage awards against directors and officers pursuant to these indemnification provisions.
Exchange Listing
Atlas common shares are listed on the New York Stock Exchange (the NYSE) under the symbol ATCO.
Transfer Agent and Registrar
American Stock Transfer & Trust Company, LLC serves as registrar and transfer agent for Atlas common shares.
Atlas Preferred Shares
General
Atlas articles of incorporation authorize Atlas board of directors to establish one or more series of preferred shares and to determine, with respect to any series of preferred shares, the terms and rights of that series, including, among other things:
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the designation of the series; |
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the number of shares in the series; |
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the dividend terms and conditions of the series; |
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any redemption rights of, or sinking fund for, the series; |
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the amounts payable on shares of the series in the event of any voluntary or involuntary liquidation, dissolution or winding-up of the affairs of Atlas; |
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whether the shares of the series will be convertible into shares of any other class or series, or any other security, of Atlas or any other corporation, and, if so, the terms and conditions upon which the conversion may be made; |
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restrictions on the issuance of shares of the same series or of any other class or series; and |
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the voting rights, if any, of the holders of the series. |
The following series of Atlas preferred shares are issued and outstanding: (i) 7.95% Cumulative Redeemable Perpetual Preferred Shares Series D (Atlas Series D Preferred Shares), (ii) 8.25% Cumulative Redeemable Perpetual Preferred Shares Series E (Atlas Series E Preferred Shares), (iii) 8.20% Cumulative Redeemable Perpetual Preferred Shares Series G (Atlas Series G Preferred Shares), (iv) 7.875% Cumulative Redeemable Perpetual Preferred Shares Series H (Atlas Series H Preferred Shares), and (v) Fixed-To-Floating Cumulative Redeemable Perpetual Preferred Shares Series I (Atlas Series I Preferred Shares and together with Atlas Series D Preferred Shares, Atlas Series E Preferred Shares, Atlas Series G Preferred Shares, and Atlas Series H Preferred Shares, Atlas preferred shares).
American Stock Transfer & Trust Company, LLC is the paying agent (the Paying Agent) and the registrar and transfer agent (the Registrar and Transfer Agent) for each series of the Atlas preferred shares.
Ranking
Each series of Atlas preferred shares ranks:
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senior to (i) all classes of common shares and (ii) any other class or series of capital stock established by Atlas 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 Atlas preferred shares as to dividend distributions and distributions upon any liquidation event (collectively referred to with Atlas common shares as Junior Securities); |
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on a parity with (i) each series of Atlas preferred shares and (iv) any other class or series of capital stock established by Atlas Board of Directors, the terms of which class or series are not expressly subordinated or senior to the Atlas preferred shares as to dividend distributions and distributions upon any liquidation event (collectively referred to as Parity Securities); and |
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junior to any other class or series of capital stock established by Atlas Board of Directors, the terms of which class or series expressly provide that it ranks senior to the Atlas preferred shares as to dividend distributions and distributions upon any Liquidation Event (collectively referred to as Senior Securities). |
Under each Statement of Designation of the Atlas preferred shares, Atlas may issue Junior Securities from time to time in one or more series without the consent of the holders of the Atlas preferred shares. Atlas 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. Atlas board of directors
will also determine the number of shares constituting each series of securities. Atlas ability to issue additional Parity Securities or Senior Securities is limited as described under each of Atlas Series D Preferred SharesVoting Rights, Atlas Series E Preferred SharesVoting Rights, Atlas Series G Preferred SharesVoting Rights, Atlas Series H Preferred SharesVoting Rights, and Atlas Series I Preferred SharesVoting Rights below.
Net Worth Covenant
The Statement of Designation related to each series of Atlas preferred shares includes a restrictive covenant that Atlas shall not permit the Net Worth to Preferred Stock Ratio (as defined below) to be less than or equal to 1.00.
Atlas will not declare, pay or set apart for payment any cash dividend on any Junior Securities unless Atlas is in compliance with the foregoing covenant. Compliance with the foregoing covenant shall be measured on the last day of each of Atlas fiscal quarters. Within 60 days after the end of each fiscal quarter, Atlas shall deliver to the Registrar and Transfer Agent an officers certificate confirming compliance with the covenant described above. Each such certificate will be made available to the holders of Atlas preferred shares upon request to the Registrar and Transfer Agent. Atlas shall mail, within five Business Days of the discovery thereof, to all holders of Atlas preferred shares and the Registrar and Transfer Agent, notice of any default in compliance with the covenant described above.
For purposes of the Net Worth to Preferred Stock Ratio covenant, the following definitions shall apply:
Cash and Cash Equivalents means, as of a given date, Atlas cash and cash equivalents as determined in accordance with U.S. GAAP.
Common Stock means any of Atlas capital stock that is not Preferred Stock.
Intangible Assets means, in respect of Atlas as of a given date, the intangible assets of Atlas of the types, if any, presented in Atlas consolidated balance sheet.
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 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 Atlas as of a given date, the non-recourse liabilities as described in subparts (a)-(h) of the definition of Total Borrowings and of the types, if any, presented in Atlas consolidated financial statements.
Preferred Stock means any of Atlas 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 Atlas affairs, over shares of Atlas Common Stock.
Preferred Stock Amount means, in respect of any series of Preferred Stock, the sum, without duplication, of (x) the aggregate liquidation preference of the outstanding shares of such Preferred Stock 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 Stock as of the relevant measurement date.
Total Assets means, in respect of Atlas on a consolidated basis, as of a given date the aggregate of the following, without duplication:
(a) |
all of the assets of Atlas of the types presented on its consolidated balance sheet; less |
(b) |
Cash and Cash Equivalents; less |
(c) |
Non-Recourse Liabilities; and less |
(d) |
assets under any vessel construction or ship purchase agreement (including novation and assignment and assumption agreements) that Atlas is required to record on its books under U.S. GAAP even though Atlas is not the legal owner of the vessel or legally obligated to take delivery of the vessel. |
Total Borrowings means, in respect of Atlas 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) above; 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 Atlas to the extent that such guaranteed indebtedness is determined and given a value in respect of Atlas on a consolidated basis in accordance with U.S. GAAP; less |
(i) |
Cash and Cash Equivalents; less |
(j) |
Non-Recourse Liabilities. |
Notwithstanding the foregoing, Total Borrowings shall not include any of the following:
(a) |
indebtedness or obligations arising from derivative transactions, such as protecting against interest rate or currency fluctuations; and |
(b) |
indebtedness under any vessel construction or ship purchase agreement (including novation and assignment and assumption agreements) that Atlas is required to record on its books under U.S. GAAP even though Atlas is not the legal owner of the vessel or legally obligated to take delivery of the vessel. |
U.S. GAAP means generally accepted accounting principles in the United States of America.
No Sinking Fund
None of the Atlas preferred shares have the benefit of any sinking fund.
Exchange Listing
Atlas preferred shares are listed on the NYSE under the symbols ATCO-PD, ATCO-PE, ATCO-PG, ATCO-PH, and ATCO-PI, respectively.
For a further description of each series of Atlas preferred shares, see Atlas Series D Preferred Shares, Atlas Series E Preferred Shares, Atlas Series G Preferred Shares, Atlas Series H Preferred Shares, and Atlas Series I Preferred Shares below.
Atlas Series D Preferred Shares
The following description of the Atlas Series D Preferred Shares does not purport to be complete and is subject to, and qualified in its entirety by reference to, the provisions of Atlas articles of incorporation, including the Atlas Series D Statement of Designation designating the Atlas Series D Preferred Shares and setting forth the rights, preferences and limitations of the Atlas Series D Preferred Shares.
General
There are 20,000,000 Atlas Series D Preferred Shares authorized.
The Atlas Series D Preferred Shares will entitle the holders thereof to receive cumulative cash dividends when, as and if declared by Atlas board of directors out of legally available funds for such purpose. The Atlas Series D Preferred Shares will represent perpetual equity interests in Atlas and will not give rise to a claim for payment of a principal amount at a particular date. As such, the Atlas Series D Preferred Shares will rank junior to all of Atlas indebtedness and other liabilities with respect to assets available to satisfy claims against Atlas.
The Atlas Series D Preferred Shares will not be convertible into common shares or other of Atlas securities and will not have exchange rights or be entitled or subject to any preemptive or similar rights. The Atlas Series D Preferred Shares will not be subject to mandatory redemption or to any sinking fund requirements. The Atlas Series D Preferred Shares will be subject to redemption, in whole or in part, at Atlas option. See Redemption.
Liquidation Rights
The holders of outstanding Atlas Series D Preferred Shares will be entitled, in the event of any liquidation, dissolution or winding up of Atlas affairs, whether voluntary or involuntary, to receive the liquidation preference of $25.00 per share in cash plus an amount equal to accumulated and unpaid dividends thereon to the date fixed for payment of such amount (whether or not declared), and no more, before any distribution will be made to the holders of Atlas common shares or any other Junior Securities. A consolidation or merger of Atlas with or into any other entity, individually or in a series of transactions, will not be deemed a liquidation, dissolution or winding up of Atlas affairs for this purpose. In the event that Atlas assets available for distribution to holders of the outstanding Atlas Series D Preferred Shares and any Parity Securities are insufficient to permit payment of all required amounts, Atlas assets then remaining will be distributed among the Atlas Series D Preferred Shares and any Parity Securities, as applicable, ratably on the basis of their relative aggregate liquidation preferences. After payment of all required amounts to the holders of the outstanding Atlas Series D Preferred Shares and Parity Securities, Atlas remaining assets and funds will be distributed among the holders of the common shares and any other Junior Securities then outstanding according to their respective rights.
Voting Rights
The Atlas Series D Preferred Shares will have no voting rights except as set forth below or as otherwise provided by Marshall Islands law. In the event that six quarterly dividends, whether consecutive or not, payable on the Atlas Series D Preferred Shares are in arrears, the holders of the Atlas Series D Preferred Shares will have the right, voting as a class together with holders of any other 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 Atlas board of directors, and the size of Atlas board of directors will be increased as needed to accommodate such change (unless the size of Atlas 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 Atlas Series D Preferred Shares voted as a class for the election of such director). The right of such holders of Atlas Series D Preferred Shares to elect a member of Atlas board of directors will continue until such time as all dividends accumulated and in arrears on the Atlas Series D Preferred Shares have been paid in full, at which time such right will terminate, subject to
revesting in the event of each and every subsequent failure to pay six quarterly dividends as described above. Upon any termination of the right of the holders of the Atlas Series D Preferred Shares and 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 voting as a class will terminate immediately. Any director elected by the holders of the Atlas Series D Preferred Shares and any other Parity Securities shall be entitled to one vote on any matter before Atlas board of directors.
Unless Atlas has received the affirmative vote or consent of the holders of at least two-thirds of the outstanding Atlas Series D Preferred Shares, voting as a single class, Atlas may not adopt any amendment to its articles of incorporation that adversely alters the preferences, powers or rights of the Atlas Series D Preferred Shares.
In addition, unless Atlas has received the affirmative vote or consent of the holders of at least two-thirds of the outstanding Atlas Series D 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, Atlas may not: (i) issue any Parity Securities or Senior Securities if the cumulative dividends payable on outstanding Atlas Series D Preferred Shares are in arrears; or (ii) create or issue any Senior Securities.
On any matter described above in which the holders of the Atlas Series D Preferred Shares are entitled to vote as a class, such holders will be entitled to one vote per share. The Atlas Series D Preferred Shares held by Atlas or any of Atlas subsidiaries or affiliates will not be entitled to vote.
Dividends
General
Holders of Atlas Series D Preferred Shares will be entitled to receive, when, as and if declared by Atlas board of directors out of legally available funds for such purpose, cumulative cash dividends from the original issue date.
Dividend Rate
Dividends on the Atlas Series D Preferred Shares will be cumulative, commencing on the original issue date, and payable on each Dividend Payment Date, when, as and if declared by Atlas board of directors or any authorized committee thereof out of legally available funds for such purpose. Dividends on the Atlas Series D Preferred Shares will accrue at a rate of 7.95% per annum per $25.00 stated liquidation preference per Atlas Series D Preferred Share.
Dividend Payment Dates
The Dividend Payment Dates for the Atlas Series D Preferred Shares will be each January 30, April 30, July 30 and October 30. Dividends will accumulate in each dividend period from and including the preceding Dividend Payment Date or the initial issue date, as the case may be, to but excluding the applicable Dividend Payment Date for such dividend period, and dividends will accrue on accumulated dividends at the applicable dividend rate. If any Dividend Payment Date otherwise would fall on a day that is not a Business Day, declared dividends will be paid on the immediately succeeding Business Day without the accumulation of additional dividends. Dividends on the Atlas Series D Preferred Shares will be payable based on a 360-day year consisting of twelve 30-day months.
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.
Payment of Dividends
Not later than the close of business, New York City time, on each Dividend Payment Date, Atlas will pay those dividends, if any, on the Atlas Series D Preferred Shares that have been declared by Atlas board of directors to the holders of such shares as such holders names appear on Atlas stock transfer books maintained by the Registrar and Transfer Agent on the applicable Record Date. The applicable record date, or Record Date, will 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 will be such date as may be designated by Atlas board of directors in accordance with Atlas bylaws then in effect and the Atlas Series D Statement of Designation.
So long as the Atlas Series D Preferred Shares are held of record by the nominee of the Securities Depository, declared dividends will be paid to the Securities Depository in same-day funds on each Dividend Payment Date. The Securities Depository will credit accounts of its participants in accordance with the Securities Depositorys normal procedures. The participants will be responsible for holding or disbursing such payments to beneficial owners of the Atlas Series D Preferred Shares in accordance with the instructions of such beneficial owners.
No dividend may 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 (a) full cumulative dividends have been or contemporaneously are being paid or provided for on all outstanding Atlas Series D Preferred Shares and any Parity Securities through the most recent respective dividend payment dates and (b) Atlas is in compliance with the Net Worth to Preferred Stock Ratio described above. Accumulated dividends in arrears for any past dividend period may be declared by Atlas board of directors and paid on any date fixed by Atlas board of directors, whether or not a Dividend Payment Date, to holders of the Atlas Series D 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 Atlas Series D Preferred Shares and any Parity Securities have not been declared and paid, or if sufficient funds for the payment thereof have not been set apart, payment of accumulated dividends in arrears on the Atlas Series D Preferred Shares and any Parity Securities will be made in order of their respective dividend payment dates, commencing with the earliest. If less than all dividends payable with respect to all Atlas Series D Preferred Shares and any Parity Securities are paid, any partial payment will be made pro rata with respect to the Atlas Series D Preferred Shares and any Parity Securities entitled to a dividend payment at such time in proportion to the aggregate amounts remaining due in respect of such shares at such time. Holders of the Atlas Series D Preferred Shares will 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 under DividendsDividend Rate, no interest or sum of money in lieu of interest will be payable in respect of any dividend payment which may be in arrears on the Atlas Series D Preferred Shares.
Redemption
Optional Redemption
Atlas may redeem, at its option, in whole or in part, the Atlas Series D Preferred Shares at a redemption price in cash equal to $25.00 per share plus an amount equal to all accumulated and unpaid dividends thereon to the date of redemption, whether or not declared. Any such optional redemption shall be effected only out of funds legally available for such purpose.
Redemption Procedures
Atlas will give notice of any redemption by mail, postage prepaid, not less than 15 days and not more than 60 days before the scheduled date of redemption, to the holders of any shares to be redeemed as such holders names appear on Atlas stock transfer books maintained by the Registrar and Transfer Agent at the address of such holders shown therein. Such notice shall state: (a) the redemption date, (b) the number of Atlas Series D Preferred Shares to be redeemed and, if less than all outstanding Atlas Series D Preferred Shares are to be redeemed, the number (and the identification) of shares to be redeemed from such holder, (c) the redemption price, (d) the place where the Atlas Series D Preferred Shares are to be redeemed and shall be presented and surrendered for payment of the redemption price therefor and (e) that dividends on the shares to be redeemed will cease to accumulate from and after such redemption date.
If fewer than all of the outstanding Atlas Series D Preferred Shares are to be redeemed, the number of shares to be redeemed will be determined by Atlas, and such shares will be redeemed by such method of selection as the Securities Depository shall determine, with adjustments to avoid redemption of fractional shares. So long as all Atlas Series D Preferred Shares are held of record by the nominee of the Securities Depository, Atlas will give notice, or cause notice to be given, to the Securities Depository of the number of Atlas Series D Preferred Shares to be redeemed, and the Securities Depository will determine the number of Atlas Series D Preferred Shares to be redeemed from the account of each of its participants holding such shares in its participant account. Thereafter, each participant will select the number of shares to be redeemed from each beneficial owner for whom it acts (including the participant, to the extent it holds Atlas Series D Preferred Shares for its own account). A participant may determine to redeem Atlas Series D Preferred Shares from some beneficial owners (including the participant itself) without redeeming Atlas Series D Preferred Shares from the accounts of other beneficial owners.
So long as the Atlas Series D Preferred Shares are held of record by the nominee of the Securities Depository, the redemption price will be paid by the Paying Agent to the Securities Depository on the redemption date. The Securities Depositorys normal procedures provide for it to distribute the amount of the redemption price in same-day funds to its participants who, in turn, are expected to distribute such funds to the persons for whom they are acting as agent.
If Atlas gives or causes to be given a notice of redemption, then Atlas will deposit with the Paying Agent funds sufficient to redeem the Atlas Series D Preferred Shares as to which notice has been given by the close of business, New York City time, no later than the Business Day immediately preceding the date fixed for redemption, and will give the Paying Agent irrevocable instructions and authority to pay the redemption price to the holder or holders thereof upon surrender or deemed surrender (which will occur automatically if the certificate representing such shares is issued in the name of the Securities Depository or its nominee) of the certificates therefor. If notice of redemption shall have been given, then from and after the date fixed for redemption, unless Atlas defaults in providing funds sufficient for such redemption at the time and place specified for payment pursuant to the notice, all dividends on such shares will cease to accumulate and all rights of holders of such shares as Atlas shareholders will cease, except the right to receive the redemption price, including an amount equal to accumulated and unpaid dividends through the date fixed for redemption, whether or not declared. Atlas will 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 shares to be redeemed), and the holders of any shares so redeemed will have no claim to any such interest income. Any funds deposited with the Paying Agent hereunder by Atlas for any reason, including, but not limited to, redemption of Atlas Series D 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 Atlas upon Atlas written request, after which repayment the holders of the Atlas Series D Preferred Shares entitled to such redemption or other payment shall have recourse only to Atlas.
If only a portion of the Atlas Series D Preferred Shares represented by a certificate has been called for redemption, upon surrender of the certificate to the Paying Agent (which will occur automatically if the certificate representing such shares is registered in the name of the Securities Depository or its nominee), the Paying Agent will issue to the holder of such shares a new certificate (or adjust the applicable book-entry account) representing the number of Atlas Series D Preferred Shares represented by the surrendered certificate that have not been called for redemption.
Notwithstanding any notice of redemption, there will be no redemption of any Atlas Series D Preferred Shares called for redemption until funds sufficient to pay the full redemption price of such shares, including all accumulated and unpaid dividends to the date of redemption, whether or not declared, have been deposited by Atlas with the Paying Agent.
Atlas and its affiliates may from time to time purchase the Atlas Series D Preferred Shares, subject to compliance with all applicable securities and other laws. Neither Atlas nor any of its affiliates has any obligation, or any present plan or intention, to purchase any Atlas Series D Preferred Shares. Any shares repurchased and cancelled by Atlas will revert to the status of authorized but unissued preferred shares, undesignated as to series.
Notwithstanding the foregoing, in the event that full cumulative dividends on the Atlas Series D Preferred Shares and any Parity Securities have not been paid or declared and set apart for payment, Atlas may not repurchase, redeem or otherwise acquire, in whole or in part, any Atlas Series D Preferred Shares or Parity Securities except pursuant to a purchase or exchange offer made on the same terms to all holders of Atlas Series D Preferred Shares and any Parity Securities. Common shares and any other Junior Securities may not be redeemed, repurchased or otherwise acquired unless full cumulative dividends on the Atlas Series D Preferred Shares and any Parity Securities for all prior and the then-ending dividend periods have been paid or declared and set apart for payment.
Book-Entry System
All Atlas Series D Preferred Shares will be represented by a single certificate issued to The Depository Trust Company (and its successors or assigns or any other securities depository selected by Atlas) or the Securities Depository, and registered in the name of its nominee (initially, Cede & Co.). The Atlas Series D Preferred Shares will continue to be represented by a single certificate registered in the name of the Securities Depository or its nominee, and no holder of the Atlas Series D Preferred Shares will 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 Atlas has not selected a substitute Securities Depository within 60 calendar days thereafter. Payments and communications made by Atlas to holders of the Atlas Series D Preferred Shares will be duly made by making payments to, and communicating with, the Securities Depository. Accordingly, unless certificates are available to holders of the Atlas Series D Preferred Shares, each holder of Atlas Series D Preferred Shares must rely on (a) the procedures of the Securities Depository and its participants to receive dividends, distributions, any redemption price, liquidation preference and notices, and to direct the exercise of any voting or nominating rights, with respect to such Atlas Series D Preferred Shares and (b) the records of the Securities Depository and its participants to evidence its ownership of such Atlas Series D Preferred Shares.
