Delaware | | | 83-1482060 |
(State or other jurisdiction of incorporation or organization) | | | (I.R.S. Employer Identification Number) |
Large accelerated filer | | | ☒ | | | Accelerated filer | | | ☐ |
Non-accelerated filer | | | ☐ | | | Smaller reporting company | | | ☐ |
| | | | Emerging growth company | | | ☐ |
• | our Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the SEC on February 29, 2024; |
• | our Registration Statement on Form 8-A/A for registration of Class A common stock pursuant to Section 12(b) of the Exchange Act, filed on August 7, 2020; and |
• | the portions of our Definitive Proxy Statement on Schedule 14A for our 2023 Annual Meeting of Shareholders, filed with the SEC on April 5, 2023, that are incorporated by reference into our Annual Report on Form 10-K for the fiscal year ended December 31, 2022. |
• | the results of our subsidiaries, affiliates, joint ventures and special purpose entities in which we invest and their ability to make dividends or distributions to us; |
• | construction and operational risks related to our facilities and assets, including cost overruns and delays; |
• | failure of LNG (as defined herein) or natural gas to be a competitive source of energy in the markets in which we operate, and seek to operate; |
• | complex regulatory and legal environments related to our business, assets and operations, including actions by governmental entities or changes to regulation or legislation, in particular related to our permits, approvals and authorizations for the construction and operation of our facilities; |
• | delays or failure to obtain and maintain approvals and permits from governmental and regulatory agencies; |
• | failure to obtain a return on our investments for the development of our projects and assets and the implementation of our business strategy; |
• | failure to maintain sufficient working capital for the development and operation of our business and assets; |
• | failure to convert our customer pipeline into actual sales; |
• | lack of asset, geographic or customer diversification, including loss of one or more of our customers; |
• | competition from third parties in our business; |
• | cyclical or other changes in the demand for and price of LNG and natural gas; |
• | inability to procure LNG at necessary quantities or at favorable prices to meet customer demand, or otherwise to manage LNG supply and price risks, including hedging arrangements; |
• | inability to successfully develop and implement our technological solutions; |
• | inability to service our debt and comply with our covenant restrictions; |
• | inability to obtain additional financing to effect our strategy; |
• | inability to successfully complete mergers, sales, divestments or similar transactions related to our businesses or assets or to integrate such businesses or assets and realize the anticipated benefits; |
• | economic, political, social and other risks related to the jurisdictions in which we do, or seek to do, business; |
• | weather events or other natural or manmade disasters or phenomena; |
• | any future pandemic or any other major health and safety incident; |
• | increased labor costs, disputes or strikes, and the unavailability of skilled workers or our failure to attract and retain qualified personnel; |
• | the tax treatment of, or changes in tax laws applicable to, us or our business or of an investment in our Class A common stock; and |
• | other risks described in the “Risk Factors” section of our Annual Report on Form 10-K and our other filings with the SEC. |
• | our LNG storage and regasification facility at the Port of Montego Bay, Jamaica, |
• | our marine LNG storage and regasification facility in Old Harbour, Jamaica |
• | our dual-fired combined heat and power facility in Clarendon, Jamaica, |
• | our landed micro-fuel handling facility in San Juan, Puerto Rico, |
• | our LNG receiving facility and gas-fired power plant at the Port of Pichilingue in Baja California Sur, Mexico, and |
• | our Miami Facility. |
• | surety bond premiums to replace lost or stolen certificates, taxes and other governmental charges; |
• | special charges for services requested by a holder of a Class A share; and |
• | other similar fees or charges. |
• | enlarge the obligations of any stockholder without such stockholder’s consent, unless approved by at least a majority of the type or class of shares so affected; or |
• | change the term of existence of our company. |
• | a change in our name, the location of our principal place of our business, our registered agent or our registered office; |
• | an amendment that our board of directors determines, based upon the advice of counsel, to be necessary or appropriate to prevent us, members of our board, or our officers, agents or trustees from in any manner being subjected to the provisions of the Investment Company Act of 1940, the Investment Advisers Act of 1940, or “plan asset” regulations adopted under the Employee Retirement Income Security Act of 1974, whether or not substantially similar to plan asset regulations currently applied or proposed; |