The Depository Trust Company, the initial Securities Depository, is a New York-chartered limited purpose trust company that performs services for its participants, some of whom (and/or their representatives) own The Depository Trust Company. The Securities Depository maintains lists of its participants and will maintain the positions (i.e., ownership interests) held by its participants in the Atlas Series D Preferred Shares, whether as a holder of the Atlas Series D Preferred Shares for its own account or as a nominee for another holder of the Atlas Series D Preferred Shares.
Atlas Series E Preferred Shares
The following description of the Atlas Series E Preferred Shares does not purport to be complete and is subject to, and qualified in its entirety by reference to, the provisions of Atlas articles of incorporation, including the Atlas Series E Statement of Designation designating the Atlas Series E Preferred Shares and setting forth the rights, preferences and limitations of the Atlas Series E Preferred Shares.
General
There are 15,000,000 Atlas Series E Preferred Shares authorized.
The Atlas Series E Preferred Shares will entitle the holders thereof to receive cumulative cash dividends when, as and if declared by Atlas board of directors out of legally available funds for such purpose. The Atlas Series E Preferred Shares will represent perpetual equity interests in Atlas and will not give rise to a claim for payment of a principal amount at a particular date. As such, the Atlas Series E Preferred Shares will rank junior to all of Atlas indebtedness and other liabilities with respect to assets available to satisfy claims against Atlas.
The Atlas Series E Preferred Shares will not be convertible into common shares or other of Atlas securities and will not have exchange rights or be entitled or subject to any preemptive or similar rights. The Atlas Series E Preferred Shares will not be subject to mandatory redemption or to any sinking fund requirements. The Atlas Series E Preferred Shares will be subject to redemption, in whole or in part, at Atlas option. See Redemption.
Liquidation Rights
The holders of outstanding Atlas Series E Preferred Shares will be entitled, in the event of any liquidation, dissolution or winding up of Atlas affairs, whether voluntary or involuntary, to receive the liquidation preference of $25.00 per share in cash plus an amount equal to accumulated and unpaid dividends thereon to the date fixed for payment of such amount (whether or not declared), and no more, before any distribution will be made to the holders of Atlas common shares or any other Junior Securities. A consolidation or merger of Atlas with or into any other entity, individually or in a series of transactions, will not be deemed a liquidation, dissolution or winding up of Atlas affairs for this purpose. In the event that Atlas assets available for distribution to holders of the outstanding Atlas Series E Preferred Shares and any Parity Securities are insufficient to permit payment of all required amounts, Atlas assets then remaining will be distributed among the Atlas Series E Preferred Shares and any Parity Securities, as
applicable, ratably on the basis of their relative aggregate liquidation preferences. After payment of all required amounts to the holders of the outstanding Atlas Series E Preferred Shares and Parity Securities, Atlas remaining assets and funds will be distributed among the holders of the common shares and any other Junior Securities then outstanding according to their respective rights.
Voting Rights
The Atlas Series E Preferred Shares have no voting rights except as set forth below or as otherwise provided by Marshall Islands law. In the event that six quarterly dividends, whether consecutive or not, payable on the Atlas Series E Preferred Shares are in arrears, the holders of the Atlas Series E Preferred Shares will have the right, voting as a class together with holders of any other 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 Atlas board of directors, and the size of Atlas board of directors will be increased as needed to accommodate such change (unless the size of Atlas 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 Atlas Series E Preferred Shares voted as a class for the election of such director). The right of such holders of Atlas Series E Preferred Shares to elect a member of Atlas board of directors will continue until such time as all dividends accumulated and in arrears on the Atlas Series E Preferred Shares have been paid in full, at which time such right will terminate, subject to revesting in the event of each and every subsequent failure to pay six quarterly dividends as described above. Upon any termination of the right of the holders of the Atlas Series E Preferred Shares and 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 voting as a class will terminate immediately. Any director elected by the holders of the Atlas Series E Preferred Shares and any other Parity Securities shall be entitled to one vote on any matter before Atlas board of directors.
Unless Atlas has received the affirmative vote or consent of the holders of at least two-thirds of the outstanding Atlas Series E Preferred Shares, voting as a single class, Atlas may not adopt any amendment to its articles of incorporation that adversely alters the preferences, powers or rights of the Atlas Series E Preferred Shares.
In addition, unless Atlas has received the affirmative vote or consent of the holders of at least two-thirds of the outstanding Atlas 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, Atlas may not:
|
issue any Parity Securities or Senior Securities if the cumulative dividends payable on outstanding Atlas Series E Preferred Shares are in arrears; or |
|
create or issue any Senior Securities. |
On any matter described above in which the holders of the Atlas Series E Preferred Shares are entitled to vote as a class, such holders will be entitled to one vote per share. The Atlas Series E Preferred Shares held by Atlas or any of Atlas subsidiaries or affiliates will not be entitled to vote.
Dividends
General
Holders of Atlas Series E Preferred Shares will be entitled to receive, when, as and if declared by Atlas board of directors out of legally available funds for such purpose, cumulative cash dividends from the original issue date.
Dividend Rate
Dividends on the Atlas Series E Preferred Shares will be cumulative, commencing on the original issue date, and payable on each Dividend Payment Date, when, as and if declared by Atlas board of directors or any authorized committee thereof out of legally available funds for such purpose. Dividends on the Atlas Series E Preferred Shares will accrue at a rate of 8.25% per annum per $25.00 stated liquidation preference per Atlas Series E Preferred Share.
Dividend Payment Dates
The Dividend Payment Dates for the Atlas Series E Preferred Shares will be each January 30, April 30, July 30 and October 30. Dividends will accumulate in each dividend period from and including the preceding Dividend Payment Date or the initial issue date, as the case may be, to but excluding the applicable Dividend Payment Date for such dividend period, and dividends will accrue on accumulated dividends at the applicable dividend rate. If any Dividend Payment Date otherwise would fall on a day that is not a Business Day, declared dividends will be paid on the immediately succeeding Business Day without the accumulation of additional dividends. Dividends on the Atlas Series E Preferred Shares will be payable based on a 360-day year consisting of twelve 30-day months.
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.
Payment of Dividends
Not later than the close of business, New York City time, on each Dividend Payment Date, we will pay those dividends, if any, on the Atlas Series E Preferred Shares that have been declared by Atlas board of directors to the holders of such shares as such holders names appear on Atlas stock transfer books maintained by the Registrar and Transfer Agent on the applicable Record Date. The applicable record date, or Record Date, will 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 will be such date as may be designated by Atlas board of directors in accordance with Atlas bylaws then in effect and the Atlas Series E Statement of Designation.
So long as the Atlas Series E Preferred Shares are held of record by the nominee of the Securities Depository, declared dividends will be paid to the Securities Depository in same-day funds on each Dividend Payment Date. The Securities Depository will credit accounts of its participants in accordance with the Securities Depositorys normal procedures. The participants will be responsible for holding or disbursing such payments to beneficial owners of the Atlas Series E Preferred Shares in accordance with the instructions of such beneficial owners.
No dividend may 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 (a) full cumulative dividends have been or contemporaneously are being paid or provided for on all outstanding Atlas Series E Preferred Shares and any Parity Securities through the most recent respective dividend payment dates and (b) Atlas is in compliance with the Net Worth to Preferred Stock Ratio described above. Accumulated dividends in arrears for any past dividend period may be declared by Atlas board of directors and paid on any date fixed by Atlas board of directors, whether or not a Dividend Payment Date, to holders of the Atlas 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 Atlas Series E Preferred Shares and any Parity Securities have not been declared and paid, or sufficient funds for the payment thereof have not been set apart, payment of accumulated dividends in arrears will be made in order of their respective dividend payment dates, commencing with the earliest. If less than all dividends payable with respect to all Atlas Series E Preferred Shares and any Parity Securities are paid, any partial payment will be made pro rata with respect to the Atlas Series E Preferred Shares and any Parity Securities entitled to a dividend payment at such time in proportion to the aggregate amounts remaining due in respect of such shares at such time. Holders of the Atlas Series E Preferred Shares will 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 under DividendsDividend Rate, no interest or sum of money in lieu of interest will be payable in respect of any dividend payment which may be in arrears on the Atlas Series E Preferred Shares.
Redemption
Optional Redemption
Atlas may redeem, at its option, in whole or in part, the Atlas Series E Preferred Shares at a redemption price in cash equal to $25.00 per share plus an amount equal to all accumulated and unpaid dividends thereon to the date of redemption, whether or not declared. Any such optional redemption shall be effected only out of funds legally available for such purpose.
Redemption Procedures
Atlas will give notice of any redemption by mail, postage prepaid, not less than 15 days and not more than 60 days before the scheduled date of redemption, to the holders of any shares to be redeemed as such holders names appear on Atlas stock transfer books maintained by the Registrar and Transfer Agent at the address of such holders shown therein. Such notice shall state: (a) the redemption date, (b) the number of Atlas Series E Preferred Shares to be redeemed and, if less than all outstanding Atlas Series E Preferred Shares are to be redeemed, the number (and the identification) of shares to be redeemed from such holder, (c) the redemption price, (d) the place where the Atlas Series E Preferred Shares are to be redeemed and shall be presented and surrendered for payment of the redemption price therefor and (e) that dividends on the shares to be redeemed will cease to accumulate from and after such redemption date.
If fewer than all of the outstanding Atlas Series E Preferred Shares are to be redeemed, the number of shares to be redeemed will be determined by Atlas, and such shares will be redeemed by such method of selection as the Securities Depository shall determine, with adjustments to avoid redemption of fractional shares. So long as all Atlas Series E Preferred Shares are held of record by the nominee of the Securities Depository, Atlas will give notice, or cause notice to be given, to the Securities Depository of the number of Atlas Series E Preferred Shares to be redeemed, and the Securities Depository will determine the number of Atlas Series E Preferred Shares to be redeemed from the account of each of its participants holding such shares in its participant account. Thereafter, each participant will select the number of shares to be redeemed from each beneficial owner for whom it acts (including the participant, to the extent it holds Atlas Series E Preferred Shares for its own account). A participant may determine to redeem Atlas Series E Preferred Shares from some beneficial owners (including the participant itself) without redeeming Atlas Series E Preferred Shares from the accounts of other beneficial owners.
So long as the Atlas Series E Preferred Shares are held of record by the nominee of the Securities Depository, the redemption price will be paid by the Paying Agent to the Securities Depository on the redemption date. The Securities Depositorys normal procedures provide for it to distribute the amount of the redemption price in same-day funds to its participants who, in turn, are expected to distribute such funds to the persons for whom they are acting as agent.
If Atlas gives or causes to be given a notice of redemption, then Atlas will deposit with the Paying Agent funds sufficient to redeem the Atlas Series E Preferred Shares as to which notice has been given by the close of business, New York City time, no later than the Business Day immediately preceding the date fixed for redemption, and will give the Paying Agent irrevocable instructions and authority to pay the redemption price to the holder or holders thereof upon surrender or deemed surrender (which will occur automatically if the certificate representing such shares is issued in the name of the Securities Depository or its nominee) of the certificates therefor. If notice of redemption shall have been given, then from and after the date fixed for redemption, unless Atlas defaults in providing funds sufficient for such redemption at the time and place specified for payment pursuant to the notice, all dividends on such shares will cease to accumulate and all rights of holders of such shares as Atlas shareholders will cease, except the right to receive the redemption price, including an amount equal to accumulated and unpaid dividends through the date fixed for redemption, whether or not declared. Atlas will 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 shares to be redeemed), and the holders of any shares so redeemed will have no claim to any such interest income. Any funds deposited with the Paying Agent hereunder by Atlas for any reason, including, but not limited to, redemption of Atlas 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 Atlas upon Atlas written request, after which repayment the holders of the Atlas Series E Preferred Shares entitled to such redemption or other payment shall have recourse only to Atlas.
If only a portion of the Atlas Series E Preferred Shares represented by a certificate has been called for redemption, upon surrender of the certificate to the Paying Agent (which will occur automatically if the certificate representing such shares is registered in the name of the Securities Depository or its nominee), the Paying Agent will issue to the holder of such shares a new certificate (or adjust the applicable book-entry account) representing the number of Atlas Series E Preferred Shares represented by the surrendered certificate that have not been called for redemption.
Notwithstanding any notice of redemption, there will be no redemption of any Atlas Series E Preferred Shares called for redemption until funds sufficient to pay the full redemption price of such shares, including all accumulated and unpaid dividends to the date of redemption, whether or not declared, have been deposited by Atlas with the Paying Agent.
Atlas and its affiliates may from time to time purchase the Atlas Series E Preferred Shares, subject to compliance with all applicable securities and other laws. Neither Atlas nor any of its affiliates has any obligation, or any present plan or intention, to purchase any Atlas Series E Preferred Shares. Any shares repurchased and cancelled by Atlas will revert to the status of authorized but unissued preferred shares, undesignated as to series.
Notwithstanding the foregoing, in the event that full cumulative dividends on the Atlas Series E Preferred Shares and any Parity Securities have not been paid or declared and set apart for payment, Atlas may not repurchase, redeem or otherwise acquire, in whole or in part, any Atlas Series E Preferred Shares or Parity Securities except pursuant to a purchase or exchange offer made on the same terms to all holders of Atlas Series E Preferred Shares and any Parity Securities. Common shares and any other Junior Securities may not be redeemed, repurchased or otherwise acquired unless full cumulative dividends on the Atlas Series E Preferred Shares and any Parity Securities for all prior and the then-ending dividend periods have been paid or declared and set apart for payment.
Book-Entry System
All Atlas Series E Preferred Shares will be represented by a single certificate issued to The Depository Trust Company (and its successors or assigns or any other securities depository selected by Atlas), or the Securities Depository, and registered in the name of its nominee (initially, Cede & Co.). The Atlas Series E Preferred Shares will continue to be represented by a single certificate registered in the name of the Securities Depository or its nominee, and no holder of the Atlas Series E Preferred Shares will 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 Atlas has not selected a substitute Securities Depository within 60 calendar days thereafter. Payments and communications made by Atlas to holders of the Atlas Series E Preferred Shares will be duly made by making payments to, and communicating with, the Securities Depository. Accordingly, unless certificates are available to holders of the Atlas Series E Preferred Shares, each holder of Atlas Series E Preferred Shares must rely on (a) the procedures of the Securities Depository and its participants to receive dividends, distributions, any redemption price, liquidation preference and notices, and to direct the exercise of any voting or nominating rights, with respect to such Atlas Series E Preferred Shares and (b) the records of the Securities Depository and its participants to evidence its ownership of such Atlas Series E Preferred Shares.
The Depository Trust Company, the initial Securities Depository, is a New York-chartered limited purpose trust company that performs services for its participants, some of whom (and/or their representatives) own The Depository Trust Company. The Securities Depository maintains lists of its participants and will maintain the positions (i.e., ownership interests) held by its participants in the Atlas Series E Preferred Shares, whether as a holder of the Atlas Series E Preferred Shares for its own account or as a nominee for another holder of the Atlas Series E Preferred Shares.
Atlas Series G Preferred Shares
The following description of the Atlas Series G Preferred Shares does not purport to be complete and is subject to, and qualified in its entirety by reference to, the provisions of Atlas articles of incorporation, including the Atlas Series G Statement of Designation designating the Atlas Series G Preferred Shares and setting forth the rights, preferences and limitations of the Atlas Series G Preferred Shares.
General
There are 15,000,000 Atlas Series G Preferred Shares authorized.
The Atlas Series G Preferred Shares will entitle the holders thereof to receive cumulative cash dividends when, as and if declared by Atlas board of directors out of legally available funds for such purpose. The Atlas Series G Preferred Shares will represent perpetual equity interests in Atlas and will not give rise to a claim for payment of a principal amount at a particular date. As such, the Atlas Series G Preferred Shares will rank junior to all of Atlas indebtedness and other liabilities with respect to assets available to satisfy claims against Atlas.
The Atlas Series G Preferred Shares will not be convertible into common shares or other of Atlas securities and will not have exchange rights or be entitled or subject to any preemptive or similar rights. The Atlas Series G Preferred Shares will not be subject to mandatory redemption or to any sinking fund requirements. The Atlas Series G Preferred Shares will be subject to redemption, in whole or in part, at Atlas option commencing on June 16, 2021. See Redemption.
Liquidation Rights
The holders of outstanding Atlas Series G Preferred Shares will be entitled, in the event of any liquidation, dissolution or winding up of Atlas affairs, whether voluntary or involuntary, to receive the liquidation preference of $25.00 per share in cash plus an amount equal to accumulated and unpaid dividends thereon to the date fixed for payment of such amount (whether or not declared), and no more, before any distribution will be made to the holders of Atlas common shares or any other Junior Securities. A consolidation or merger of Atlas with or into any other entity, individually or in a series of transactions, will not be deemed a liquidation, dissolution or winding up of Atlas affairs for this purpose. In the event that Atlas assets available for distribution to holders of the outstanding Atlas Series G Preferred Shares and any Parity Securities are insufficient to permit payment of all required amounts, Atlas assets then remaining will be distributed among the Atlas Series G Preferred Shares and any Parity Securities, as applicable, ratably on the basis of their relative aggregate liquidation preferences. After payment of all required amounts to the holders of the outstanding Atlas Series G Preferred Shares and Parity Securities, Atlas remaining assets and funds will be distributed among the holders of the common shares and any other Junior Securities then outstanding according to their respective rights.
Voting Rights
The Atlas Series G Preferred Shares will have no voting rights except as set forth below or as otherwise provided by Marshall Islands law. In the event that six quarterly dividends, whether consecutive or not, payable on the Atlas Series G Preferred Shares are in arrears, the holders of the Atlas Series G Preferred Shares will have the right, voting as a class together with holders of any other 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 Atlas board of directors, and the size of Atlas board of directors will be increased as needed to accommodate such change (unless the size of Atlas 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 Atlas Series G Preferred Shares voted as a class for the election of such director). The right of such holders of Atlas Series G Preferred Shares to elect a member of Atlas board of directors will continue until such time as all dividends accumulated and in arrears on the Atlas Series G Preferred Shares have been paid in full, at which time such right will terminate, subject to revesting in the event of each and every subsequent failure to pay six quarterly dividends as described above. Upon any termination of the right of the holders of the Atlas Series G Preferred Shares and 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 voting as a class will terminate immediately. Any director elected by the holders of the Atlas Series G Preferred Shares and any other Parity Securities shall be entitled to one vote on any matter before Atlas board of directors.
Unless Atlas has received the affirmative vote or consent of the holders of at least two-thirds of the outstanding Atlas Series G Preferred Shares, voting as a single class, Atlas may not adopt any amendment to its articles of incorporation that adversely alters the preferences, powers or rights of the Atlas Series G Preferred Shares.
In addition, unless Atlas has received the affirmative vote or consent of the holders of at least two-thirds of the outstanding Atlas Series G 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, Atlas may not:
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issue any Parity Securities or Senior Securities if the cumulative dividends payable on outstanding Atlas Series G Preferred Shares are in arrears; or |
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create or issue any Senior Securities. |
On any matter described above in which the holders of the Atlas Series G Preferred Shares are entitled to vote as a class, such holders will be entitled to one vote per share. The Atlas Series G Preferred Shares held by Atlas or any of Atlas subsidiaries or affiliates will not be entitled to vote.
Dividends
General
Holders of Atlas Series G Preferred Shares will be entitled to receive, when, as and if declared by Atlas board of directors out of legally available funds for such purpose, cumulative cash dividends from the original issue date.
Dividend Rate
Dividends on the Atlas Series G Preferred Shares will be cumulative, commencing on the original issue date, and payable on each Dividend Payment Date, when, as and if declared by Atlas board of directors or any authorized committee thereof out of legally available funds for such purpose. Dividends on the Atlas Series G Preferred Shares will accrue at a rate of 8.20% per annum per $25.00 stated liquidation preference per Atlas Series G Preferred Share.
Dividend Payment Dates
The Dividend Payment Dates for the Atlas Series G Preferred Shares will be each January 30, April 30, July 30 and October 30. Dividends accumulate in each dividend period from and including the preceding Dividend Payment Date or the initial issue date, as the case may be, to but excluding the applicable Dividend Payment Date for such dividend period, and dividends will accrue on accumulated dividends at the applicable dividend rate. If any Dividend Payment Date otherwise would fall on a day that is not a Business Day, declared dividends will be paid on the immediately succeeding Business Day without the accumulation of additional dividends. Dividends on the Atlas Series G Preferred Shares will be payable based on a 360-day year consisting of twelve 30-day months.
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.
Payment of Dividends
Not later than the close of business, New York City time, on each Dividend Payment Date, Atlas will pay those dividends, if any, on the Atlas Series G Preferred Shares that have been declared by Atlas board of directors to the holders of such shares as such holders names appear on Atlas stock transfer books maintained by the Registrar and Transfer Agent on the applicable Record Date. The applicable record date, or Record Date, will 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 will be such date as may be designated by Atlas board of directors in accordance with Atlas bylaws then in effect and the Atlas Series G Statement of Designation.
So long as the Atlas Series G Preferred Shares are held of record by the nominee of the Securities Depository, declared dividends will be paid to the Securities Depository in same-day funds on each Dividend Payment Date. The Securities Depository will credit accounts of its participants in accordance with the Securities Depositorys normal procedures. The participants will be responsible for holding or disbursing such payments to beneficial owners of the Atlas Series G Preferred Shares in accordance with the instructions of such beneficial owners.
No dividend may 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 (a) full cumulative dividends have been or contemporaneously are being paid or provided for on all outstanding Atlas Series G Preferred Shares and any Parity Securities through the most recent respective dividend payment dates and (b) Atlas is in compliance with the Net Worth to Preferred Stock Ratio described above. Accumulated dividends in arrears for any past dividend period may be declared by Atlas board of directors and paid on any date fixed by Atlas board of directors, whether or not a Dividend Payment Date, to holders of the Atlas Series G Preferred Shares on the record date for such payment, which may not be more than 60 days, nor less than 15 days, before such payment date. Subject to the next succeeding sentence, if all accumulated dividends in arrears on all outstanding Atlas Series G Preferred Shares and any Parity Securities have not been declared and paid, or if sufficient funds for the payment thereof have not been set apart, payment of accumulated dividends in
arrears on the Atlas Series G Preferred Shares and any Parity Securities will be made in order of their respective dividend payment dates, commencing with the earliest. If less than all dividends payable with respect to all Atlas Series G Preferred Shares and any Parity Securities are paid, any partial payment will be made pro rata with respect to the Atlas Series G Preferred Shares and any Parity Securities entitled to a dividend payment at such time in proportion to the aggregate amounts remaining due in respect of such shares at such time. Holders of the Atlas Series G Preferred Shares will 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 under DividendsDividend Rate, no interest or sum of money in lieu of interest will be payable in respect of any dividend payment which may be in arrears on the Atlas Series G Preferred Shares.
Redemption
Optional Redemption
Commencing on June 16, 2021, Atlas may redeem, at Atlas option, in whole or in part, the Atlas Series G Preferred Shares at a redemption price in cash equal to $25.00 per share plus an amount equal to all accumulated and unpaid dividends thereon to the date of redemption, whether or not declared. Any such optional redemption shall be effected only out of funds legally available for such purpose.
Redemption Procedures
Atlas will give notice of any redemption by mail, postage prepaid, not less than 15 days and not more than 60 days before the scheduled date of redemption, to the holders of any shares to be redeemed as such holders names appear on Atlas stock transfer books maintained by the Registrar and Transfer Agent at the address of such holders shown therein. Such notice shall state: (a) the redemption date, (b) the number of Atlas Series G Preferred Shares to be redeemed and, if less than all outstanding Atlas Series G Preferred Shares are to be redeemed, the number (and the identification) of shares to be redeemed from such holder, (c) the redemption price, (d) the place where the Atlas Series G Preferred Shares are to be redeemed and shall be presented and surrendered for payment of the redemption price therefor and (e) that dividends on the shares to be redeemed will cease to accumulate from and after such redemption date.
If fewer than all of the outstanding Atlas Series G Preferred Shares are to be redeemed, the number of shares to be redeemed will be determined by Atlas, and such shares will be redeemed by such method of selection as the Securities Depository shall determine, with adjustments to avoid redemption of fractional shares. So long as all Atlas Series G Preferred Shares are held of record by the nominee of the Securities Depository, Atlas will give notice, or cause notice to be given, to the Securities Depository of the number of Atlas Series G Preferred Shares to be redeemed, and the Securities Depository will determine the number of Atlas Series G Preferred Shares to be redeemed from the account of each of its participants holding such shares in its participant account. Thereafter, each participant will select the number of shares to be redeemed from each beneficial owner for whom it acts (including the participant, to the extent it holds Atlas Series G Preferred Shares for its own account). A participant may determine to redeem Atlas Series G Preferred Shares from some beneficial owners (including the participant itself) without redeeming Atlas Series G Preferred Shares from the accounts of other beneficial owners.
So long as the Atlas Series G Preferred Shares are held of record by the nominee of the Securities Depository, the redemption price will be paid by the Paying Agent to the Securities Depository on the redemption date. The Securities Depositorys normal procedures provide for it to distribute the amount of the redemption price in same-day funds to its participants who, in turn, are expected to distribute such funds to the persons for whom they are acting as agent.
If Atlas gives or causes to be given a notice of redemption, then Atlas will deposit with the Paying Agent funds sufficient to redeem the Atlas Series G Preferred Shares as to which notice has been given by the close of business, New York City time, no later than the Business Day immediately preceding the date fixed for redemption, and will give the Paying Agent irrevocable instructions and authority to pay the redemption price to the holder or holders thereof upon surrender or deemed surrender (which will occur automatically if the certificate representing such shares is issued in the name of the Securities Depository or its nominee) of the certificates therefor. If notice of redemption shall have been given, then from and after the date fixed for redemption, unless Atlas defaults in providing funds sufficient for such redemption at the time and place specified for payment pursuant to the notice, all dividends on such
shares will cease to accumulate and all rights of holders of such shares as Atlas shareholders will cease, except the right to receive the redemption price, including an amount equal to accumulated and unpaid dividends through the date fixed for redemption, whether or not declared. Atlas will 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 shares to be redeemed), and the holders of any shares so redeemed will have no claim to any such interest income. Any funds deposited with the Paying Agent hereunder by Atlas for any reason, including, but not limited to, redemption of Atlas Series G Preferred Shares, that remain unclaimed or unpaid after two years after the applicable redemption date or other payment date, shall be, to the extent permitted by law, repaid to Atlas upon Atlas written request, after which repayment the holders of the Atlas Series G Preferred Shares entitled to such redemption or other payment shall have recourse only to Atlas.
If only a portion of the Atlas Series G Preferred Shares represented by a certificate has been called for redemption, upon surrender of the certificate to the Paying Agent (which will occur automatically if the certificate representing such shares is registered in the name of the Securities Depository or its nominee), the Paying Agent will issue to the holder of such shares a new certificate (or adjust the applicable book-entry account) representing the number of Atlas Series G Preferred Shares represented by the surrendered certificate that have not been called for redemption.
Notwithstanding any notice of redemption, there will be no redemption of any Atlas Series G Preferred Shares called for redemption until funds sufficient to pay the full redemption price of such shares, including all accumulated and unpaid dividends to the date of redemption, whether or not declared, have been deposited by Atlas with the Paying Agent.
Atlas and its affiliates may from time to time purchase the Atlas Series G Preferred Shares, subject to compliance with all applicable securities and other laws. Neither Atlas nor any of its affiliates has any obligation, or any present plan or intention, to purchase any Atlas Series G Preferred Shares. Any shares repurchased and cancelled by Atlas will revert to the status of authorized but unissued preferred shares, undesignated as to series.
Notwithstanding the foregoing, in the event that full cumulative dividends on the Atlas Series G Preferred Shares and any Parity Securities have not been paid or declared and set apart for payment, Atlas may not repurchase, redeem or otherwise acquire, in whole or in part, any Atlas Series G Preferred Shares or Parity Securities except pursuant to a purchase or exchange offer made on the same terms to all holders of Atlas Series G Preferred Shares and any Parity Securities. Common shares and any other Junior Securities may not be redeemed, repurchased or otherwise acquired unless full cumulative dividends on the Atlas Series G Preferred Shares and any Parity Securities for all prior and the then-ending dividend periods have been paid or declared and set apart for payment.
Book-Entry System
All Atlas Series G Preferred Shares will be represented by a single certificate issued to The Depository Trust Company (and its successors or assigns or any other securities depository selected by Atlas), or the Securities Depository, and registered in the name of its nominee (initially, Cede & Co.). The Atlas Series G Preferred Shares will continue to be represented by a single certificate registered in the name of the Securities Depository or its nominee, and no holder of the Atlas Series G Preferred Shares will 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 Atlas has not selected a substitute Securities Depository within 60 calendar days thereafter. Payments and communications made by Atlas to holders of the Atlas Series G Preferred Shares will be duly made by making payments to, and communicating with, the Securities Depository. Accordingly, unless certificates are available to holders of the Atlas Series G Preferred Shares, each holder of Atlas Series G Preferred Shares must rely on (a) the procedures of the Securities Depository and its participants to receive dividends, distributions, any redemption price, liquidation preference and notices, and to direct the exercise of any voting or nominating rights, with respect to such Atlas Series G Preferred Shares and (b) the records of the Securities Depository and its participants to evidence its ownership of such Atlas Series G Preferred Shares.
The Depository Trust Company, the initial Securities Depository, is a New York-chartered limited purpose trust company that performs services for its participants, some of whom (and/or their representatives) own The Depository Trust Company. The Securities Depository maintains lists of its participants and will maintain the positions (i.e. ownership interests) held by its participants in the Atlas Series G Preferred Shares, whether as a holder of the Atlas Series G Preferred Shares for its own account or as a nominee for another holder of the Atlas Series G Preferred Shares.
Atlas Series H Preferred Shares
The following description of the Atlas Series H Preferred Shares does not purport to be complete and is subject to, and qualified in its entirety by reference to, the provisions of Atlas articles of incorporation, including the Atlas Series H Statement of Designation designating the Atlas Series H Preferred Shares and setting forth the rights, preferences and limitations of the Atlas Series H Preferred Shares.
General
There are 15,000,000 Atlas Series H Preferred Shares authorized.
The Atlas Series H Preferred Shares will entitle the holders thereof to receive cumulative cash dividends when, as and if declared by Atlas board of directors out of legally available funds for such purpose. The Atlas Series H Preferred Shares will represent perpetual equity interests in Atlas and will not give rise to a claim for payment of a principal amount at a particular date. As such, the Atlas Series H Preferred Shares will rank junior to all of Atlas indebtedness and other liabilities with respect to assets available to satisfy claims against Atlas.
The Atlas Series H Preferred Shares will not be convertible into common shares or other of Atlas securities and will not have exchange rights or be entitled or subject to any preemptive or similar rights. The Atlas Series H Preferred Shares will not be subject to mandatory redemption or to any sinking fund requirements. The Atlas Series H Preferred Shares will be subject to redemption, in whole or in part, at Atlas option commencing on August 11, 2021. See Redemption.
Liquidation Rights
The holders of outstanding Atlas Series H Preferred Shares will be entitled, in the event of any liquidation, dissolution or winding up of Atlas affairs, whether voluntary or involuntary, to receive the liquidation preference of $25.00 per share in cash plus an amount equal to accumulated and unpaid dividends thereon to the date fixed for payment of such amount (whether or not declared), and no more, before any distribution will be made to the holders of Atlas common shares or any other Junior Securities. A consolidation or merger of Atlas with or into any other entity, individually or in a series of transactions, will not be deemed a liquidation, dissolution or winding up of Atlas affairs for this purpose. In the event that Atlas assets available for distribution to holders of the outstanding Atlas Series H Preferred Shares and any Parity Securities are insufficient to permit payment of all required amounts, Atlas assets then remaining will be distributed among the Atlas Series H Preferred Shares and any Parity Securities, as applicable, ratably on the basis of their relative aggregate liquidation preferences. After payment of all required amounts to the holders of the outstanding Atlas Series H Preferred Shares and Parity Securities, Atlas remaining assets and funds will be distributed among the holders of the common shares and any other Junior Securities then outstanding according to their respective rights.
Voting Rights
The Atlas Series H Preferred Shares will have no voting rights except as set forth below or as otherwise provided by Marshall Islands law. In the event that six quarterly dividends, whether consecutive or not, payable on the Atlas Series H Preferred Shares are in arrears, the holders of the Atlas Series H Preferred Shares will have the right, voting as a class together with holders of any other 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 Atlas board of directors, and the size of Atlas board of directors will be increased as needed to accommodate such change (unless the size of Atlas 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 Atlas Series H Preferred Shares voted as a class for the election of such director). The right of such holders of Atlas Series H Preferred Shares to elect a member of Atlas board of directors will continue until such time as all dividends accumulated and in arrears
on the Atlas Series H Preferred Shares have been paid in full, at which time such right will terminate, subject to revesting in the event of each and every subsequent failure to pay six quarterly dividends as described above. Upon any termination of the right of the holders of the Atlas Series H Preferred Shares and 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 voting as a class will terminate immediately. Any director elected by the holders of the Atlas Series H Preferred Shares and any other Parity Securities shall be entitled to one vote on any matter before Atlas board of directors.
Unless Atlas has received the affirmative vote or consent of the holders of at least two-thirds of the outstanding Atlas Series H Preferred Shares, voting as a single class, Atlas may not adopt any amendment to its articles of incorporation that adversely alters the preferences, powers or rights of the Atlas Series H Preferred Shares.
In addition, unless Atlas has received the affirmative vote or consent of the holders of at least two-thirds of the outstanding Atlas Series H 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, Atlas may not:
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issue any Parity Securities or Senior Securities if the cumulative dividends payable on outstanding Atlas Series H Preferred Shares are in arrears; or |
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create or issue any Senior Securities. |
On any matter described above in which the holders of the Atlas Series H Preferred Shares are entitled to vote as a class, such holders will be entitled to one vote per share. The Atlas Series H Preferred Shares held by Atlas or any of Atlas subsidiaries or affiliates will not be entitled to vote.
Dividends
General
Holders of Atlas Series H Preferred Shares will be entitled to receive, when, as and if declared by Atlas board of directors out of legally available funds for such purpose, cumulative cash dividends from the original issue date.
Dividend Rate
Dividends on the Atlas Series H Preferred Shares will be cumulative, commencing on the original issue date, and payable on each Dividend Payment Date, when, as and if declared by Atlas board of directors or any authorized committee thereof out of legally available funds for such purpose. Dividends on the Atlas Series H Preferred Shares will accrue at a rate of 7.875% per annum per $25.00 stated liquidation preference per Atlas Series H Preferred Share.
Dividend Payment Dates
The Dividend Payment Dates for the Atlas Series H Preferred Shares will be each January 30, April 30, July 30 and October 30. Dividends will accumulate in each dividend period from and including the preceding Dividend Payment Date or the initial issue date, as the case may be, to but excluding the applicable Dividend Payment Date for such dividend period, and dividends will accrue on accumulated dividends at the applicable dividend rate. If any Dividend Payment Date otherwise would fall on a day that is not a Business Day, declared dividends will be paid on the immediately succeeding Business Day without the accumulation of additional dividends. Dividends on the Atlas Series H Preferred Shares will be payable based on a 360-day year consisting of twelve 30-day months.
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.
Payment of Dividends
Not later than the close of business, New York City time, on each Dividend Payment Date, Atlas will pay those dividends, if any, on the Atlas Series H Preferred Shares that have been declared by Atlas board of directors to the holders of such shares as such holders names appear on Atlas stock transfer books maintained by the Registrar and Transfer Agent on the applicable Record Date. The applicable record date, or Record Date, will 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 will be such date as may be designated by Atlas board of directors in accordance with Atlas bylaws then in effect and the Atlas Series H Statement of Designation.
So long as the Atlas Series H Preferred Shares are held of record by the nominee of the Securities Depository, declared dividends will be paid to the Securities Depository in same-day funds on each Dividend Payment Date. The Securities Depository will credit accounts of its participants in accordance with the Securities Depositorys normal procedures. The participants will be responsible for holding or disbursing such payments to beneficial owners of the Atlas Series H Preferred Shares in accordance with the instructions of such beneficial owners.
No dividend may 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 (a) full cumulative dividends have been or contemporaneously are being paid or provided for on all outstanding Atlas Series H Preferred Shares and any Parity Securities through the most recent respective dividend payment dates and (b) Atlas is in compliance with the Net Worth to Preferred Stock Ratio described above. Accumulated dividends in arrears for any past dividend period may be declared by Atlas board of directors and paid on any date fixed by Atlas board of directors, whether or not a Dividend Payment Date, to holders of the Atlas Series H 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 Atlas Series H Preferred Shares and any Parity Securities have not been declared and paid, or if sufficient funds for the payment thereof have not been set apart, payment of accumulated dividends in arrears on the Atlas Series H Preferred Shares and any Parity Securities will be made in order of their respective dividend payment dates, commencing with the earliest. If less than all dividends payable with respect to all Atlas Series H Preferred Shares and any Parity Securities are paid, any partial payment will be made pro rata with respect to the Atlas Series H Preferred Shares and any Parity Securities entitled to a dividend payment at such time in proportion to the aggregate amounts remaining due in respect of such shares at such time. Holders of the Atlas Series H Preferred Shares will 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 under DividendsDividend Rate, no interest or sum of money in lieu of interest will be payable in respect of any dividend payment which may be in arrears on the Atlas Series H Preferred Shares.
Redemption
Optional Redemption
Commencing on August 11, 2021, Atlas may redeem, at its option, in whole or in part, the Atlas Series H Preferred Shares at a redemption price in cash equal to $25.00 per share plus an amount equal to all accumulated and unpaid dividends thereon to the date of redemption, whether or not declared. Any such optional redemption shall be effected only out of funds legally available for such purpose.
Redemption Procedures
Atlas will give notice of any redemption by mail, postage prepaid, not less than 15 days and not more than 60 days before the scheduled date of redemption, to the holders of any shares to be redeemed as such holders names appear on Atlas stock transfer books maintained by the Registrar and Transfer Agent at the address of such holders shown therein. Such notice shall state: (a) the redemption date, (b) the number of Atlas Series H Preferred Shares to be redeemed and, if less than all outstanding Atlas Series H Preferred Shares are to be redeemed, the number (and the identification) of shares to be redeemed from such holder, (c) the redemption price, (d) the place where the Atlas Series H Preferred Shares are to be redeemed and shall be presented and surrendered for payment of the redemption price therefor and (e) that dividends on the shares to be redeemed will cease to accumulate from and after such redemption date.
If fewer than all of the outstanding Atlas Series H Preferred Shares are to be redeemed, the number of shares to be redeemed will be determined by Atlas, and such shares will be redeemed by such method of selection as the Securities Depository shall determine, with adjustments to avoid redemption of fractional shares. So long as all Atlas Series H Preferred Shares are held of record by the nominee of the Securities Depository, Atlas will give notice, or cause notice to be given, to the Securities Depository of the number of Atlas Series H Preferred Shares to be redeemed,
and the Securities Depository will determine the number of Atlas Series H Preferred Shares to be redeemed from the account of each of its participants holding such shares in its participant account. Thereafter, each participant will select the number of shares to be redeemed from each beneficial owner for whom it acts (including the participant, to the extent it holds Atlas Series H Preferred Shares for its own account). A participant may determine to redeem Atlas Series H Preferred Shares from some beneficial owners (including the participant itself) without redeeming Atlas Series H Preferred Shares from the accounts of other beneficial owners.
So long as the Atlas Series H Preferred Shares are held of record by the nominee of the Securities Depository, the redemption price will be paid by the Paying Agent to the Securities Depository on the redemption date. The Securities Depositorys normal procedures provide for it to distribute the amount of the redemption price in same-day funds to its participants who, in turn, are expected to distribute such funds to the persons for whom they are acting as agent.
If Atlas gives or causes to be given a notice of redemption, then Atlas will deposit with the Paying Agent funds sufficient to redeem the Atlas Series H Preferred Shares as to which notice has been given by the close of business, New York City time, no later than the Business Day immediately preceding the date fixed for redemption, and will give the Paying Agent irrevocable instructions and authority to pay the redemption price to the holder or holders thereof upon surrender or deemed surrender (which will occur automatically if the certificate representing such shares is issued in the name of the Securities Depository or its nominee) of the certificates therefor. If notice of redemption shall have been given, then from and after the date fixed for redemption, unless Atlas defaults in providing funds sufficient for such redemption at the time and place specified for payment pursuant to the notice, all dividends on such shares will cease to accumulate and all rights of holders of such shares as Atlas shareholders will cease, except the right to receive the redemption price, including an amount equal to accumulated and unpaid dividends through the date fixed for redemption, whether or not declared. Atlas will 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 shares to be redeemed), and the holders of any shares so redeemed will have no claim to any such interest income. Any funds deposited with the Paying Agent hereunder by Atlas for any reason, including, but not limited to, redemption of Atlas Series H 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 Atlas upon Atlas written request, after which repayment the holders of the Atlas Series H Preferred Shares entitled to such redemption or other payment shall have recourse only to Atlas.
If only a portion of the Atlas Series H Preferred Shares represented by a certificate has been called for redemption, upon surrender of the certificate to the Paying Agent (which will occur automatically if the certificate representing such shares is registered in the name of the Securities Depository or its nominee), the Paying Agent will issue to the holder of such shares a new certificate (or adjust the applicable book-entry account) representing the number of Atlas Series H Preferred Shares represented by the surrendered certificate that have not been called for redemption.
Notwithstanding any notice of redemption, there will be no redemption of any Atlas Series H Preferred Shares called for redemption until funds sufficient to pay the full redemption price of such shares, including all accumulated and unpaid dividends to the date of redemption, whether or not declared, have been deposited by Atlas with the Paying Agent.
Atlas and its affiliates may from time to time purchase the Atlas Series H Preferred Shares, subject to compliance with all applicable securities and other laws. Neither Atlas nor any of its affiliates has any obligation, or any present plan or intention, to purchase any Atlas Series H Preferred Shares. Any shares repurchased and cancelled by Atlas will revert to the status of authorized but unissued preferred shares, undesignated as to series.
Notwithstanding the foregoing, in the event that full cumulative dividends on the Atlas Series H Preferred Shares and any Parity Securities have not been paid or declared and set apart for payment, Atlas may not repurchase, redeem or otherwise acquire, in whole or in part, any Atlas Series H Preferred Shares or Parity Securities except pursuant to a purchase or exchange offer made on the same terms to all holders of Atlas Series H Preferred Shares and any Parity Securities. Common shares and any other Junior Securities may not be redeemed, repurchased or otherwise acquired unless full cumulative dividends on the Atlas Series H Preferred Shares and any Parity Securities for all prior and the then-ending dividend periods have been paid or declared and set apart for payment.