• | an amendment that our board of directors determines to be necessary or appropriate for the authorization of additional securities; |
• | any amendment expressly permitted in our organizational documents to be made by our board of directors acting alone; |
• | an amendment effected, necessitated or contemplated by a merger agreement that has been approved under the terms of our organizational documents; |
• | any amendment that our board of directors determines to be necessary or appropriate for the formation by us of, or our investment in, any corporation, partnership or other entity, as otherwise permitted by our organizational documents; |
• | a change in our fiscal year or taxable year and related changes; and |
• | any other amendments substantially similar to any of the matters described in the clauses above. |
• | do not adversely affect the stockholders in any material respect; |
• | are necessary or appropriate to satisfy any requirements, conditions or guidelines contained in any opinion, directive, order, ruling or regulation of any federal or state agency or judicial authority or contained in any federal or state statute; |
• | are necessary or appropriate to facilitate the trading of shares or to comply with any rule, regulation, guideline or requirement of any securities exchange on which the shares are or will be listed for trading, compliance with any of which our board of directors deems to be in the best interests of us and our stockholders; |
• | are necessary or appropriate for any action taken by our board of directors relating to splits or combinations of shares under the provisions of our Bylaws; or |
• | are required to effect the intent of the provisions of our organizational documents or are otherwise contemplated by our organizational documents. |
• | prior to such time, our board of directors approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder; |
• | upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of our voting stock outstanding at the time the transaction commenced, excluding certain shares; or |
• | at or subsequent to that time, the business combination is approved by our board of directors and by the affirmative vote of holders of at least two-thirds of our outstanding voting stock that is not owned by the interested stockholder. |
• | any derivative action or proceeding brought on our behalf; |
• | any action asserting a claim of breach of a fiduciary duty owed by any of our directors, officers, employees or agents to us or our stockholders; |
• | any action asserting a claim against us or any director or officer or other employee of ours arising pursuant to any provision of the DGCL or our organizational documents; or |
• | any action asserting a claim against us or any director or officer or other employee of ours that is governed by the internal affairs doctrine, in each such case subject to such Court of Chancery having personal jurisdiction over the indispensable parties named as defendants therein. |
• | any material change, through any acquisition, disposition of assets or otherwise, in the nature of our business or operations and our subsidiaries as of February 4, 2019; |
• | terminating Wesley Edens as our chief executive officer or as Chairman of the Board of Directors and hiring or appointing his successor; |
• | any transaction that, if consummated, would constitute a Change of Control (as defined in our Certificate of Incorporation) or entering into any definitive agreement or series of related agreements that govern any transaction or series of related transactions that, if consummated, would result in a Change of Control; |
• | any increase or decrease in the size of the board of directors, committees of the board of directors and board and committees of our subsidiaries; |
• | any voluntary election by us or any of our subsidiaries to liquidate or dissolve or commence bankruptcy or insolvency proceedings or the adoption of a plan with respect to any of the foregoing; and |
• | any amendment, modification or waiver of our organizational documents or any other of our governing documents following the date of our Certificate of Incorporation that materially and adversely affects any Consenting Entity or any of their affiliates. |
• | all outstanding depositary shares to which it relates have been redeemed or converted; or |
• | the depositary has made a final distribution to the holders of the depositary shares issued under the deposit agreement upon our liquidation, dissolution or winding up. |
• | the title and aggregate principal amount of the debt securities and any limit on the aggregate principal amount of such series; |
• | any applicable subordination provisions for any subordinated debt securities; |
• | the maturity date(s) or method for determining same; |
• | the interest rate(s) or the method for determining same; |
• | the dates on which interest will accrue or the method for determining dates on which interest will accrue and dates on which interest will be payable and whether interest will be payable in cash, additional securities or some combination thereof; |