Book-Entry System
All Atlas Series H Preferred Shares will be represented by a single certificate issued to The Depository Trust Company (and its successors or assigns or any other securities depository selected by Atlas), or the Securities Depository, and registered in the name of its nominee (initially, Cede & Co.). The Atlas Series H Preferred Shares will continue to be represented by a single certificate registered in the name of the Securities Depository or its nominee, and no holder of the Atlas Series H Preferred Shares will 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 Atlas has not selected a substitute Securities Depository within 60 calendar days thereafter. Payments and communications made by Atlas to holders of the Atlas Series H Preferred Shares will be duly made by making payments to, and communicating with, the Securities Depository. Accordingly, unless certificates are available to holders of the Atlas Series H Preferred Shares, each holder of Atlas Series H Preferred Shares must rely on (a) the procedures of the Securities Depository and its participants to receive dividends, distributions, any redemption price, liquidation preference and notices, and to direct the exercise of any voting or nominating rights, with respect to such Atlas Series H Preferred Shares and (b) the records of the Securities Depository and its participants to evidence its ownership of such Atlas Series H Preferred Shares.
The Depository Trust Company, the initial Securities Depository, is a New York-chartered limited purpose trust company that performs services for its participants, some of whom (and/or their representatives) own The Depository Trust Company. The Securities Depository maintains lists of its participants and will maintain the positions (i.e. ownership interests) held by its participants in the Atlas Series H Preferred Shares, whether as a holder of the Atlas Series H Preferred Shares for its own account or as a nominee for another holder of the Atlas Series H Preferred Shares.
Atlas Series I Preferred Shares
The following description of the Atlas Series I Preferred Shares does not purport to be complete and is subject to, and qualified in its entirety by reference to, the provisions of Atlas articles of incorporation, including the Atlas Series I Statement of Designation designating the Atlas Series I Preferred Shares and setting forth the rights, preferences and limitations of the Atlas Series I Preferred Shares.
General
There are 6,000,000 Atlas Series I Preferred Shares authorized.
The Atlas Series I Preferred Shares will entitle the holders thereof to receive cumulative cash dividends when, as and if declared by Atlas board of directors out of legally available funds for such purpose. The Atlas Series I Preferred Shares will represent perpetual equity interests in Atlas and will not give rise to a claim for payment of a principal amount at a particular date. As such, the Atlas Series I Preferred Shares will rank junior to all of Atlas indebtedness and other liabilities with respect to assets available to satisfy claims against Atlas.
The Atlas Series I Preferred Shares will not be convertible into common shares or other of Atlas securities and will not have exchange rights or be entitled or subject to any preemptive or similar rights. The Atlas Series I Preferred Shares will not be subject to mandatory redemption or to any sinking fund requirements. The Atlas Series I Preferred Shares are subject to redemption, in whole or in part, at Atlas option commencing on October 30, 2023. See Redemption.
Liquidation Rights
The holders of outstanding Atlas Series I Preferred Shares will be entitled, in the event of any liquidation, dissolution or winding up of Atlas affairs, whether voluntary or involuntary, to receive the liquidation preference of $25.00 per share in cash plus an amount equal to accumulated and unpaid dividends thereon to the date fixed for payment of such amount (whether or not declared), and no more, before any distribution will be made to the holders of Atlas common shares or any other Junior Securities. A consolidation or merger of Atlas with or into any other entity, individually or in a series of transactions, will not be deemed a liquidation, dissolution or winding up of Atlas affairs for this purpose. In the event that Atlas assets available for distribution to holders of the outstanding Atlas Series I Preferred Shares and any Parity Securities are insufficient to permit payment of all required amounts, Atlas
assets then remaining will be distributed among the Atlas Series I Preferred Shares and any Parity Securities, as applicable, ratably on the basis of their relative aggregate liquidation preferences. After payment of all required amounts to the holders of the outstanding Atlas Series I Preferred Shares and Parity Securities, Atlas remaining assets and funds will be distributed among the holders of the common shares and any other Junior Securities then outstanding according to their respective rights.
Voting Rights
The Atlas Series I Preferred Shares will have no voting rights except as set forth below or as otherwise provided by Marshall Islands law. In the event that six quarterly dividends, whether consecutive or not, payable on the Atlas Series I Preferred Shares are in arrears, the holders of the Atlas Series I Preferred Shares will have the right, voting as a class together with holders of any other 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 Atlas board of directors, and the size of Atlas board of directors will be increased as needed to accommodate such change (unless the size of Atlas 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 Atlas Series I Preferred Shares voted as a class for the election of such director). The right of such holders of Atlas Series I Preferred Shares to elect a member of Atlas board of directors will continue until such time as all dividends accumulated and in arrears on the Atlas Series I Preferred Shares have been paid in full, at which time such right will terminate, subject to revesting in the event of each and every subsequent failure to pay six quarterly dividends as described above. Upon any termination of the right of the holders of the Atlas Series I Preferred Shares and 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 voting as a class will terminate immediately. Any director elected by the holders of the Atlas Series I Preferred Shares and any other Parity Securities shall be entitled to one vote on any matter before Atlas board of directors.
Unless Atlas has received the affirmative vote or consent of the holders of at least two-thirds of the outstanding Atlas Series I Preferred Shares, voting as a single class, Atlas may not adopt any amendment to its articles of incorporation that adversely alters the preferences, powers or rights of the Atlas Series I Preferred Shares.
In addition, unless Atlas has received the affirmative vote or consent of the holders of at least two-thirds of the outstanding Atlas Series I 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, Atlas may not:
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issue any Parity Securities or Senior Securities if the cumulative dividends payable on outstanding Atlas Series I Preferred Shares are in arrears; or |
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create or issue any Senior Securities. |
On any matter described above in which the holders of the Atlas Series I Preferred Shares are entitled to vote as a class, such holders will be entitled to one vote per share. The Atlas Series I Preferred Shares held by Atlas or any of Atlas subsidiaries or affiliates will not be entitled to vote
Dividends
General
Holders of Atlas Series I Preferred Shares will be entitled to receive, when, as and if declared by Atlas board of directors out of legally available funds for such purpose, cumulative cash dividends from the original issue date.
Dividend Rate
Dividends on the Atlas Series I Preferred Shares will be cumulative, commencing on the original issue date, and payable on each Dividend Payment Date, when, as and if declared by Atlas board of directors or any authorized committee thereof out of legally available funds for such purpose. Up to, but excluding, October 30, 2023 (the Fixed Rate Period) dividends on the Atlas Series I Preferred Shares will accrue at a rate of 8.00% per annum per $25.00 stated liquidation preference per Atlas Series I Preferred Shares. From and including October 30, 2023 (the Floating Rate Period), the dividend rate will be a floating rate equal to the Three-Month LIBOR Rate (as defined below) plus a spread of 5.008% per annum per $25.00 stated liquidation preference per Atlas Series I Preferred Share.
For each Dividend Period during the Floating Rate Period, the Three-Month LIBOR Rate will be determined by Atlas, as of the applicable Dividend Determination Date (as defined below), in accordance with the following provisions:
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the Three-Month LIBOR Rate will be the rate (expressed as a percentage per year) for deposits in U.S. dollars having an index maturity of three months, in amounts of at least $1,000,000, as such rate appears on Reuters Page LIBOR01 at approximately 11:00 a.m. (London time) on the relevant Dividend Determination Date; or |
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if no such rate appears on Reuters Page LIBOR01 or if the Reuters Page LIBOR01 is not available at approximately 11:00 a.m. (London time) on the relevant Dividend Determination Date, then Atlas will select four nationally-recognized banks in the London interbank market and request that the principal London officers of those four selected banks provide Atlas with their offered quotation for deposits in U.S. dollars for a period of three months, commencing on the first day of the applicable Dividend Period, to prime banks in the London interbank market at approximately 11:00 a.m. (London time) on that Dividend Determination Date for the applicable Dividend Period. Offered quotations must be based on a principal amount equal to an amount that, in Atlas discretion, is representative of a single transaction in U.S. dollars in the London interbank market at that time. If at least two quotations are provided, the Three-Month LIBOR Rate for such Dividend Period will be the arithmetic mean (rounded upward if necessary, to the nearest 0.00001 of 1%) of those quotations. If fewer than two quotations are provided, the Three-Month LIBOR Rate for such |
Dividend Period will be the arithmetic mean (rounded upward if necessary, to the nearest 0.00001 of 1%) of the rates quoted at approximately 11:00 a.m. (New York City time) on that Dividend Determination Date for such Dividend Period by three nationally-recognized banks in New York, New York, selected by Atlas, for loans in U.S. dollars to nationally-recognized European banks (as selected by Atlas), for a period of three months commencing on the first day of such Dividend Period. The rates quoted must be based on an amount that, in Atlas discretion, is representative of a single transaction in U.S. dollars in that market at that time. If no quotation is provided as described above, then if a Calculation Agent (as defined below) has not been appointed at such time, Atlas will appoint a Calculation Agent who shall, after consulting such sources as it deems comparable to any of the foregoing quotations or display page, or any such source as it deems reasonable from which to estimate LIBOR or any of the foregoing lending rates, shall determine LIBOR for the second London Business Day immediately preceding the first day of such Dividend Period in its sole discretion. If the Calculation Agent is unable or unwilling to determine LIBOR as provided in the immediately preceding sentence, the Calculation Agent will use a substitute or successor base rate that it has determined in its sole discretion is most comparable to the Three-Month LIBOR Rate, provided that if the Calculation Agent determines there is an industry-accepted substitute or successor base rate, then the Calculation Agent shall use such substitute or successor base rate. If the Calculation Agent has determined a substitute or successor base rate in accordance with the immediately preceding sentence, the Calculation Agent in its sole discretion may determine what business day convention to use, the definition of business day, the dividend determination date to be used and any other relevant methodology for calculating such substitute or successor base rate, including any adjustment factor needed to make such substitute or successor base rate comparable to the Three-Month LIBOR Rate, in a manner that is consistent with industry-accepted practices for such substitute or successor base rate.
Notwithstanding the foregoing:
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If Atlas determines on the relevant Dividend Determination Date that the Three-Month LIBOR Rate has been discontinued, then Atlas will appoint a Calculation Agent and the Calculation Agent will use a substitute or successor base rate that it has determined in its sole discretion is most comparable to the Three-Month LIBOR Rate, provided that if the Calculation Agent determines there is an industry-accepted substitute or successor base rate, then the Calculation Agent shall use such substitute or successor base rate, and |
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If the Calculation Agent has determined a substitute or successor base rate in accordance with the foregoing, the Calculation Agent in its sole discretion may determine what business day convention to use, the definition of business day, the dividend determination date to be used and any other relevant methodology for calculating such substitute or successor base rate, including any adjustment factor needed to make such substitute or successor base rate comparable to the Three-Month LIBOR Rate, in a manner that is consistent with industry-accepted practices for such substitute or successor base rate. |
Calculation Agent means a third party independent financial institution of national standing with experience providing such services, which has been selected by Atlas.
Dividend Determination Date means the London Business Day (as defined below) immediately preceding the first date of the applicable Dividend Period.
Dividend Period means the period from, and including, a Dividend Payment Date to, but excluding, the next succeeding Dividend Payment Date, except for the initial Dividend Period.
London Business Day means any day on which dealings in deposits in U.S. dollars are transacted in the London interbank market.
Reuters Page LIBOR01 means the display so designated on the Reuters 3000 Xtra (or such other page as may replace the LIBOR01 page on that service, or such other service as may be nominated by the ICE Benchmark Administration Limited, or ICE, or its successor, or such other entity assuming the responsibility of ICE or its successor in the event ICE or its successor no longer does so, as the successor service, for the purpose of displaying London interbank offered rates for U.S. dollar deposits).
Dividend Payment Dates
The Dividend Payment Dates for the Atlas Series I Preferred Shares will be each January 30, April 30, July 30 and October 30. Dividends will accumulate in each dividend period from and including the preceding Dividend Payment Date or the initial issue date, as the case may be, to but excluding the applicable Dividend Payment Date for such dividend period, and dividends will accrue on accumulated dividends at the applicable dividend rate. If any Dividend Payment Date during the Fixed Rate Period otherwise would fall on a day that is not a Business Day, declared dividends will be paid on the immediately succeeding Business Day without the accumulation of additional dividends for the period between the Dividend Payment date and such immediately succeeding Business Day. If any Dividend Payment Date during the Floating Rate Period otherwise would fall on a day that is not a Business Day, then the Dividend Payment Date will be the immediately succeeding Business Day. If any such Dividend Payment Date is postponed during the Floating Rate Period as described in the immediately preceding sentence, the amount of the dividend for the relevant Dividend Period will be adjusted accordingly. Dividends payable on the Atlas Series I Preferred Shares for any Dividend Period during the Fixed Rate Period will be calculated based on a 360-day year consisting of twelve 30-day months. Dividends payable on the Atlas Series I Preferred Shares for any Dividend Period during the Floating Rate Period will be calculated based on a 360-day year and the number of days actually elapsed during such Dividend Period.
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.
Payment of Dividends
Not later than the close of business, New York City time, on each Dividend Payment Date, Atlas will pay those dividends, if any, on the Atlas Series I Preferred Shares that have been declared by Atlas board of directors to the holders of such shares as such holders names appear on Atlas stock transfer books maintained by the Registrar and Transfer Agent on the applicable Record Date. The applicable record date, or the Record Date, will 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 will be such date as may be designated by Atlas board of directors in accordance with Atlas bylaws then in effect and the Atlas Series I Statement of Designation.
So long as the Atlas Series I Preferred Shares are held of record by the nominee of the Securities Depository, declared dividends will be paid to the Securities Depository in same-day funds on each Dividend Payment Date. The Securities Depository will credit accounts of its participants in accordance with the Securities Depositorys normal procedures. The participants will be responsible for holding or disbursing such payments to beneficial owners of the Atlas Series I Preferred Shares in accordance with the instructions of such beneficial owners.
No dividend may 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 (a) full cumulative dividends have been or contemporaneously are being paid or provided for on all outstanding Atlas Series I Preferred Shares and any Parity Securities through the most recent respective dividend payment dates and (b) Atlas is in compliance with the Net Worth to Preferred Stock Ratio described above. Accumulated dividends in arrears for any past dividend period may be declared by Atlas board of directors and paid on any date fixed by Atlas board of directors, whether or not a Dividend Payment Date, to holders of the Atlas Series I 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 Atlas Series I Preferred Shares and any Parity Securities have not been declared and paid, or if sufficient funds for the payment thereof have not been set apart, payment of accumulated dividends in arrears on the Atlas Series I Preferred Shares and any Parity Securities will be made in order of their respective dividend payment dates, commencing with the earliest. If less than all dividends payable with respect to all Atlas Series I Preferred Shares and any Parity Securities are paid, any partial payment will be made pro rata with respect to the Atlas Series I Preferred Shares and any Parity Securities entitled to a dividend payment at such time in proportion to the aggregate amounts remaining due in respect of such shares at such time. Holders of the Atlas Series I Preferred Shares will 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 under DividendsDividend Rate, no interest or sum of money in lieu of interest will be payable in respect of any dividend payment which may be in arrears on the Atlas Series I Preferred Shares.
Redemption
Optional Redemption
Commencing on October 30, 2023, Atlas may redeem, at Atlas option, in whole or in part, the Atlas Series I Preferred Shares at a redemption price in cash equal to $25.00 per share plus an amount equal to all accumulated and unpaid dividends thereon to the date of redemption, whether or not declared. Any such optional redemption shall be effected only out of funds legally available for such purpose.
Redemption Procedures
Atlas will give notice of any redemption by mail, postage prepaid, not less than 15 days and not more than 60 days before the scheduled date of redemption, to the holders of any shares to be redeemed as such holders names appear on Atlas stock transfer books maintained by the Registrar and Transfer Agent at the address of such holders shown therein. Such notice shall state: (a) the redemption date, (b) the number of Atlas Series I Preferred Shares to be redeemed and, if less than all outstanding Atlas Series I Preferred Shares are to be redeemed, the number (and the identification) of shares to be redeemed from such holder, (c) the redemption price, (d) the place where the Atlas Series I Preferred Shares are to be redeemed and shall be presented and surrendered for payment of the redemption price therefor and (e) that dividends on the shares to be redeemed will cease to accumulate from and after such redemption date.
If fewer than all of the outstanding Atlas Series I Preferred Shares are to be redeemed, the number of shares to be redeemed will be determined by Atlas, and such shares will be redeemed by such method of selection as the Securities Depository shall determine, with adjustments to avoid redemption of fractional shares. So long as all Atlas Series I Preferred Shares are held of record by the nominee of the Securities Depository, Atlas will give notice, or cause notice to be given, to the Securities Depository of the number of Atlas Series I Preferred Shares to be redeemed, and the Securities Depository will determine the number of Atlas Series I Preferred Shares to be redeemed from the account of each of its participants holding such shares in its participant account. Thereafter, each participant will select the number of shares to be redeemed from each beneficial owner for whom it acts (including the participant, to the extent it holds Atlas Series I Preferred Shares for its own account). A participant may determine to redeem Atlas Series I Preferred Shares from some beneficial owners (including the participant itself) without redeeming Atlas Series I Preferred Shares from the accounts of other beneficial owners.
So long as the Atlas Series I Preferred Shares are held of record by the nominee of the Securities Depository, the redemption price will be paid by the Paying Agent to the Securities Depository on the redemption date. The Securities Depositorys normal procedures provide for it to distribute the amount of the redemption price in same-day funds to its participants who, in turn, are expected to distribute such funds to the persons for whom they are acting as agent.
If Atlas gives or causes to be given a notice of redemption, then Atlas will deposit with the Paying Agent funds sufficient to redeem the Atlas Series I Preferred Shares as to which notice has been given by the close of business, New York City time, no later than the Business Day immediately preceding the date fixed for redemption, and will give the Paying Agent irrevocable instructions and authority to pay the redemption price to the holder or holders thereof upon surrender or deemed surrender (which will occur automatically if the certificate representing such shares is issued in the name of the Securities Depository or its nominee) of the certificates therefor. If notice of redemption shall have been given, then from and after the date fixed for redemption, unless Atlas defaults in providing funds sufficient for such redemption at the time and place specified for payment pursuant to the notice, all dividends on such shares will cease to accumulate and all rights of holders of such shares as Atlas shareholders will cease, except the right to receive the redemption price, including an amount equal to accumulated and unpaid dividends through the date fixed for redemption, whether or not declared. Atlas will 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 shares to be redeemed), and the holders of any shares so redeemed will have no claim to any such interest income. Any funds deposited with the Paying Agent hereunder by Atlas for any reason, including, but not limited to, redemption of Atlas Series I 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 Atlas upon Atlas written request, after which repayment the holders of the Atlas Series I Preferred Shares entitled to such redemption or other payment shall have recourse only to Atlas.
If only a portion of the Atlas Series I Preferred Shares represented by a certificate has been called for redemption, upon surrender of the certificate to the Paying Agent (which will occur automatically if the certificate representing such shares is registered in the name of the Securities Depository or its nominee), the Paying Agent will issue to the holder of such shares a new certificate (or adjust the applicable book-entry account) representing the number of Atlas Series I Preferred Shares represented by the surrendered certificate that have not been called for redemption.
Notwithstanding any notice of redemption, there will be no redemption of any Atlas Series I Preferred Shares called for redemption until funds sufficient to pay the full redemption price of such shares, including all accumulated and unpaid dividends to the date of redemption, whether or not declared, have been deposited by Atlas with the Paying Agent.
Atlas and its affiliates may from time to time purchase the Atlas Series I Preferred Shares, subject to compliance with all applicable securities and other laws. Neither Atlas nor any of its affiliates has any obligation, or any present plan or intention, to purchase any Atlas Series I Preferred Shares. Any shares repurchased and cancelled by Atlas will revert to the status of authorized but unissued preferred shares, undesignated as to series.
Notwithstanding the foregoing, in the event that full cumulative dividends on the Atlas Series I Preferred Shares and any Parity Securities have not been paid or declared and set apart for payment, Atlas may not repurchase, redeem or otherwise acquire, in whole or in part, any Atlas Series I Preferred Shares or Parity Securities except pursuant to a purchase or exchange offer made on the same terms to all holders of Atlas Series I Preferred Shares and any Parity Securities. Common shares and any other Junior Securities may not be redeemed, repurchased or otherwise acquired unless full cumulative dividends on the Atlas Series I Preferred Shares and any Parity for all prior and the then-ending dividend periods have been paid or declared and set apart for payment.
Book-Entry System
All Atlas Series I Preferred Shares will be represented by a single certificate issued to The Depository Trust Company (and its successors or assigns or any other securities depository selected by Atlas), or the Securities Depository, and registered in the name of its nominee (initially, Cede & Co.). The Atlas Series I Preferred Shares will continue to be represented by a single certificate registered in the name of the Securities Depository or its nominee, and no holder of the Atlas Series I Preferred Shares will 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 Atlas has not selected a substitute Securities Depository within 60 calendar days thereafter. Payments and communications made by Atlas to holders of the Atlas Series I Preferred Shares will be duly made by making payments to, and communicating with, the Securities Depository. Accordingly, unless certificates are available to holders of the Atlas Series I Preferred Shares, each holder of Atlas Series I Preferred Shares must rely on (a) the procedures of the Securities Depository and its participants to receive dividends, distributions, any redemption price, liquidation preference and notices, and to direct the exercise of any voting or nominating rights, with respect to such Atlas Series I Preferred Shares and (b) the records of the Securities Depository and its participants to evidence its ownership of such Atlas Series I Preferred Shares.
The Depository Trust Company, the initial Securities Depository, is a New York-chartered limited purpose trust company that performs services for its participants, some of whom (and/or their representatives) own The Depository Trust Company. The Securities Depository maintains lists of its participants and will maintain the positions (i.e. ownership interests) held by its participants in the Atlas Series I Preferred Shares, whether as a holder of the Atlas Series I Preferred Shares for its own account or as a nominee for another holder of the Atlas Series I Preferred Shares.
Exhibit 99.2
THE AMENDED AND RESTATED DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN
Effective May 29, 2008, Seaspan Corporation (Seaspan) established the Dividend Reinvestment and Stock Purchase Plan, as amended (DRIP), and immediately prior to the completion of Seaspans holding company reorganization (Reorganization), 20 million Class A common shares of Seaspan (Seaspan common shares) were subject to such plan.
On February 27, 2020 (the Transaction Date), Seaspan completed the Reorganization. The Reorganization was effected pursuant to the Agreement and Plan of Merger, dated as of November 20, 2019, as amended (the Merger Agreement), by and among Seaspan, Atlas Corp., a wholly owned subsidiary of Seaspan (Atlas), and Seaspan Holdco V Ltd., a wholly owned subsidiary of Atlas (Merger Sub). Under the terms of the Merger Agreement, at the effective time of the Merger, Merger Sub merged with and into Seaspan (the Merger), and the separate corporate existence of Merger Sub ceased, with Seaspan continuing as the surviving corporation in the Merger and a direct, wholly owned subsidiary of Atlas. In connection with the Reorganization, all outstanding Seaspan common shares were canceled, and Atlas issued, in respect of each canceled Seaspan common share, one common share of Atlas (common share) to the holder of such canceled Seaspan common share. As of the Transaction Date, responsibility for the DRIP, including administration of the DRIP, was assumed by Atlas and common shares of Atlas will be issued to participants in the DRIP.
The following questions and answers explain and constitute the Amended and Restated Dividend Reinvestment and Stock Purchase Plan, which we refer to as the plan, as assumed by Atlas in connection with the Reorganization.
If you decide not to participate in the plan, you will receive cash dividends, as declared and paid in the usual manner.
The plan is open to shareholders of Atlas and investors who become shareholders of Atlas in the future.
Shareholders are either record owners or beneficial owners. You are a record owner if you own common shares in your own name. You are a beneficial owner if you own common shares that are registered in a name other than your own name (for example, the shares are held in the name of a broker, bank or other nominee). A record owner may participate directly in the plan. If you are a beneficial owner, however, you will either have to become a record owner by having one or more shares transferred into your name or coordinate your participation through the broker, bank or other nominee in whose name your shares are held.
PURPOSE
1. What is the purpose of the plan?
The primary purpose of the plan is to provide shareholders with an economical and convenient way to increase their investment in Atlas Shareholders are permitted to invest cash dividends in common shares without paying any brokerage commission or service charge and, at certain times, at a discount from the Market Price (as described in Question 14). Please read Question 14 with respect to the purchase price for common shares purchased under the plan.
The plan is primarily intended for the benefit of long-term investors, and not for the benefit of individuals or institutions who engage in short-term trading activities that could cause aberrations in the overall trading volume of our common shares. From time to time, financial intermediaries may engage in positioning transactions in order to benefit from the discount from the Market Price for common shares acquired through the reinvestment of dividends under the plan. These transactions may cause fluctuations in the trading volume of our common shares. We reserve the right to modify, suspend or terminate participation in the plan by otherwise eligible holders of common shares in order to eliminate practices which are not consistent with the purposes of the plan.
OPTIONS AVAILABLE TO PARTICIPANTS
Information on how to participate in the plan is set forth in Questions 5 through 13.
2. What are my investment options under the plan?
Shareholders may elect to have all, a portion or none of their cash dividends paid on their common shares automatically reinvested in common shares through the dividend reinvestment program. Cash dividends are paid on common shares when and as declared by our board of directors, generally on a quarterly basis. Subject to the availability of common shares registered for issuance under the plan, there is no limitation on the amount of dividends you may reinvest under the dividend reinvestment program.
3. How can I change my investment options?
You may change your investment options at any time by requesting a new authorization form and returning it to the plan administrator at the address set forth in Question 7. Any authorization form which is returned to the plan administrator to change your investment options will be effective in accordance with the schedule described in Question 11.
ADVANTAGES AND DISADVANTAGES
4. What are the advantages and disadvantages of the plan?
Before deciding whether to participate in the plan, you should consider the following advantages and disadvantages of the plan.
Advantages
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The plan provides you with the opportunity to reinvest cash dividends paid on all or a portion of common shares that you hold toward the purchase of additional common shares. Dividend reinvestments made directly through us are eligible for a discount of up to 5% from the average of the high and low sales prices on the applicable investment date. |
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There are no costs associated with the plan that you must pay, except for certain costs if you decide to sell common shares you purchased through the plan or terminate your participation in the plan (please read Questions 23 and 24 for a description of these costs). You will not pay brokerage commissions or service fees to reinvest your dividends through the plan. |
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As noted above, you will have the convenience of having all or a portion of your cash dividends automatically reinvested in additional common shares. In addition, since the plan administrator will credit fractional common shares to your plan account, you will receive full investment of your dividends. (Please read Questions 15 and 20.) |
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You will have the option of having your stock certificates held for safekeeping by the plan administrator for a one-time charge of $7.50, insuring your protection against loss, theft or destruction of the certificates representing your common shares. |
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You will simplify your record keeping by receiving periodic statements which will reflect all current activity in your plan account, including dividend reinvestments, sales and latest balances. (Please read Question 19.) |
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At any time, you may direct the plan administrator to sell or transfer all or a portion of the common shares held in your plan account. Sales of common shares credited to your plan account may be sold as often as daily but at least within five (5) business days of receipt. (Please read Question 23.) |
Disadvantages
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No interest will be paid by us or the plan administrator on dividends held pending reinvestment or investment. |
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You may not know the actual number of common shares that you have acquired through the plan until after the investment date. |
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Your participation in the dividend reinvestment program generally will result in your being treated, for U.S. federal income tax purposes, as having received a distribution equal to the fair market value of the common shares on the dividend payment date. The fair market value of the common shares on the |
dividend payment date may be higher or lower than the Market Price or the average price per share, as applicable, used to determine the number of common shares acquired pursuant to the plan. The distribution will be includable in your income as a taxable dividend to the extent of our earnings and profits for U.S. federal income tax purposes even though no cash will have been received to pay any tax that becomes due. |
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Sales of common shares credited to your plan account will involve a nominal fee per transaction to be deducted from the proceeds of the sale by the plan administrator (if you request the plan administrator to make such sale), plus any brokerage commission and any applicable stock transfer taxes on the sales. (Please read Question 23.) |
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Because the purchase price for stock purchased directly from us under the plan is based on the sales price over the five (5) trading days prior to the investment date, it is possible that the actual price you pay for common shares acquired under the plan may be higher than the amount for which the common shares could have been purchased in the open market on the investment date. |
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You cannot pledge common shares deposited in your plan account until the shares are withdrawn from the plan. |
ADMINISTRATION AND PLAN ADMINISTRATOR
5. Who administers the plan?
We have appointed American Stock Transfer & Trust Company, LLC to be the plan administrator.
6. What are the responsibilities of the plan administrator?
The plan administrators responsibilities include:
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administration of the plan; |
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acting as your agent; |
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keeping records of all plan accounts; |
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sending statements of activity to each participant; |
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purchasing and selling, on your behalf, all common shares under the plan; and |
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the performance of other duties relating to the plan. |
Holding Shares. The plan administrator will hold any shares you choose to enroll in the dividend reinvestment program and will register them in the plan administrators name (or that of its nominee) as your agent.
Receipt of Dividends. As record holder for the plan shares, the plan administrator will credit the dividends accrued on your plan shares as of the dividend record date to your plan account on the basis of whole or fractional plan shares held in such account and will automatically reinvest such dividends in additional common shares. Any remaining portion of cash dividends not designated for reinvestment will be sent to you.
Other Responsibilities. The plan administrator also acts as dividend disbursing agent, transfer agent and registrar for our common shares. If the plan administrator resigns or otherwise ceases to act as the plan administrator, we will appoint a new plan administrator to administer the plan.
7. How do I contact the plan administrator?
You should send all transaction requests to the plan administrator at:
American Stock Transfer & Trust Company, LLC
Wall Street Station
P.O. Box 922
New York, New York 10269-0560
You should send all correspondence to the plan administrator at:
American Stock Transfer & Trust Company, LLC
6201 Fifteenth Avenue
Brooklyn, New York 11219
Please mention Atlas and this plan in all correspondence. In addition, you may call the plan administrator at (866) 665-2272 or contact the plan administrator via the Internet at www.amstock.com.
PARTICIPATION
8. Who is eligible to participate?
The following persons are eligible to participate in the plan:
Record Owners. All record owners (shareholders whose shares are held in their name on the records kept by our transfer agent) of common shares are eligible to participate directly in this plan.
Beneficial Owners. Beneficial owners (shareholders whose shares are held in the name of a broker, bank or other nominee on the records kept by our transfer agent) of common shares may participate in two ways. A beneficial owner may participate directly by becoming a record owner by having one or more shares transferred into his or her name from that of the applicable broker, bank or other nominee. Alternatively, a beneficial owner may seek to arrange with the broker, bank or other nominee that is the record owner of his or her shares to participate on the beneficial owners behalf.
9. Are there limitations on participation in the plan other than those described above?
Foreign Law Restrictions. You may not participate in the plan if it would be unlawful for you to do so in the jurisdiction where you are a citizen or reside. If you are a citizen or resident of a country other than the United States, you should confirm that by participating in the plan you will not violate local laws governing, among other things, taxes, currency and exchange controls, stock registration and foreign investments.
Exclusion from Plan for Short-Term Trading or Other Practices. You should not use the plan to engage in short-term trading activities that could change the normal trading volume of the common shares. If you do engage in short-term trading activities, we may prevent you from participating in the plan. We reserve the right to modify, suspend or terminate participation in the plan, by otherwise eligible holders of common shares, in order to eliminate practices which we determine, in our sole discretion, are not consistent with the purposes or operation of the plan or which may adversely affect the price of the common shares.
Restrictions at Our Discretion. In addition to the restrictions described above, we reserve the right to prevent you from participating in the plan for any other reason. We have the sole discretion to exclude you from or terminate your participation in the plan.
10. How do I enroll in the plan?
Record Owners. Record owners may join the plan by completing and signing an authorization form (please read Question 12) and returning it to the plan administrator, or by following the enrollment procedures specified on the plan administrators website at www.amstock.com. Authorization forms may be obtained at any time by written request, by contacting the plan administrator at the address and telephone number provided in Question 7, or via the Internet at the plan administrators website at www.amstock.com.
Beneficial Owners. A beneficial owner may request that the number of shares the beneficial owner wishes to be enrolled in the plan be registered by the broker, bank or other nominee in the beneficial owners own name as record owner in order to participate directly in the plan. Alternatively, beneficial owners who wish to join the plan may instruct their broker, bank or other nominee to arrange participation in the plan on the beneficial owners behalf. The broker, bank or other nominee should then make arrangements with its securities depository, and the securities depository will provide the plan administrator with the information necessary to allow the beneficial owner to participate in the plan.
To facilitate participation by beneficial owners, we have made arrangements with the plan administrator to reinvest dividends by record holders such as brokers, banks and other nominees, on behalf of beneficial owners. If you are an interested beneficial owner, be sure that your broker, bank or other nominee passes along the proceeds of any applicable discount to your account.
Alternatively, a beneficial owner may simply request that the number of shares the beneficial owner wishes to be enrolled in the plan be re-registered by the broker, bank or other nominee in the beneficial owners own name as record owner in order to participate directly in the plan.
Non-Shareholders. A non-shareholder must first become a record owner before becoming eligible to participate in the plan.
11. When will my participation in the plan begin?
If your authorization form (please read Question 12) is received by the plan administrator by the record date established for a particular dividend, reinvestment will commence with that dividend. If your authorization form is received after the record date established for a particular dividend, reinvestment will begin on the dividend payment date following the next record date if you are, or your broker, bank or other nominee is, still a record owner on such record date.
Once you enroll in the plan, you will remain enrolled in the plan until you withdraw from the plan, we terminate your participation in the plan or we terminate the plan.
12. What does the authorization form provide?
The authorization form appoints the plan administrator as your agent and directs us to pay to the plan administrator, on the applicable record date, the cash dividends on your common shares that are enrolled in the dividend reinvestment program, including all whole and fractional common shares that are subsequently credited to your plan account, as they are added with each reinvestment. These cash dividends with respect to shares enrolled in the dividend reinvestment program will be automatically reinvested by the plan administrator in common shares. Any remaining cash dividends with respect to shares not enrolled in the dividend reinvestment program will be paid directly to you.
The authorization form provides for the purchase of additional common shares through the following investment options:
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Full Dividend Reinvestment This option directs the administrator to reinvest cash dividends on all of the common shares owned by you then or in the future into additional common shares. |
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Partial Dividend Reinvestment This option directs the administrator to reinvest cash dividends paid on a specified number of common shares owned by you into additional common shares. We will continue to pay you cash dividends on shares that you own for which you do not elect dividend reinvestment, when and if such dividends are declared by our board of directors. |
Unless you designate a specific amount of your shares for enrollment in the dividend reinvestment program, you will be enrolled as having selected the full dividend reinvestment option. In addition, if you return a properly executed authorization form to the plan administrator without electing an investment option, you will be enrolled as having selected the full dividend reinvestment option.
You may select any one of the options desired, and the designated options will remain in effect until you specify otherwise by indicating a different option on a new authorization form, by withdrawing some or all shares from the plan in favor of receiving cash dividends or in order to sell your common shares, or until the plan is terminated.
13. What does the plan administrators website provide?
Instead of submitting an authorization form (please read Question 12), you can participate in the plan by accessing the plan administrators website at www.amstock.com. You may do the following online:
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enroll or terminate your participation in the plan; |
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sell common shares; |
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request a stock certificate for non-fractional common shares held in your plan account; and |
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view your account history and balances. |
PURCHASES AND PRICES OF SHARES
14. What will be the price of shares purchased under the plan?
Purchase Price and Discounts. The purchase price of common shares under the plan depends on whether we issue new shares to you or the plan administrator obtains your shares by purchasing them in the open market, and whether any discount is being offered by us at the time of the applicable common share purchase.
We may offer a discount off of the Market Price (as determined below) on shares purchased directly from us, which discount may not exceed 5% of the average of the high and low sales prices on the applicable investment date. The discount rate is set by our board of directors, and we are currently offering a discount of 3%. We may change or discontinue such discount rate at any time and without notice to the plan participants after we review current market conditions, the level of participation in the plan and our current projected capital needs. The purchase price for common shares acquired directly from us will be the Market Price of the common shares less any discount that we may elect to offer, but in no event will the discount exceed 5% of the average of the high and low sales prices on the applicable investment date.
The purchase price for common shares that the plan administrator purchases from parties other than us, either in the open market or in privately negotiated transactions, will be 100% of the average price per share actually paid by the plan administrator, excluding any brokerage commissions. We are not required to provide any notice to you as to the source of the common shares to be purchased under the plan.
Determination of Market Price and Average Price per Share. For purposes of the calculation of the purchase price for shares purchased directly from us, Market Price is equal to the average of the daily high and low sales prices, computed to four decimal places, of our common shares on The New York Stock Exchange, as reported in The Wall Street Journal, during the five (5) days on which The New York Stock Exchange is open and for which trades in our common shares are reported immediately preceding the investment date, or, if no trading occurs in our common shares on one or more of such days, for the five (5) days immediately preceding the investment date for which trades are reported.
For purposes of the calculation of the purchase price for shares purchased from parties other than us, either on the open market or in privately negotiated transactions, average price per share is equal to the weighted average of the actual prices paid, computed to four decimal places, for all of the common shares purchased with all participants reinvested dividends.
Plan Administrators Control of Purchase Terms. When open market purchases are made by the plan administrator, these purchases may be made on any securities exchange where our common shares are traded, in the over-the-counter market or by negotiated transactions, and may be subject to the terms with respect to price, delivery and other matters to which the plan administrator agrees. We do not, and you will not, have any authorization or power to direct the time or price at which shares will be purchased or the selection of the broker or dealer through or from whom purchases are to be made by the plan administrator. However, when open market purchases are made by the plan administrator, the plan administrator will use its reasonable efforts to purchase the shares at the lowest possible price.
15. How will the number of shares purchased for my account be determined?
Your account will be credited with the number of shares, including fractions computed to three decimal places, equal to the total amount to be invested on your behalf, divided by the applicable price per share, calculated pursuant to the methods described above, as applicable.
The total amount to be invested will depend on the amount of any dividends paid on the number of shares you own and have designated for reinvestment. Subject to the availability of common shares registered for issuance under the plan, there is no total maximum number of shares available for issuance pursuant to the reinvestment of dividends.
The amount of reinvested dividends to be invested will be reduced by any amount we are required to deduct for federal tax withholding purposes.
16. What is the source of common shares purchased under the plan?
The plan administrator will purchase common shares either directly from us or from parties other than us, either on the open market or through privately negotiated transactions, or by a combination of the foregoing. We will determine the source of the common shares to be purchased under the plan after a review of current market conditions and our current and projected capital needs. We and the plan administrator are not required to provide any prior notice to you as to the source of the common shares to be purchased under the plan.
17. What are investment dates and when will dividends be invested?
Shares purchased under the plan will be purchased on the investment date. The investment date will be (i) if acquired directly from us, the quarterly dividend payment date declared by our board of directors or (ii) in the case of open market purchases, as soon as practicable following the date or dates of actual investment.
For the reinvestment of dividends, the record date is the record date declared by our board of directors for that dividend. Likewise, the dividend payment date declared by the board of directors constitutes the investment date. We historically have paid quarterly dividends in or around February, May, August and November. We cannot assure you that we will pay dividends according to this schedule in the future, and nothing contained in the plan obligates us to do so. Neither we nor the plan administrator will be liable when conditions, including compliance with the rules and regulations of the SEC, prevent the plan administrator from buying common shares or interfere with the timing of purchases. We pay dividends as and when declared by our board of directors. We cannot assure you that we will declare or pay a dividend in the future, and nothing contained in the plan obligates us to do so. The plan does not represent a guarantee of future dividends.
Shares will be allocated and credited to your plan accounts on the appropriate investment date.
No interest will be paid on cash dividends pending investment or reinvestment under the terms of the plan.
18. Will I incur expenses in connection with my participation under the plan?
You will not pay brokerage commissions or service fees to purchase common shares through the plan. We will pay all other costs of administration of the plan. However, if you request that the plan administrator sell all or any portion of your shares or if you terminate your participation in the plan, you will incur fees as described under Questions 23 and 24, below. Additionally, if you elect to send certificates for any other of our common shares that you own to the plan administrator for safekeeping, you will incur a one-time fee of $7.50 for this service. This fee will be waived by the plan administrator if you are selling your certificated shares at the same time you are committing shares with the plan administrator for safekeeping.
REPORTS TO PARTICIPANTS
19. How will I keep track of my investments?
You will receive a statement of your account following each purchase of additional shares. This detailed statement will provide you with the following information with respect to your plan account:
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price paid per common share; |
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total number of common shares purchased, including fractional shares; |
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date of stock purchases; and |
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total number of common shares in your plan account. |
You should retain these statements to determine the tax cost basis of the shares purchased for your account under the plan. In addition, you will receive copies of other communications sent to our shareholders, including our annual report to shareholders, the notice of annual meeting and proxy statement in connection with our annual meeting of shareholders and the U.S. Internal Revenue Service (the IRS) information for reporting dividends paid.
You can also view your account history and balance online by accessing the plan administrators website at www.amstock.com.
DIVIDENDS ON FRACTIONS OF SHARES
20. Will I be credited with dividends on fractions of shares?
Yes. Any fractional share held in your plan account (please read Question 15) that has been designated for participation in the dividend reinvestment program of the plan will receive a proportionate amount of any dividend declared on our common shares.
CERTIFICATES FOR SHARES
21. Will I receive certificates for shares purchased?
Safekeeping of Certificates. Normally, common shares purchased for you under the plan will be held in the name of the plan administrator or its nominee. The plan administrator will credit the shares to your plan account in book-entry form. This service protects against loss, theft or destruction of certificates evidencing common shares.
You may also elect to deposit with the plan administrator certificates for other common shares that you own and that are registered in your name for safekeeping under the plan for a one-time fee of $7.50. This fee will be waived by the plan administrator if you are selling your certificate shares at the same time you are committing shares with the plan administrator for safekeeping. The plan administrator will credit the common shares represented by the certificates to your account in book-entry form and will combine the shares with any whole and fractional shares then held in your plan account. In addition to protecting against the loss, theft or destruction of your certificates, this service is convenient if and when you sell common shares through the plan. Because you bear the risk of loss in sending certificates to the plan administrator, you should send certificates by registered mail, return receipt requested, and properly insured to the address specified in Question 7 above.