• | whether the debt securities are convertible or exchangeable into other securities and any related terms and conditions; |
• | redemption or early repayment provisions; |
• | authorized denominations; |
• | if other than the principal amount, the principal amount of debt securities payable upon acceleration; |
• | place(s) where payment of principal and interest may be made, where debt securities may be presented and where notices or demands upon the company may be made; |
• | the form or forms of the debt securities of the series including such legends as may be required by applicable law; |
• | whether the debt securities will be issued in whole or in part in the form of one or more global securities and the date as of which the securities are dated if other than the date of original issuance; |
• | whether the debt securities are secured and the terms of such security; |
• | the amount of discount or premium, if any, with which the debt securities will be issued; |
• | any covenants applicable to the particular debt securities being issued; |
• | any additions or changes in the defaults and events of default applicable to the particular debt securities being issued; |
• | the guarantors of each series, if any, and the extent of the guarantees (including provisions relating to seniority, subordination and release of the guarantees), if any; |
• | the currency, currencies or currency units in which the purchase price for, the principal of and any premium and any interest on, the debt securities will be payable; |
• | the time period within which, the manner in which and the terms and conditions upon which we or the holders of the debt securities can select the payment currency; |
• | our obligation or right to redeem, purchase or repay debt securities under a sinking fund, amortization or analogous provision; |
• | any restriction or conditions on the transferability of the debt securities; |
• | provisions granting special rights to holders of the debt securities upon occurrence of specified events; |
• | additions or changes relating to compensation or reimbursement of the trustee of the series of debt securities; |
• | provisions relating to the modification of the indenture both with and without the consent of holders of debt securities issued under the indenture and the execution of supplemental indentures for such series; and |
• | any other terms of the debt securities (which terms shall not be inconsistent with the provisions of the TIA, but may modify, amend, supplement or delete any of the terms of the indenture with respect to such series of debt securities). |
• | the offering price; |
• | the currency or currencies, including composite currencies, in which the purchase price and/or exercise price of the warrants may be payable; |
• | the number of warrants offered; |
• | the exercise price and the amount of securities you will receive upon exercise; |
• | the procedure for exercise of the warrants and the circumstances, if any, that will cause the warrants to be automatically exercised; |
• | the rights, if any, we have to redeem the warrants; |
• | the date on which the right to exercise the warrants will commence and the date on which the warrants will expire; |
• | the name of the warrant agent; and |
• | any other material terms of the warrants. |
| | Class A Common Stock Beneficially Owned | | | Class A Common Stock Offered Hereby | | | Class A Common Stock Beneficially Owned After the Offering | |||||||
| | Number | | | %(1) | | | Number | | | %(1) | ||||
Selling Stockholders | | | | | | | | | | | |||||
Fortress Equity Partners GP LLC(2) | | | 13,399,317 | | | 6.5% | | | 13,399,317 | | | — | | | —% |
Energy Transition Holdings LLC(3) | | | 25,559,846 | | | 12.5% | | | 25,559,846 | | | — | | | —% |
| | | | | | | | | | ||||||
Directors and Executive Officers | | | | | | | | | | | |||||
Wesley R. Edens(4) | | | 47,540,924 | | | 23.2% | | | 47,540,924 | | | — | | | —% |
Randal A. Nardone(5) | | | 26,196,526 | | | 12.8% | | | 26,196,526 | | | — | | | —% |
Christopher S. Guinta | | | 201,653 | | | * | | | 201,653 | | | — | | | * |
Desmond Iain Catterall | | | 69,841 | | | * | | | 69,841 | | | — | | | * |
David J. Grain | | | 114,294 | | | * | | | 114,294 | | | — | | | * |
C. William Griffin | | | 333,429 | | | * | | | 333,429 | | | — | | | * |
John J. Mack | | | 1,178,013 | | | * | | | 1,178,013 | | | — | | | * |
Katherine E. Wanner | | | 77,129 | | | * | | | 77,129 | | | — | | | * |
* | Represents beneficial ownership of less than one percent of shares outstanding. See footnote (1). |
(1) | As of February 26, 2024, we had 205,033,557 shares of Class A common stock outstanding. |
(2) | Fortress Equity Partners GP LLC (“Fortress Equity GP”) beneficially owns 13,399,317 shares of our Class A common stock. Fortress Operating Entity I LP (“FOE I” and, together with Fortress Equity GP, the “Fortress Parties”) is the sole member of Fortress Equity GP. The address for the Fortress Parties is c/o Fortress Investment Group LLC, 1345 Avenue of the Americas, 46th Floor, New York, NY 10105, Attention: Michael Cohn. Messers Edens and Nardone are officers of FOE I and each disclaim beneficial ownership of the shares of Class A common stock beneficially owned by Fortress Equity GP. |
(3) | Energy Transition Holdings LLC is managed by Great Mountain Partners LLC. Jonathan Rotolo and Alexander Thomson are the managers of Great Mountain Partners LLC and, in that capacity, have voting and dispositive power over the shares of Class A common stock held by Energy Transition Holdings LLC. Each of Great Mountain Partners LLC, Mr. Rotolo and Mr. Thomson has disclaimed beneficial ownership of the shares, except to the extent of their pecuniary interest therein. The principal business address of the entities identified herein is 157 Church Street, 20th Floor, New Haven, CT 06510. |
(4) | Consists of 29,928,173 shares of Class A common stock held by Edens Family Partners LLC and 17,612,751 shares of Class A common stock held by WRE 2012 Trust LLC (“WRE Trust”), a limited liability company organized under the laws of the State of Delaware. Mr. Edens is the sole beneficial owner of Edens Family Partners LLC. Mr. Edens has the sole right to receive or direct the receipt of dividends on, and the proceeds from, the sale of all such shares. NFE WE LLC and NFE RN LLC, each controlled by Mr. Edens together with Mr. Nardone, have the right to appoint six of the eight members to the Company’s board of directors. |
(5) | Mr. Nardone has the sole right to receive or direct the receipt of dividends on, and the proceeds from, the sale of all such shares of Class A common stock. NFE WE LLC and NFE RN LLC, each controlled by Mr. Nardone together with Mr. Edens, have the right to appoint six of the eight members to the Company’s board of directors. |
• | to underwriters for resale to purchasers; |
• | directly to purchasers; |
• | through agents or dealers to purchasers; |
• | in “at-the market” offerings (as defined in Rule 415 under the Securities Act of 1933); |
• | through a combination of any of these methods; or |
• | through any other method permitted by applicable law and described in a prospectus supplement. |
• | the terms of the offering; |
• | the names of the underwriters, dealers, agents or direct purchasers and their compensation; |
• | the purchase price of the securities and the net proceeds we will receive from the sale; |
• | any delayed delivery obligations to take the securities; |
• | the nature of the underwriters’ obligations to take the securities; |
• | any securities exchange or market on which the securities may be listed; |
• | the names of any selling stockholders, if applicable; and |
• | other facts material to the transaction. |
• | the gain is effectively connected with such non-U.S. holder’s conduct of a trade or business within the United States (and, if required by an applicable tax treaty, is attributable to a U.S. permanent establishment of such non-U.S. holder); |
• | in the case of a non-U.S. holder that is a non-resident alien individual, such non-U.S. holder is present in the United States for 183 or more days in the taxable year of disposition and certain other requirements are met; or |
• | we are or have been a “United States real property holding corporation” (“USRPHC”) at any time within the shorter of the five-year period ending on the date of such sale, exchange, or other taxable disposition or the period that such non-U.S. holder held our Class A common stock and either (a) our Class A common stock were not treated as regularly traded on an established securities market at the time of the sale, or (b) such non-U.S. holder owns or owned (actually or constructively) more than 5% of our Class A common stock at any time during the shorter of the two periods mentioned above. |
• | whether the investment is prudent under Section 404(a)(1)(B) of ERISA, if applicable, and any other applicable Similar Laws; |
• | whether, in making the investment, the Plan will satisfy the diversification requirements of Section 404(a)(1)(C) of ERISA, if applicable, and any other applicable Similar Laws; |
• | whether the investment is permitted under the terms of the applicable documents governing the Plan; |
• | whether in the future there may be no market in which to sell or otherwise dispose of the security ; |
• | whether the acquisition or holding of such security will constitute a “prohibited transaction” under Section 406 of ERISA or Section 4975 of the Code or any Similar Law (please see discussion under “—Prohibited Transaction Issues” below); and |
• | whether the Plan will be considered to hold, as plan assets, (i) only such security or (ii) an undivided interest in our underlying assets (please see the discussion under “—Plan Asset Issues” below). |
• | equity interests acquired by Covered Plans are “publicly offered securities” (as defined in the DOL regulations)—i.e., the equity interests are part of a class of securities that is widely held by 100 or more investors independent of the issuer and each other, are “freely transferable” (as defined in the DOL regulations), and are either registered under certain provisions of the federal securities laws or sold to the Covered Plan as part of a public offering under certain conditions; |