Issuance of Certificates. No certificates will be issued to you for shares in the plan unless you submit a written request to the plan administrator or until your participation in the plan is terminated. At any time, you may request the plan administrator to send a certificate for some or all of the whole shares credited to your account. This request should be mailed to the plan administrator at the address set forth in the answer to Question 7 or made via www.amstock.com. There is no fee for this service. Any remaining whole shares and any fraction of a share will remain credited to your plan account. Certificates for fractional shares will not be issued under any circumstances.
22. In whose name will certificates be registered when issued?
Your plan account will be maintained in the name in which your certificates were registered at the time of your enrollment in the plan. Stock certificates for those shares purchased under the plan will be similarly registered when issued upon your request. If your shares are held through a broker, bank or other nominee, such request must be placed through your broker, bank or other nominee.
SALE OF SHARES
23. How do I sell shares held in my plan account?
You may contact the plan administrator to sell all or any part of the shares held in your plan account. After receipt of your request, the plan administrator will sell the shares through a designated broker or dealer. The plan administrator will mail to you a check for the proceeds of the sale, less applicable brokerage commissions, service charges and any taxes. The plan administrator will sell shares as often as daily but at least within five (5) business days of receipt of the sale request, at then current market prices through one or more brokerage firms. If you sell or transfer only a portion of the shares in your plan account, you will remain a participant in the plan and may continue to reinvest dividends. If you have elected to have your dividends reinvested, the plan administrator will continue to reinvest the dividends on the shares credited to your account unless you notify the plan administrator that you wish to withdraw from the plan.
The plan requires you to pay all costs associated with the sale of your shares under the plan. You will receive the proceeds of the sale, less a $15.00 service fee per transaction and a $0.10 per share brokerage commission paid to the plan administrator and any other applicable fees.
If the plan administrator sells all shares held in your plan account, the plan administrator will automatically terminate your account. In this case, you will have to complete and file a new authorization form to rejoin the plan.
WITHDRAWALS AND TERMINATION
24. When may I withdraw from the plan?
You may withdraw from the plan with respect to all or a portion of the shares held in your plan account at any time. If the request to withdraw is received prior to a dividend record date set by our board of directors for determining shareholders of record entitled to receive a dividend, the request will be processed on the first business day following receipt of the request by the plan administrator.
If the request to withdraw from the plan is received by the plan administrator at least three (3) business days prior to the dividend payable date, then that dividend will be paid out in cash to the participant. However, if the request to withdraw from the plan is received less than three (3) business days prior to the dividend payable date, then that dividend will be reinvested. However, all subsequent dividends will be paid out in cash on all balances. There is a $15.00 service fee and $0.10 per share commission for terminating your participation in the plan.
25. How do I withdraw from the plan?
If you wish to withdraw from the plan with respect to all or a portion of the shares in your plan account, you must notify the plan administrator in writing at its mailing address or via its Internet address specified in the answer to Question 7 by utilizing the stub attached to our statement. Upon your withdrawal from the plan or our termination of the plan, certificates for the appropriate number of whole shares credited to your account under the plan will be issued free of charge. A cash payment will be made for any fraction of a share. You will be charged a $15.00 fee and a $0.10 per share commission.
Upon withdrawal from the plan, you may also request in writing that the plan administrator sell all or part of the shares credited to your plan account. (Please read Question 24.)
OTHER INFORMATION
26. May shares in my account be pledged?
You may not pledge any of the common shares in your plan account. Any attempted pledge of these shares will be void. If you wish to pledge shares, you must first withdraw them from the plan.
27. What happens if Atlas declares a dividend payable in shares or declares a share split?
Any dividend payable in shares and any additional shares distributed by us in connection with a share split in respect of shares credited to your plan account will be added to that account. Share dividends or split shares which are attributable to shares registered in your own name and not in your plan account will be mailed directly to you as in the case of shareholders not participating in the plan.
Transaction processing may be curtailed or suspended until the completion of any stock dividend, stock split or similar corporate action.
28. How will shares held by the plan administrator be voted at meetings of shareholders?
If you are a record owner, you will receive a proxy card covering both directly held shares and shares held in the plan. If you hold your shares through a broker, bank or other nominee, you should receive a proxy covering shares held in the plan from your broker, bank or other nominee.
If a proxy is returned properly signed and marked for voting, all of the shares covered by the proxy will be voted as marked. If a proxy is returned properly signed but no voting instructions are given, all of your shares will be voted in accordance with recommendations of our board of directors, unless applicable laws require otherwise. If the proxy is not returned, or if it is returned unexecuted or improperly executed, shares registered in your name may be voted only by you and only in person.
29. What are Atlas responsibilities and those of the plan administrator under the plan?
Neither we, nor any of our affiliates, nor any of our or our affiliates agents, nor the plan administrator, will be liable in administering the plan for any act done in good faith or required by applicable law or for any good faith omission to act, including, without limitation, any claim of liability (a) arising out of failure to terminate your account upon your death or judgment of incompetence prior to the plan administrators receipt of notice in writing of such death or judgment of incompetence, (b) with respect to the price at which shares are purchased or sold and/or the times when such purchases or sales are made, or (c) relating to any fluctuation in the market value of the common shares.
Neither we, nor any of our affiliates, nor any of our or our affiliates agents, nor the plan administrator, will have any duties, responsibilities or liabilities other than those expressly set forth in the plan or as imposed by applicable laws, including federal securities laws. Since the plan administrator has assumed all responsibility for administering the plan, we specifically disclaim any responsibility for any of the plan administrators actions or inactions in connection with the administration of the plan. Neither we, nor any of our affiliates nor any of our or their respective directors, officers, employees or shareholders will have any personal liability under the plan.
We, our affiliates, any of our or our affiliates agents and the plan administrator will be entitled to rely on completed forms and the proof of due authority to participate in the plan, without further responsibility of investigation or inquiry.
30. What will be my responsibilities under the plan?
You should notify the plan administrator promptly in writing of any change of address. The plan administrator will address account statements and other communications to you at the last address of record you provide to the plan administrator.
You will have no right to draw checks or drafts against your plan account or to instruct the plan administrator with respect to any common shares or cash held by the plan administrator except as expressly provided herein.
31. May the plan be changed or discontinued?
Yes. We may suspend, terminate, or amend the plan at any time in our sole discretion. Notice will be sent to you of any suspension or termination, or of any amendment that alters the plan terms and conditions, as soon as practicable after we take such an action. We may also substitute another agent in place of the current plan administrator at any time; you will be promptly informed of any such substitution. We will determine any questions of interpretation arising under the plan and any such determination will be final.
32. Are there any risks associated with the plan?
Your investment in shares held in your plan account is no different from your investment in shares held directly. Neither we nor the plan administrator can assure you a profit or protect you against a loss on the shares that you purchase. You bear the risk of any loss and enjoy the benefits of any gain from market price changes with respect to such shares. You should read carefully the risk factors described in our filings with the SEC before investing in our common shares.
33. How will you interpret and regulate the plan?
We will interpret, regulate and take any other action in connection with the plan that we deem reasonably necessary to carry out the plan. We may adopt rules and regulations to facilitate the administration of the plan. As a participant in the plan, you will be bound by any actions taken by us or the plan administrator.
34. What law governs the plan?
The terms and conditions of the plan and its operation will be governed by the laws of the Republic of the Marshall Islands.
Exhibit 99.3
MATERIAL UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
Material U.S. Federal Income Tax Consequences
This section describes the material U.S. federal income tax consequences of the ownership of Atlas shares. This discussion is based on current provisions of the Code, treasury regulations promulgated under the Code (Treasury Regulations), Internal Revenue Service (IRS) rulings and pronouncements, and judicial decisions now in effect, all of which are subject to change at any time by legislative, judicial or administrative action. Any such changes may be applied retroactively. No rulings from the IRS have been or will be sought with respect to the U.S. federal income tax consequences discussed below. The discussion below is not in any way binding on the IRS or the courts nor does it in any way constitute an assurance that the U.S. federal income tax consequences discussed herein will be accepted by the IRS or the courts.
The U.S. federal income tax consequences to a beneficial owner of Atlas shares may vary depending upon such beneficial owners particular situation or status. This discussion is limited to beneficial owners of Atlas shares who hold such shares as capital assets, and it does not address aspects of U.S. federal income taxation that may be relevant to such beneficial owners that are subject to special treatment under U.S. federal income tax laws, including but not limited to: dealers in securities; banks and other financial institutions; insurance companies; tax-exempt organizations, plans or accounts; persons holding Atlas shares as part of a hedge, straddle or other risk reduction transaction; persons holding shares of Atlas shares through partnerships, trusts or other entities (except as specifically provided below); persons that actually or constructively own 5% or more of the combined voting power of our voting stock (except as specifically provided below) or of the total value of Atlas shares; a person that acquired Atlas shares pursuant to the exercise of employee stock options or otherwise as compensation; persons that purchased or sells Atlas shares as part of a wash sale for tax purposes; U.S. Holders (as defined below) whose functional currency is not the U.S. dollar; and controlled foreign corporations or passive foreign investment companies, as those terms are defined in the Code. In addition, this discussion does not consider the effects of any applicable foreign, state, local or other tax laws, or estate or gift tax considerations, or the alternative minimum tax.
For purposes of this discussion, a U.S. Holder is a beneficial owner of Atlas shares that is, for U.S. federal income tax purposes: an individual that is a citizen or resident of the United States; a corporation (or other entity that is classified as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States or any state thereof (including the District of Columbia); an estate the income of which is subject to U.S. federal income tax regardless of its source; or a trust, if a court within the United States can exercise primary supervision over its administration, and one or more United States persons (as defined in the Code) have the authority to control all of the substantial decisions of that trust (or the trust was in existence on August 20, 1996, was treated as a domestic trust on August 19, 1996 and validly elected to continue to be treated as a domestic trust). For purposes of this discussion, a beneficial owner of Atlas shares (other than a partnership or an entity or arrangement treated as a partnership for U.S. federal income tax purposes) that is not a U.S. Holder is a Non-U.S. Holder.
If a partnership or other entity or arrangement classified as a partnership for U.S. federal income tax purposes holds Atlas shares, the tax treatment of its partners generally will depend upon the status of the partner, the activities of the partnership and certain determinations made at the partner level. If you are a partner in a partnership holding Atlas shares, you should consult your own tax advisor regarding the tax consequences to you of the partnerships ownership of Atlas shares.
We urge beneficial owners of Atlas shares to consult their own tax advisors as to the particular tax considerations applicable to them relating to the ownership and disposition of Atlas shares, including the applicability of U.S. federal, state and local tax laws and non-U.S. tax laws.
United States Federal Income Taxation of U.S. Holders
Distributions
Subject to the discussion of the rules applicable to a PFIC below, any distributions made by us with respect to Atlas shares to a U.S. Holder will constitute dividends, which will be taxable as ordinary income, to the extent of our current or accumulated earnings and profits, as determined under U.S. federal income tax principles. Distributions in excess of our current and accumulated earnings and profits will be treated first as a nontaxable return of capital to the extent of the U.S. Holders tax basis in Atlas shares on a dollar-for-dollar basis and thereafter as capital gain, which will be either long-term or short-term capital gain depending upon whether the U.S. Holder held the shares for more than one year.
In the case of a U.S. Holder that is a corporation owning at least 10 percent of Atlas shares by vote and value, a dividend received by such a U.S. Holder on a share of Atlas shares may be eligible for a dividends-received deduction with respect to the U.S. source portion of such dividends, if any. Such corporate U.S. Holders must have owned such shares for over 46 days during the 91-day period beginning on the date which is 45 days before the ex-dividend date. The Code also provides a dividends-received deduction for a dividend received from a specified 10-percent owned foreign corporation by a U.S. corporation that is a 10% U.S. Shareholder (as defined below under the special rules described in Controlled Foreign Corporations) with respect to the foreign-source portion of such dividend. However, the deduction for the foreign-source portion of dividends received by specified 10-percent owned foreign corporations is generally disallowed in its entirety if the common share with respect to which the dividend is paid is owned by such corporate U.S. Holder for less than 366 days during the 731-day period beginning on the date which is 365 days before the date on which the common share becomes ex-dividend with respect to such dividend.
A U.S. Holder that is a corporation should consider the effect of Section 246A of the Code, which reduces the dividend-received deduction allowed with respect to debt-financed portfolio stock. Furthermore, a U.S. Holder that is a corporation may be required to reduce its basis in Atlas shares as a result of the receipt of certain extraordinary dividends. Dividends paid with respect to Atlas shares should generally be treated as foreign source income and generally will be passive category income for purposes of computing allowable foreign tax credits for U.S. foreign tax credit purposes, unless the source of Atlas income materially changes from the source of income derived by Seaspans historic activities.
Dividends received by a non-corporate U.S. Holder are taxed at ordinary income tax rates (currently, a maximum rate of 37%) unless such dividends constitute qualified dividend income. Qualified dividend income generally includes a dividend paid by a foreign corporation if (i) the stock with respect to which such dividend was paid is readily tradable on an established securities market in the U.S., (ii) the foreign corporation is not a PFIC for the taxable year during which the dividend is paid and the immediately preceding taxable year, (iii) the non-corporate U.S. Holder has owned the stock for more than 60 days during the 121-day period beginning 60 days before the date on which the stock become ex-dividend (and has not entered into certain risk limiting transactions with respect to such stock), and (iv) the non-corporate U.S. Holder is not under an obligation to make related payments with respect to positions in substantially similar or related property. Qualified dividend income is subject to the long-term capital gain tax rate, which is currently a maximum of 20%. In addition, a 3.8% tax may apply to certain investment income. See Medicare Tax below. Because Atlas common shares will be traded on the NYSE, dividends paid to U.S. Holders that are U.S. citizens or individual residents should generally be qualified dividend income subject to the long-term capital gains tax rate. However, if the NYSE were to delist our shares from trading on its exchange, future dividends may not constitute qualified dividend income. See Risk Factors above.
Special rules may apply to any amounts received in respect of Atlas shares that are treated as extraordinary dividends. In general, an extraordinary dividend is a dividend with respect to a share of common shares that is equal to or in excess of 10%, or with respect to a share of stock which is preferred as to dividends that is equal to or in excess of 5%, of a U.S. Holders adjusted tax basis (or fair market value upon the U.S. Holders election) in such share. In addition, extraordinary dividends include dividends received within a one year period that, in the aggregate, equal or exceed 20% of a U.S. Holders adjusted tax basis (or fair market value). If we pay an extraordinary dividend on Atlas shares that is treated as qualified dividend income, then any loss recognized by an individual U.S. Holder from the sale or exchange of such shares will be treated as long-term capital loss to the extent of the amount of such dividend.
Sale, Exchange or Other Disposition of Atlas Shares
Subject to the discussion of PFICs below, a U.S. Holder generally will recognize capital gain or loss upon a sale, exchange or other disposition of a share of Atlas shares in an amount equal to the difference between the amount realized by the U.S. Holder from such sale, exchange or other disposition and the U.S. Holders adjusted tax basis in such shares (as reduced (but not below zero) by the amount of any distributions on Atlas shares that are treated as non-taxable returns of capital (as discussed under Distributions above)). Such gain or loss will be treated as long-term capital gain or loss if the U.S. Holders holding period is greater than one year at the time of the sale, exchange or other disposition.
A corporate U.S. Holders capital gains, long-term and short-term, are taxed at ordinary income tax rates (currently, a maximum rate of 21%). If a corporate U.S. Holder recognizes a loss upon the disposition of Atlas shares, the corporate U.S. Holder is limited to using the loss to offset other capital gain. If a corporate U.S. Holder has no other capital gain in the tax year of the loss, it may carry the capital loss back three years and forward five years.
As described above, long-term capital gains of non-corporate U.S. Holders are subject to the current favorable maximum tax rate of 20%. In addition, a 3.8% tax may apply to certain investment income. See Medicare Tax below. A non-corporate U.S. Holder may deduct a capital loss resulting from a disposition of Atlas shares to the extent of capital gains plus up to US$3,000 (US$1,500 for married individuals filing separate tax returns) and may carry forward capital losses indefinitely.
Passive Foreign Investment Company Status and Significant Tax Consequences
In general, we will be treated as a PFIC with respect to a U.S. Holder if, for any taxable year in which such holder held Atlas shares, either:
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at least 75% of our gross income for such taxable year consists of passive income (e.g., dividends, interest, capital gains and rents derived other than in the active conduct of a rental business); or |
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at least 50% of the average value of the assets held by us during such taxable year produce, or are held for the production of, passive income. |
For purposes of determining whether we are a PFIC, we will be treated as earning and owning our proportionate share of the income and assets, respectively, of any subsidiary corporation in which we own at least 25% of the value of the subsidiarys stock. Income earned, or deemed earned, by us in connection with the performance of services will not constitute passive income. By contrast, rental income will constitute passive income unless we are treated as deriving our rental income in the active conduct of a trade or business under applicable rules.
There are legal uncertainties involved in determining whether the income derived from our time chartering activities constitutes rental income or income derived from the performance of services. There is no direct legal authority under the PFIC rules addressing whether income from time chartering activities is services income or rental income. Moreover, in a case not interpreting the PFIC rules, Tidewater Inc. v. United States, 565 F.3d 299 (5th Cir. 2009), the Fifth Circuit held that the vessel time charters at issue generated predominantly rental income rather than services income. However, the IRS stated in an Action on Decision (AOD 2010-001) that it disagrees with, and will not acquiesce to, the way that the rental versus services framework was applied to the facts in the Tidewater decision, and in its discussion stated that the time charters at issue in Tidewater would be treated as producing services income for PFIC purposes. The IRSs AOD, however, is an administrative action that cannot be relied upon or otherwise cited as precedent by taxpayers.
Consequently, in the absence of any binding legal authority specifically relating to the statutory provisions governing PFICs, there can be no assurance that the IRS or a court would not follow the Tidewater decision in interpreting the PFIC provisions of the Code. Nevertheless, based on the current composition of our assets and operations (and those of our subsidiaries), we intend to take the position that we are not now and have never been a PFIC. No assurance can be given, however, that this position would be sustained by a court if contested by the IRS, or that we would not constitute a PFIC for any future taxable year if there were to be changes in our assets, income or operations.
As discussed more fully below, if we were to be treated as a PFIC for any taxable year in which a U.S. Holder owned Atlas shares, the U.S. Holder would be subject to different taxation rules depending on whether the U.S. Holder makes an election to treat us as a Qualified Electing Fund, which we refer to as a QEF election. As an alternative to making a QEF election, the U.S. Holder may be able to make a mark-to-market election with respect to Atlas shares, as discussed below. In addition, if we were treated as a PFIC for any taxable year in which a U.S. Holder owned Atlas shares, the U.S. Holder generally would be required to file IRS Form 8621 with the U.S. Holders U.S. federal income tax return for each year to report the U.S. Holders ownership of such Atlas shares. It should also be noted that, if we were treated as a PFIC for any taxable year in which a U.S. Holder owned Atlas shares and any of our non-U.S. subsidiaries were also a PFIC, the U.S. Holder would be treated as owning a proportionate amount (by value) of the shares of the lower-tier PFIC for purposes of the application of these rules.
Taxation of U.S. Holders Making a Timely QEF Election
If we were to be treated as a PFIC for any taxable year and a U.S. Holder makes a timely QEF election (any such U.S. Holder, an Electing Holder), the Electing Holder must report for U.S. federal income tax purposes its pro rata share of our ordinary earnings and net capital gain, if any, for our taxable year that ends with or within the Electing Holders taxable year, regardless of whether or not the Electing Holder received any distributions from us in that year. Such income inclusions would not be eligible for the preferential tax rates applicable to qualified dividend income. The Electing Holders adjusted tax basis in Atlas shares will be increased to reflect taxed but undistributed earnings and profits. Distributions to the Electing Holder of our earnings and profits that were previously taxed will result in a corresponding reduction in the Electing Holders adjusted tax basis in Atlas shares and will not be taxed again once distributed. The Electing Holder would not, however, be entitled to a deduction for its pro rata share of any losses that we incur with respect to any year. An Electing Holder generally will recognize capital gain or loss on the sale, exchange or other disposition of Atlas shares.
Even if a U.S. Holder makes a QEF election for one of our taxable years, if we were a PFIC for a prior taxable year during which the U.S. Holder owned Atlas shares and for which the U.S. Holder did not make a timely QEF election, the U.S. Holder would also be subject to the more adverse rules described below under Taxation of U.S. Holders Not Making a Timely QEF or Mark-to-Market Election. However, under certain circumstances, a U.S. Holder may be permitted to make a retroactive QEF election with respect to us for any open taxable years in the U.S. Holders holding period for Atlas shares in which we are treated as a PFIC. Additionally, to the extent that any of our subsidiaries is a PFIC, a U.S. Holders QEF election with respect to us would not be effective with respect to the U.S. Holders deemed ownership of the stock of such subsidiary and a separate QEF election with respect to such subsidiary would be required.
A U.S. Holder makes a QEF election with respect to any year that we are a PFIC by filing IRS Form 8621 with the U.S. Holders U.S. federal income tax return. If, contrary to our expectations, we were to determine that we are treated as a PFIC for any taxable year, we would notify all U.S. Holders and would provide all necessary information to any U.S. Holder that requests such information in order to make the QEF election described above with respect to us and the relevant subsidiaries. A QEF election would not apply to any taxable year for which we are not a PFIC, but would remain in effect with respect to any subsequent taxable year for which we are a PFIC, unless the IRS consents to the revocation of the election.
Taxation of U.S. Holders Making a Mark-to-Market Election
If we were to be treated as a PFIC for any taxable year and, subject to the possibility that publicly-traded stock may be delisted by a qualifying exchange, our publicly-traded stock were treated as marketable stock, then, as an alternative to making a QEF election, a U.S. Holder would be allowed to make a mark-to-market election with respect to such stock, provided the U.S. Holder completes and files IRS Form 8621 in accordance with the relevant instructions and related Treasury Regulations. If that election is made, the U.S. Holder generally would include as ordinary income in each taxable year the excess, if any, of the fair market value of the U.S. Holders marketable stock at the end of the taxable year over the holders adjusted tax basis in such stock. The U.S. Holder also would be permitted an ordinary loss in respect of the excess, if any, of the U.S. Holders adjusted tax basis in the marketable stock over the fair market value thereof at the end of the taxable year, but only to the extent of the net amount previously included in income as a result of the mark-to-market election. A U.S. Holders tax basis in the U.S. Holders marketable stock would be adjusted to reflect any such income or loss recognized. Gain recognized on the sale, exchange or other disposition of marketable stock would be treated as ordinary income, and any loss recognized on the sale, exchange or other disposition of the marketable stock would be treated as ordinary loss to the extent that such loss does not exceed the net mark-to-market gains previously included in income by the U.S. Holder. A mark-to-market election would not apply to marketable stock owned by a U.S. Holder in any taxable year during which we are not a PFIC, but would remain in effect with respect to any subsequent taxable year for which we are a PFIC, unless our stock is no longer treated as marketable stock or the IRS consents to the revocation of the election.
Even if a U.S. Holder makes a mark-to-market election for one of our taxable years, if we were a PFIC for a prior taxable year during which the U.S. Holder owned our marketable stock and for which the U.S. Holder did not make a timely mark-to-market election or a timely QEF election, the U.S. Holder would also be subject to the more adverse rules described below under Taxation of U.S. Holders Not Making a Timely QEF or Mark-to-Market Election.
Additionally, to the extent that any of our subsidiaries is a PFIC, a mark-to-market election with respect to our marketable stock would not apply to the U.S. Holders deemed ownership of the stock of such subsidiary.
Taxation of U.S. Holders Not Making a Timely QEF or Mark-to-Market Election
If we were to be treated as a PFIC for any taxable year, a U.S. Holder who does not make either a timely QEF election or a timely mark-to-market election for that year (i.e., the taxable year in which the U.S. Holders holding period commences), whom we refer to as a Non-Electing Holder, would be subject to special rules resulting in increased tax liability with respect to (1) any excess distribution (i.e., the portion of any distributions received by the Non-Electing Holder on Atlas shares in a taxable year in excess of 125% of the average annual distributions received by the Non-Electing Holder in the three preceding taxable years, or, if shorter, the Non-Electing Holders holding period for the Atlas shares), and (2) any gain realized on the sale, exchange or other disposition of Atlas shares. Under these special rules:
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the excess distribution and any gain would be allocated ratably over the Non-Electing Holders aggregate holding period for the Atlas shares; |
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the amount allocated to the current taxable year and any year prior to the year we were first treated as a PFIC with respect to the Non-Electing Holder would be taxed as ordinary income; and |
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the amount allocated to each of the other taxable years would be subject to tax at the highest rate of tax in effect for the applicable class of taxpayer for that year, and an interest charge for the deemed deferral benefit would be imposed with respect to the resulting tax attributable to each such other taxable year. |
Moreover, (i) any dividends received by a non-corporate U.S. Holder in a year in which we are a PFIC (or in which we were a PFIC in the preceding year) will not be treated as qualified dividend income and will be subject to tax at rates applicable to ordinary income and (ii) if a Non-Electing Holder who is an individual dies while owning Atlas shares, such holders successor generally would not receive a step-up in tax basis with respect to such shares. Additionally, to the extent that any of our subsidiaries is a PFIC, the foregoing consequences would apply to the U.S. Holders deemed receipt of any excess distribution on, or gain deemed realized on the disposition of, the stock of such subsidiary deemed owned by the U.S. Holder.
If we are treated as a PFIC for any taxable year during the holding period of a U.S. Holder, unless the U.S. Holder makes a timely QEF election, or a timely mark-to-market election, for the first taxable year in which the U.S. Holder holds Atlas shares and in which we are a PFIC, we will continue to be treated as a PFIC for all succeeding years during which the U.S. Holder owns Atlas shares even if we are not a PFIC for such years. U.S. Holders are encouraged to consult their tax advisors with respect to any available elections that may be applicable in such a situation. In addition, U.S. Holders should consult their tax advisors regarding the IRS information reporting and filing obligations that may arise as a result of the ownership of shares in a PFIC.
Controlled Foreign Corporation
Special rules would apply if Atlas is classified as a controlled foreign corporation, or CFC, for U.S. federal income tax purposes. Atlas will generally be classified as a CFC if more than 50% of its outstanding shares, measured by reference to voting power or value, are owned (directly, indirectly or constructively) by any U.S. person that owns directly, indirectly or constructively, 10% or more of the voting power of the issued and outstanding shares of Atlas or 10% or more of the total value of shares of all classes of stock of Atlas. A non-U.S. corporate subsidiary of Atlas would also be treated as a CFC. If Atlas and any of its non-U.S. corporate subsidiaries were to be classified as CFCs, a 10% U.S. Shareholder may be subject to U.S. federal income taxation at ordinary income tax rates on all or a portion of its pro rata share of the CFCs undistributed earnings and profits attributable to certain categories of passive income and certain other income described in Subpart F of the Code, and may also be subject to U.S. federal income taxation at ordinary income tax rates on any gain realized on a sale of our shares, to the extent of the current and accumulated earnings and profits of the CFCs attributable to such shares. For this purpose, a 10% U.S. Shareholder is any U.S. person that owns directly or indirectly, 10% or more of the voting power of the issued and outstanding shares of Atlas or 10% or more of the total value of shares of all classes of stock of Atlas.
In addition, each person who is a 10% U.S. Shareholder of a CFC for a taxable year must include in gross income for U.S. federal income tax purposes such 10% U.S. Shareholders pro rata share of global intangible low-taxed income, or GILTI, for the taxable year. In general, GILTI with respect to a 10% U.S. Shareholder is the excess (if any) of its net CFC tested income (see below) over its net deemed tangible income (generally, representing a 10% deemed return on tangible business assets). A 10% U.S. Shareholders net CFC tested income is generally equal to the excess of its aggregate pro rata share of the tested income of each CFC with respect to which it is a 10% U.S. Shareholder over its aggregate pro rata share of the tested loss of each such CFC. The tested income or tested loss of a CFC is generally determined by subtracting from the CFCs gross income (excluding any Subpart F income and certain other amounts) the amount of any deductions properly allocable to such gross income. If Atlas or one of its non-U.S. corporate subsidiaries is a CFC, any 10% U.S. Shareholder of Atlas who owns Atlas shares directly, or indirectly through non-U.S. entities, on the last day in such companys taxable year on which it is a CFC must take into account its pro rata share (based on direct or indirect ownership of value) of such companys tested income or tested loss for purposes of determining the amount of GILTI that such 10% U.S. Shareholder must include in gross income.
Based on information available as of the date hereof, we believe that Atlas and its non-U.S. corporate subsidiaries will be treated as CFCs in 2019 as a result of the total direct, indirect, and constructive ownership of Atlas by 10% U.S. Shareholders. It is unclear whether we would be treated as a CFC in future years. If Atlas or one of its non-U.S. corporate subsidiaries is a CFC, the rules relating to PFICs generally would not apply to a 10% U.S. Shareholder of such company.
The CFC rules are complex and U.S. Holders that are, or may be, 10% U.S. Shareholders are urged to consult their own tax advisors regarding the possible application of the CFC rules to them in their particular circumstances.
Medicare Tax
A U.S. Holder that is an individual or estate, or a trust that does not fall into a special class of trusts that is exempt from such tax, will generally be subject to a 3.8% tax on the lesser of (i) the U.S. Holders net investment income for a taxable year and (ii) the excess of the U.S. Holders modified adjusted gross income for such taxable year over US$200,000 (US$250,000 in the case of joint filers). For these purposes, net investment income will generally include, among other things, dividends paid with respect to Atlas shares and net gain attributable to the disposition of Atlas shares (in each case, unless such shares are held in connection with certain trades or businesses), but will be reduced by any deductions properly allocable to such income or net gain.
United States Federal Income Taxation of Non-U.S. Holders
Distributions
A Non-U.S. Holder generally will not be subject to U.S. federal income tax or withholding tax on distributions received with respect to Atlas shares if the Non-U.S. Holder is not engaged in a U.S. trade or business. If the Non-U.S. Holder is engaged in a U.S. trade or business, our distributions will be subject to U.S. federal income tax to the extent they constitute income effectively connected with the Non-U.S. Holders U.S. trade or business (and a corporate Non-U.S. Holder may also be subject to U.S. federal branch profits tax). However, distributions paid to a Non-U.S. Holder who is engaged in a trade or business may be exempt from taxation under an income tax treaty if the income arising from the distribution is not attributable to a U.S. permanent establishment maintained by the Non-U.S. Holder.
Sale, Exchange or other Disposition of Atlas Shares
In general, a Non-U.S. Holder will not be subject to U.S. federal income tax or withholding tax on any gain resulting from the disposition of Atlas shares provided the Non-U.S. Holder is not engaged in a U.S. trade or business. A Non-U.S. Holder that is engaged in a U.S. trade or business will be subject to U.S. federal income tax in the event the gain from the disposition of Atlas shares is effectively connected with the conduct of such U.S. trade or business (provided, in the case of a Non-U.S. Holder entitled to the benefits of an income tax treaty with the United States, such gain also is attributable to a U.S. permanent establishment). However, even if not engaged in a U.S. trade or business, individual Non-U.S. Holders may be subject to tax on gain resulting from the disposition of Atlas shares if they are present in the United States for 183 days or more during the taxable year of the disposition and meet certain other requirements.
Certain Information Reporting Requirements
Individual U.S. Holders (and to the extent specified in applicable Treasury Regulations, certain individual Non-U.S. Holders and certain U.S. Holders that are entities) that hold specified foreign financial assets, including Atlas shares, whose aggregate value exceeds US$75,000 at any time during the taxable year or US$50,000 on the last day of the taxable year (or such higher amounts as prescribed by applicable Treasury Regulations) are required to file a report on IRS Form 8938 with information relating to the assets for each such taxable year. Specified foreign financial assets would include, among other things, Atlas shares, unless such shares are held in an account maintained by a U.S. financial institution (as defined). Substantial penalties apply to any failure to timely file IRS Form 8938, unless the failure is shown to be due to reasonable cause and not due to willful neglect. Additionally, in the event an individual U.S. Holder (and to the extent specified in applicable Treasury Regulations, an individual Non-U.S. Holder or a U.S. entity) that is required to file IRS Form 8938 does not file such form, the statute of limitations on the assessment of U.S. federal income taxes of such holder for the related tax year may not close until three years after the date that the required information is filed. U.S. Holders (including U.S. entities) and Non-U.S. Holders should consult their own tax advisors regarding their reporting obligations.
U.S. Backup Withholding Tax and Related Information Reporting Requirements
In general, dividend payments and payments of proceeds from the disposition of Atlas shares made to a non-corporate U.S. Holder may be subject to information reporting requirements. Such payments may also be subject to backup withholding tax (currently at a rate of 24%) if you are a non-corporate U.S. Holder and you:
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fail to provide an accurate taxpayer identification number; |
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are notified by the IRS that you are subject to backup withholding because you have previously failed to report all interest or dividends required to be shown on your federal income tax returns; or |
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fail to comply with applicable certification requirements. |
A U.S. Holder generally is required to certify its compliance with the backup withholding rules on IRS Form W-9.
Non-U.S. Holders may be required to establish their exemption from information reporting and backup withholding by certifying their status on an applicable IRS Form W-8.
Backup withholding tax is not an additional tax. Rather, you generally may obtain a credit of any amounts withheld against your liability for U.S. federal income tax (and obtain a refund of any amounts withheld in excess of such liability) by timely filing a U.S. federal income tax return with the IRS.
Taxation of Operating Income: In General
Under the Code, income derived from, or in connection with, the use (or hiring or leasing for use) of a vessel, or the performance of services directly related to the use of a vessel, is treated as Transportation Income. Such Transportation Income can arise, for example, from the use (or hiring or leasing for use) of vessels for use on a time, voyage or bareboat charter basis, from the participation in a pool, partnership, strategic alliance, joint operating agreement, code sharing arrangement or other joint venture it directly or indirectly owns or participates in that generates such income, or from the performance of services directly related to those uses.
Transportation Income that is attributable to transportation that either begins or ends, but that does not both begin and end, in the United States is considered to be 50% derived from sources within the United States (U.S. Source International Transportation Income). Transportation Income attributable to transportation that both begins and ends in the United States is considered to be 100% derived from sources within the United States (U.S. Source Domestic Transportation Income). Transportation Income that is attributable to transportation exclusively between non-U.S. destinations is considered to be 100% derived from sources outside the United States. Transportation Income derived from sources outside the United States generally is not subject to U.S. federal income tax.
U.S. Source International Transportation Income generally is subject to a 4% U.S. federal income tax without allowance for deduction or, if such U.S. Source International Transportation Income is effectively connected with the conduct of a trade or business in the United States, U.S. federal corporate income tax (presently imposed at a 21% rate) as well as a branch profits tax (presently imposed at a 30% rate on effectively connected earnings), unless the non-U.S. corporation qualifies for exemption from tax under Section 883 of the Code.
We anticipate that an election will be made to treat Seaspan as a disregarded entity for U.S. federal income tax purposes following the date of the holding company reorganization effective as part of the same plan as the holding company reorganization. Accordingly, the activities of Seaspan will be attributed to Atlas, and the income, including Transportation Income, derived by Seaspan will be treated as derived by Atlas.
Exemption of Operating Income From U.S. Federal Income Taxation
In general, the exemption from U.S. federal income taxation under Section 883 of the Code provides that if a non-U.S. corporation satisfies the requirements of Section 883 of the Code and the Treasury Regulations thereunder, it will not be subject to the net basis and branch profits taxes or the 4% gross basis tax (each as described below) on its U.S. Source International Transportation Income (the Section 883 Exemption). Under Section 883 of the Code, a foreign corporation will be exempt from U.S. federal income taxation on its U.S. Source International Transportation Income if:
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it is organized in a qualified foreign country, which is one that grants an equivalent exemption from tax to corporations organized in the United States in respect of each category of shipping income for which exemption is being claimed under Section 883; and |
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one of the following tests is met: |
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more than 50% of the value of its shares is beneficially owned, directly or indirectly, by qualified shareholders, which as defined includes individuals who are residents of a qualified foreign country, which we refer to as the 50% Ownership Test; |
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its shares are primarily and regularly traded on an established securities market in a qualified foreign country or in the United States, to which we refer to as the Publicly-Traded Test; or |
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it is a controlled foreign corporation and one or more qualified U.S. persons own more than 50 percent of the total value of all the outstanding stock, to which we refer to as the CFC Test. |
The CFC Test requires that the non-U.S. corporation be treated as a CFC for U.S. federal income tax purposes for more than half of the days in the taxable year. In addition, more than 50% of the value of the shares of the CFC must be owned by qualified U.S. persons for more than half of the days during the taxable year concurrent with the period of time that such non-U.S. corporation qualifies as a CFC. For this purpose, a qualified U.S. person is defined as a U.S. citizen, a resident alien, a domestic corporation or domestic trust, in each case, if such U.S. person, and each intermediary in the chain of ownership between such non-U.S. corporation and the qualified U.S. person, provides such non-U.S. corporation with an ownership statement signed under penalty of perjury. Stock owned by or for a domestic partnership, taxable domestic trust, estate, mutual insurance company or similar entity is treated for these purposes as owned proportionately by its partners, beneficiaries, grantors or other interest holders.
For purposes of the Publicly-Traded Test, the Treasury Regulations provide, in pertinent part, that stock of a foreign corporation will be considered to be primarily traded on an established securities market if, with respect to each class of stock relied upon to satisfy the regularly traded test (discussed below), the number of shares of each class of stock that are traded during any taxable year on all established securities markets in that country exceeds the number of shares in each such class that are traded during that year on established securities markets in any other single country.
Under the Treasury Regulations, stock is considered to be regularly traded on an established securities market if one or more classes of stock representing more than 50% of outstanding shares, by total combined voting power of all classes of stock entitled to vote and total value, is listed on the market during the taxable year, which we refer to as the listing threshold.
It is further required that with respect to each class of stock relied upon to meet the listing threshold (i) such class of stock is traded on the market, other than de minimis quantities, on at least 60 days during the taxable
year or 1/6 of the days in a short taxable year; and (ii) the aggregate number of shares of such class of stock traded on such market during the taxable year is at least 10% of the average number of shares of such class of stock outstanding during such year or as appropriately adjusted in the case of a short taxable year. The regulations provide that the trading frequency and trading volume tests will be deemed satisfied by a class of stock if such class of stock is traded during the taxable year on an established market in the United States and such class of stock is regularly quoted by dealers making a market in such stock.
Notwithstanding the foregoing, the Treasury Regulations provide, in pertinent part, that stock will not be considered to be regularly traded on an established securities market for any taxable year in which 50% or more of the vote and value of the outstanding shares of stock are owned, actually or constructively under specified stock attribution rules, on more than half the days during the taxable year by persons who each own 5% or more of the vote and value of stock, which we refer to as the 5% Override Rule.
If our 5% shareholders did own more than 50% of Atlas shares, then we would be subject to the 5% Override Rule unless we were able to establish that among the closely-held group of 5% shareholders, there are sufficient 5% shareholders that are qualified shareholders for purposes of Section 883 to preclude non-qualified 5% Shareholders in the closely-held group from owning 50% or more of the total value of each class of Atlas shares for more than half the number of days during the taxable year. In order to establish this, sufficient 5% shareholders that are qualified shareholders would have to comply with certain documentation and certification requirements designed to substantiate their identity as qualified shareholders. These requirements are onerous and there is no guarantee that we would be able to satisfy them in all cases.
We believe that we have not earned any U.S. Source Domestic Transportation Income, and we expect that we will not earn any such income in future years. However, certain of our activities give rise to U.S. Source International Transportation Income, and future expansion of our operations could result in an increase in the amount of our U.S. Source International Transportation Income. Unless the exemption from tax under Section 883 of the Code, or the Section 883 Exemption, applies, our U.S. Source International Transportation Income generally will be subject to U.S. federal income taxation under either the net basis and branch profits tax or the 4% gross basis tax, each of which is discussed below.
We are organized under the laws of the Republic of the Marshall Islands. The U.S. Treasury Department has recognized the Republic of the Marshall Islands as a jurisdiction that grants an equivalent exemption. We also believe that we will be able to satisfy all substantiation, reporting and other requirements necessary to qualify for the Section 883 Exemption. Consequently, our U.S. Source International Transportation Income will be exempt from U.S. federal income taxation provided we satisfy the Publicly-Traded Test or the CFC Test and provided we file a U.S. federal income tax return to claim the Section 883 Exemption. We believe that we should satisfy the Publicly-Traded Test because our common shares (which represent more than 50 percent of the total combined voting power and value of all classes of our shares) will be primarily and regularly traded on an established securities market in the United States (and will not be treated as closely held, meaning that the 5% Override Rule is not expected to apply) within the meaning of the Section 883 Regulations. We can give no assurance, however, that changes in the trading, ownership or value of our common shares will permit us to continue to qualify for the Section 883 Exemption.
Taxation in Absence of Exemption
To the extent the benefits of Section 883 are unavailable, our gross U.S. Source International Transportation Income, to the extent not considered to be effectively connected with the conduct of a U.S. trade or business, as described below, would be subject to a 4% tax imposed by Section 887 of the Code on a gross basis, without the benefit of deductions.
Since under the sourcing rules described above, no more than 50% of our U.S. Source International Transportation Income would be treated as being derived from U.S. sources, the maximum effective rate of U.S. federal income tax on our U.S. Source International Transportation Income would never exceed 2% of our gross income under the 4% gross basis tax regime.
To the extent the benefits of the Section 883 Exemption are unavailable and our U.S. Source International Transportation Income is considered to be effectively connected with the conduct of a U.S. trade or business, as described below, any such effectively connected U.S. Source International Transportation Income, net of applicable deductions, would be subject to the U.S. federal corporate income tax currently imposed at a 21% rate. In addition, we may be subject to the 30% branch profits tax on any earnings and profits effectively connected with the conduct of such trade or business, as determined after allowance for certain adjustments, and on certain interest paid or deemed paid attributable to the conduct of our U.S. trade or business.
Our U.S. Source International Transportation Income would be considered effectively connected with the conduct of a U.S. trade or business only if:
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we have, or are considered to have, a fixed place of business in the United States involved in the earning of shipping income; and |
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substantially all of our U.S. Source International Transportation Income is attributable to regularly scheduled transportation, such as the operation of a vessel that follows a published schedule with repeated sailings at regular intervals between the same points for voyages that begin or end in the United States. |
We do not intend to have circumstances that would result in having any vessel operating to the United States on a regularly scheduled basis. In addition, Seaspan does not currently have a fixed place of business in the United States involved in earning shipping income. Based on the foregoing and on the expected mode of our shipping operations and other activities, we believe that none of our U.S. Source International Transportation Income will be effectively connected with the conduct of a U.S. trade or business.
United States Taxation of Gain on Sale of Vessels
If we qualify for the Section 883 Exemption, then gain realized from the sale of a vessel should likewise be exempt from U.S. federal income tax under Section 883 of the Code. Regardless of whether we will qualify for the Section 883 Exemption, we should not be subject to U.S. federal income taxation with respect to gain realized on a sale of a vessel, provided that such gain is not treated as effectively connected with the conduct of a U.S. trade or business. However, if we do not qualify for the Section 883 Exemption and gain realized on a sale of a vessel is treated as effectively connected with the conduct of a U.S. trade or business, then such gain may be subject to the net income and branch profits tax regime described above. To the extent possible, Atlas intends to structure the sales of our vessels so that the gain realized therefrom is not subject to U.S. federal income taxation. However, there is no assurance that we will be able to do so.
Exhibit 99.4
MATERIAL NON-UNITED STATES TAX CONSIDERATIONS
Material Canadian Federal Income Tax Considerations
The following discussion is the opinion of Blake, Cassels & Graydon LLP, our Canadian tax counsel, as to the material Canadian federal income tax consequences under the Income Tax Act (Canada) (the Canada Tax Act) and the regulations thereunder (the Regulations), that we believe are generally relevant to a beneficial holder of Atlas shares (in this section a Non-Canadian Holder), where such Non-Canadian Holders are, at all relevant times, for the purposes of the Canada Tax Act and the Canada-United States Tax Convention (as amended) (the Treaty), resident only in the United States, who are qualifying persons for purposes of the Treaty and who, alone or together with any other holders, deal at arms length with Atlas. This discussion may not apply to United States limited liability companies or insurers; accordingly, such holders should consult their own tax advisors to determine the tax consequences to them of the acquisition, holding and disposition of an Atlas share. The opinion of our counsel is dependent on the accuracy of representations made by us to them, including descriptions of our operations contained herein.
This summary is based on the current provisions of the Canada Tax Act and the Regulations, all specific proposals to amend the Canada Tax Act and the Regulations publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date hereof (the Tax Proposals), the current provisions of the Treaty, and our understanding of the published administrative policies and assessing practices of the Canada Revenue Agency (CRA) prior to the date hereof. This summary assumes that the Tax Proposals will be enacted as proposed, but there is no assurance that this will be the case. This discussion is not binding on the CRA, and it is not intended to be relied upon, and cannot be relied upon, by a Non-Canadian Holder for the purpose of avoiding penalties that may be imposed under the Canada Tax Act. No ruling has been or will be sought or obtained from the CRA with respect to any of the Canadian federal income tax consequences herein.
This summary is of a general nature and is not intended to be, nor should it be construed to be, legal or tax advice to any particular Non-Canadian Holder. This summary is not exhaustive of all possible Canadian federal income tax considerations and, except for the Tax Proposals, does not take into account or anticipate any changes in law, whether by legislative, regulatory, administrative or judicial decision or action, nor does it take into account provincial, territorial or foreign income tax legislation or considerations, which may differ significantly from the Canadian federal income tax considerations discussed herein. Non-Canadian Holders should consult their own tax advisors in respect of the provincial, territorial or foreign income tax considerations with respect to their particular circumstances.
Dividends on Atlas Shares
Canadian withholding tax will not apply to any dividends on the Atlas shares paid or credited, or deemed to be paid or credited, to a Non-Canadian Holder.
Dispositions of Atlas Shares
A Non-Canadian Holder will generally not be subject to tax under the Canada Tax Act in respect of any capital gain realized by such Non-Canadian Holder on a disposition (or deemed disposition) of the Atlas shares unless such shares constitute taxable Canadian property (as defined in the Canada Tax Act) of the Non-Canadian Holder at the time of the disposition and the Non-Canadian Holder is not entitled to an exemption under the Treaty. As long as the Atlas shares are then listed on a designated stock exchange (which currently includes the NYSE), the Atlas shares generally will not constitute taxable Canadian property of a Non-Canadian Holder, unless (a) at any time during the 60 month period immediately preceding the disposition (or deemed disposition) of the Atlas shares: (i) one or any combination of (A) the Non-Canadian Holder, (B) persons not dealing at arms length with such Non-Canadian Holder, and (C) partnerships in which the Non-Canadian Holder or a person described in (B) holds a membership interest directly or indirectly through one or more partnerships, owned 25% or more of the issued shares of any class or series of the capital stock of Atlas; and (ii) more than 50% of the fair market value of the Atlas shares was derived, directly or indirectly, from one or any combination of real or immoveable property situated in Canada, Canadian resource properties (within the meaning of the Canada Tax Act), timber resource properties (within the meaning of the Canada Tax Act) or options in respect of interests in, or for civil law rights in, any such properties whether or not the property exists, or (b) the Atlas shares are otherwise deemed to be taxable Canadian
property of the Non-Canadian Holder. If the Atlas shares are considered taxable Canadian property to a Non-Canadian Holder, the Treaty may in certain circumstances provide relief to such Non-Canadian Holder from income tax arising under the Canada Tax Act in respect of the disposition (or deemed disposition) of the Atlas shares. Non-Canadian Holders whose Atlas shares are, or may be, taxable Canadian property should consult their own tax advisors having regard to their particular circumstances.
Taxation of Atlas and Seaspan
This opinion is based upon the assumption that Atlas and Seaspan are not, and are not deemed for any purpose of the Canada Tax Act to be, resident in Canada. This opinion also assumes that Atlas shares, are treaty-exempt property for purposes of the Canada Tax Act.
Under the Canada Tax Act, a corporation that is resident in Canada is subject to tax in Canada on its worldwide income. The place of residence of a corporation that is not incorporated in Canada is generally determined on the basis of where central management and control are in fact exercised.
At this time, it is not intended that the central management and control of Atlas would be in Canada. Nor is it expected that Atlas would be carrying on any business in Canada and thus it is not expected that Atlas would be subject to income tax in Canada under the Canada Tax Act, but, even if it were, there is a specific statutory exemption under the Canada Tax Act that provides that a corporation incorporated, or otherwise formed, under the laws of a country other than Canada will not be resident in Canada in a taxation year if: (i) it holds eligible interests in one or more eligible entities (as defined in the Canada Tax Act), comprising of at least 50% of the cost amounts of all of Atlass property throughout the year, (ii) all or substantially all of its gross revenue for the year is from international shipping (as defined below), gross revenue from an eligible interest in an eligible entity, or interest on a debt owing by such an eligible entity, and (iii) it was not granted articles of continuance in Canada before the end of that year.
Seaspans place of residence, under Canadian law, would similarly and generally be determined on the basis of where Seaspans central management and control are, in fact, exercised. It is not currently intended that Seaspans central management and control be exercised in Canada but, even if it were, there is a specific statutory exemption under the Canada Tax Act that provides that a corporation incorporated, or otherwise formed, under the laws of a country other than Canada will not be resident in Canada in a taxation year if: (i) its principal business in that year is international shipping (as defined below), (ii) all or substantially all of its gross revenue for that year consists of gross revenue from international shipping, and (iii) it was not granted articles of continuance in Canada before the end of that year.
International shipping is defined generally as the operation of ships that are owned or leased by an operator and that are used primarily in transporting passengers or goods in international traffic, including the chartering of ships, provided that, one or more persons related to the operator (if the operator and each such person is a corporation), or persons or partnerships affiliated with the operator (in any other case), has complete possession, control and command of the ship. The leasing of a ship by a lessor to a lessee that has complete possession, control and command of the ship is excluded from the international shipping definition, unless the lessor or a corporation, trust or partnership affiliated with the lessor has an eligible interest in the lessee.
The definition of international shipping was introduced following industry consultation, with the intent of providing shipping companies with flexibility in the manner in which they structure their intra-group chartering contracts. Based on the operations of Seaspan and our understanding of the foregoing intention of the definition of international shipping, we do not believe that Seaspan is, nor do we expect Seaspan to be, resident in Canada for purposes of the Canada Tax Act, and we intend that the affairs of Seaspan will be conducted and operated in a manner such that Seaspan does not become a resident of Canada for any purpose under the Canada Tax Act. However, if Seaspan were to become resident in Canada, Seaspan would be or become subject under the Canada Tax Act to Canadian income tax on its worldwide income and, as a non-Canadian resident shareholder, Atlas would be or become subject to Canadian withholding tax on dividends paid in respect of Seaspan shares.
Generally, a corporation that is not resident in Canada will be taxable in Canada on income it earns from carrying on a business in Canada and on gains from the disposition of property used in a business carried on in Canada. However, there are specific statutory exemptions under the Canada Tax Act that provide that income earned
in Canada by a non-resident corporation from international shipping, and gains realized from the disposition of ships used principally in international traffic, are not included in the non-resident corporations income for Canadian tax purposes where the corporations country of residence grants substantially similar relief to a Canadian resident. A Canadian resident corporation that carries on an international shipping business, as described in the previous sentence, in a Relevant Jurisdiction is exempt from income tax under the current laws of that Relevant Jurisdiction; and for these purposes, a Relevant Jurisdiction is defined as each jurisdiction in which Seaspan is, or is deemed for purposes of the Canada Tax Act, to be resident.
Subject to the below assumption, it is expected that Seaspan will qualify for these statutory exemptions under the Canada Tax Act. Based on the operations of Seaspan, it is not believed that Seaspan is, nor is expected to be, carrying on a business in Canada for purposes of the Canada Tax Act other than a business that would provide Seaspan with these statutory exemptions from Canadian income tax. These statutory exemptions are contingent upon reciprocal treatment being provided under the laws of each Relevant Jurisdiction. If in the future as a non-resident of Canada, Seaspan is carrying on a business in Canada that is not exempt from Canadian income tax, or these statutory exemptions are not accessible due to changes in laws or otherwise, Seaspan may become subject to Canadian income tax on its non-exempt income earned in Canada which could reduce earnings available for distribution to Atlas, and ultimately to Non-Canadian Holders.
This discussion is general in nature only and is not intended to be, nor should it be considered to be, legal or tax advice to any particular Non-Canadian Holder and no representation with respect to the consequences to any particular Non-Canadian Holder is made.
Material Republic of the Marshall Islands Tax Considerations
The following discussion is the opinion of Reeder & Simpson, P.C., Atlas counsel as to matters of the laws of the Republic of the Marshall Islands, and is based on the current laws of the Republic of the Marshall Islands applicable to persons who do not reside in, maintain offices in or engage in business in the Republic of the Marshall Islands.
Atlas is incorporated in the Republic of the Marshall Islands. Under current Republic of the Marshall Islands law, Atlas is not subject to tax on income or capital gains, and no Republic of the Marshall Islands withholding tax will be imposed upon payments of dividends by Atlas to its shareholders. Under the laws of the Republic of the Marshall Islands, Atlas jurisdiction of incorporation and where its vessels are registered, Atlas is subject to yearly corporate maintenance fees and tonnage taxes for each registered vessel.
Because we do not, and we do not expect that we will, conduct business or operations in the Republic of the Marshall Islands, under current Republic of the Marshall Islands law, you will not be subject to the Republic of the Marshall Islands taxation or withholding on distributions, including upon a return of capital, Atlas makes to you as a shareholder.
In addition, you will not be subject to the Republic of the Marshall Islands stamp, capital gains or other taxes on the purchase, ownership or disposition of Atlas shares and you will not be required by the Republic of the Marshall Islands to file a tax return relating to such shares.
Each shareholder is urged to consult such shareholders tax counsel or other advisor concerning the consequences of owning and disposing of Atlas shares in their particular circumstances. Further, it is the responsibility of each shareholder to file all state, local and non-U.S., as well as U.S. federal tax returns that may be required of such shareholder.
Material U.K. Tax Considerations
The following discussion is the opinion of Osborne Clarke LLP, our U.K. tax counsel, as to the material U.K. tax considerations under current U.K. tax law and HM Revenue & Customs (HMRC) published practice applying as at the date of this proxy statement/prospectus (both of which are subject to change at any time, possibly with retrospective effect) relating to the holding of Atlas shares by non-U.K. tax resident holders of Atlas shares. It does not constitute legal or tax advice to any particular shareholder and does not purport to be a complete analysis of all
U.K. tax considerations relating to the holding of shares, or all of the circumstances in which holders of Atlas shares may benefit from an exemption or relief from U.K. taxation. It is understood that Atlas does not (and will not) derive 75% or more of its qualifying asset value from U.K. land, and that, Atlas is solely resident in the U.K. for tax purposes and will therefore be subject to the U.K. tax regime.
This guide may not relate to certain classes of shareholders, such as (but not limited to):
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persons who are connected with the company; |
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financial institutions; |
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insurance companies; |
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charities or tax-exempt organizations; |
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collective investment schemes; |
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pension schemes; |
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market makers, intermediaries, brokers or dealers in securities; |
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persons who have (or are deemed to have) acquired their shares by virtue of an office or employment or who are or have been officers or employees of the company or any of its affiliates; and |
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individuals who are subject to U.K. taxation on a remittance basis. |
THESE PARAGRAPHS ARE A SUMMARY OF MATERIAL U.K. TAX CONSIDERATIONS RELATING TO THE HOLDING OF ATLAS SHARES AND ARE INTENDED AS A GENERAL GUIDE ONLY. IT IS RECOMMENDED THAT ALL HOLDERS OF ATLAS SHARES OBTAIN ADVICE AS TO THE CONSEQUENCES OF OWNERSHIP AND DISPOSAL OF ATLAS SHARES IN THEIR OWN SPECIFIC CIRCUMSTANCES FROM THEIR OWN TAX ADVISORS. IN PARTICULAR, NON-U.K. RESIDENT OR DOMICILED PERSONS ARE ADVISED TO CONSIDER THE POTENTIAL IMPACT OF ANY RELEVANT DOUBLE TAXATION AGREEMENTS.
Dividends; Withholding Tax
Dividends paid by Atlas will not be subject to any withholding or deduction for or on account of U.K. tax.
Income Tax
An individual holder of Atlas shares who is not resident for tax purposes in the U.K. will not be chargeable to U.K. income tax on dividends received from Atlas unless he or she carries on (whether solely or in partnership) a trade, profession or vocation in the U.K. through a branch or agency to which the shares are attributable. There are certain exceptions for trading in the U.K. through independent agents, such as some brokers and investment managers.
Corporation Tax
A corporate holder of shares who is not resident for tax purposes in the U.K. will not be chargeable to U.K. corporation tax on dividends received from Atlas unless it carries on (whether solely or in partnership) a trade in the U.K. through a permanent establishment to which the shares are attributable.
Chargeable Gains
A holder of Atlas shares who is not resident for tax purposes in the U.K. will not generally be liable to U.K. capital gains tax or corporation tax on chargeable gains on a disposal (or deemed disposal) of Atlas shares unless the person is carrying on (whether solely or in partnership) a trade, profession or vocation in the U.K. through a permanent establishment, branch or agency to which the shares are attributable. However, an individual holder of Atlas shares who has ceased to be resident for tax purposes in the U.K. for a period of less than five years and who disposes of Atlas shares during that period may be liable, on his or her return to the U.K., to U.K. tax on any capital gain realized (subject to any available exemption or relief).
Stamp duty and stamp duty reserve tax (SDRT)
No U.K. stamp duty or stamp duty reserve tax (SDRT) will be payable on the issuance of Atlas shares. U.K. stamp duty will generally not need to be paid on a transfer of Atlas shares, and no U.K. SDRT will be payable in respect of any agreement to transfer Atlas shares unless they are registered in a register kept in the U.K. by or on behalf of Atlas. It is not intended that such a register will be kept in the U.K.. The statements in this paragraph summarize the current position on stamp duty and SDRT and are intended as a general guide only. Special rules apply to agreements made by, amongst others, intermediaries and certain categories of person may be liable to stamp duty or SDRT at higher rates. In particular, this paragraph does not consider where shares are issued or transferred to clearance services or depository receipt issuers.
Exhibit 99.5
Atlas Corp. and Seaspan Corporation Announce:
Closing of Holding Company Reorganization
Atlas Corp. to commence trading as ATCO on February 28, 2020
HONG KONG, China, February 27, 2020 Atlas Corp. (Atlas) and Seaspan Corporation (NYSE: SSW) (Seaspan) today announced the closing of Seaspans previously announced holding company reorganization (the Reorganization) to create a new holding company, Atlas. In conjunction with the Reorganization, Atlas expects to announce the closing of Atlas acquisition of APR Energy Limited (APR), a global leader in fast-track, mobile power solutions (the Acquisition and together with the Reorganization, the Transactions). With completion of the Transactions, Seaspan and APR will both become wholly-owned subsidiaries of Atlas.
The Reorganization was implemented through the merger of Seaspans indirect wholly-owned subsidiary into Seaspan, with Seaspan continuing as the surviving corporation and a direct wholly-owned subsidiary of Atlas. The Reorganization was approved by Seaspan shareholders at the Special Meeting of Shareholders held on February 27, 2020 in Hong Kong. Of the 81% outstanding shares that voted, over 99% were in favour of the Reorganization. Under the Reorganization, Seaspan shareholders will receive one Atlas common share and one Atlas preferred share, as applicable, for each Seaspan common share and each Seaspan preferred share they held immediately prior to the closing of the Reorganization.
Please refer to Atlas Registration Statement on Form F-4 for additional information related to the Reorganization.
Atlas Shares
Atlas common shares and Atlas preferred shares will be listed on the New York Stock Exchange (the NYSE) under the symbols ATCO, ATCO-PD, ATCO-PE, ATCO-PG, ATCO-PH, and ATCO-PI, respectively, with trading to commence on the NYSE on February 28, 2020.
Seaspan Securities
In connection with the Reorganization, Seaspan shares will cease trading on the NYSE after markets close on February 27, 2020.
Seaspan intends to file a Form 25 with the United States Securities and Exchange Commission (the SEC) to delist and deregister its outstanding 5.50% senior notes due 2025 and related guarantees (the 2025 Notes), 5.50% senior notes due 2026 and related guarantees (the 2026 Notes), and 7.125% senior unsecured notes due 2027 (the 2027 Notes and together with the 2025 Notes and 2026 Notes, the Notes). The last day of trading of the Notes on the NYSE will be Monday, March 9, 2020.
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Seaspan has not arranged for, and does not intend to arrange for, listing and/or registration of the 2027 Notes on another securities exchange or for quotation on another quotation medium. Seaspan intends to exercise its option to redeem the 2027 Notes on October 10, 2020, the first date for early redemption, at par plus accrued and unpaid interest to, but not including, such redemption date. The 2025 Notes and 2026 Notes have been admitted to the official list of Euronext Dublin and are currently trading on the Global Exchange Market, the exchange regulated market of Euronext Dublin (the GEM).
About Seaspan
Seaspan is a leading independent charter owner and operator of containerships with industry leading integrated ship management services. Seaspan charters its vessels primarily pursuant to long-term, fixed-rate time charters to seven of the worlds top eight container shipping liners. Seaspans fleet consists of 123 containerships, including five vessels Seaspan has agreed to purchase, which have not yet been delivered, representing a total capacity of approximately 1,023,000 TEU. Seaspans current operating fleet of 118 vessels has an average age of approximately seven years and an average remaining lease period of approximately four years, on a TEU-weighted basis.
About APR
APR provides rapidly deployable, large-scale power and fast-track mobile power to underserved markets and industries. APRs mobile, turnkey power plants help run cities, countries and industries around the world in both developed and developing markets.
Cautionary Note Regarding Forward-Looking Statements
This release contains certain forward-looking statements (as such term is defined in Section 21E of the Securities Exchange Act of 1934, as amended) concerning future events, including forward-looking statements regarding the acquisition of APR, the listing of the Atlas shares on the NYSE and the redemption of the 2027 Notes. Statements that are predictive in nature, that depend upon or refer to future events or conditions, or that include words such as expects, anticipates, intends, plans, believes, estimates, projects, forecasts, will, may, potential, should, and similar expressions are forward looking statements. These forward-looking statements reflect managements current expectations only as of the date of this release. As a result, you are cautioned not to rely on any forward-looking statements. Although these statements are based upon assumptions we believe to be reasonable based upon available information, they are subject to risks and uncertainties. These risks and uncertainties include, but are not limited to: potential delays in, or failure to consummate, the Acquisition, that Seaspan may determine not to exercise its option to redeem the 2027 Notes on October 10, 2020 or, if it does exercise such option, may not have sufficient liquidity to effectuate such redemption; and other factors detailed from time to time in our periodic reports and filings with the SEC, including Seaspans Annual Report on Form 20-F for the year ended December 31, 2018 and the Reports of Foreign Private Issuer on Form 6-K filed from time to time thereafter. We expressly disclaim any obligation to update or revise any of these forward-looking statements, whether because of future events, new information, a change in our views or expectations, or otherwise. We make no prediction or statement about the performance of any of our securities.
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Investor Inquiries:
Bill Stormont
Investor Relations
Atlas Corp.
Tel. +1-604-638-7240
Email: IR@atlascorporation.com
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