• | the entity is an “operating company” (as defined in the Plan Asset Regulations)—i.e., it is primarily engaged in the production or sale of a product or service, other than the investment of capital, either directly or through a majority-owned subsidiary or subsidiaries; or |
• | there is no significant investment by “benefit plan investors”, which is defined to mean that immediately after the most recent acquisition by a Covered Plan of any equity interest in the entity, less than 25% of the total value of each class of equity interest (disregarding certain interests held by persons (other than benefit plan investors) with discretionary authority or control over the assets of the entity or who provide investment advice for a fee (direct or indirect) with respect to such assets, and any affiliates thereof) is held by Covered Plans (which does not include governmental plans, foreign plans and certain church plans), and entities whose underlying assets are deemed to include plan assets by reason of a Covered Plan’s investment in the entity. |
Item 14. | Other Expenses of Issuance and Distribution. |
Securities and Exchange Commission Registration Fee | | | $ * |
FINRA Filing Fee | | | $** |
Accounting Fees and Expenses | | | $** |
Legal Fees and Expenses | | | $** |
Printing Fees | | | $** |
Transfer Agents and Trustees’ Fees and Expenses | | | $** |
Miscellaneous | | | $** |
Total | | | $ * |
* | Under Rules 456(b) and 457(r) of the Securities Act, applicable SEC registration fees have been deferred and will be paid at the time of any particular offering of the securities under this registration statement, and are therefore not estimable at this time. |
** | These fees are calculated based on the number of issuances and amount of securities offered and, accordingly, cannot be estimated at this time. An estimate of the aggregate amount of these expenses will be included in the applicable prospectus supplement. |
Item 15. | Indemnification of Directors and Officers. |
Item 16. | List of Exhibits. |
Exhibit No. | | | Description |
1.1+ | | | Form of Underwriting Agreement |
| | Certificate of Incorporation of New Fortress Energy Inc. (incorporated by reference to Exhibit 99.3 to New Fortress Energy Inc.’s Quarterly Report on Form 10-Q filed on August 4, 2020). | |
| | Bylaws of New Fortress Energy Inc. (incorporated by reference to Exhibit 99.4 to New Fortress Energy Inc.’s Quarterly Report on Form 10-Q filed on August 4, 2020). | |
3.3+ | | | Form of certificate representing preferred stock. |
4.1+ | | | Form of Depositary Agreement (including form of Depositary Receipt). |
| | Form of Indenture for debt securities between the registrant and U.S. Bank National Association, as the trustee (incorporated by reference to Exhibit 4.2 to the Registration Statement on Form S-3 (No. 333-236921)) | |
4.3+ | | | Form of Warrant Agreement (including form of Warrant Certificate). |
5.1* | | | Opinion of Skadden, Arps, Slate, Meagher & Flom LLP. |
| | Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm, for New Fortress Energy Inc. | |
23.4* | | | Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included as part of Exhibit 5.1). |
| | Power of Attorney (included on signature pages to this Registration Statement). | |
| | Statement of Eligibility on Form T-1 of trustee under the Indenture. | |
107* | | | Filing Fee Table. |
* | Filed herewith. |
+ | To be filed as an exhibit to a Current Report on Form 8-K or other filings incorporated herein by reference or to a post-effective amendment hereto, if applicable. |
Item 17. | Undertakings. |
(1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(i) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
(ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; |
(iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
(2) | That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
(4) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
(i) | Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of this registration statement as of the date the filed prospectus was deemed part of and included in this registration statement; and |
(ii) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in this registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of this registration statement or made in a document incorporated or deemed incorporated by reference into this registration statement or prospectus that is part of this registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in this registration statement or prospectus that was part of this registration statement or made in any such document immediately prior to such effective date. |
(5) | That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
(i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
(ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
(iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
(iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
| | New Fortress Energy Inc. | |||||||
| | | | | | ||||
| | By: | | | /s/ Wesley R. Edens | ||||
| | | | Name: | | | Wesley R. Edens | ||
| | | | Title: | | | Chief Executive Officer |
Name | | | Title | | | Date |
/s/ Wesley R. Edens | | | Chief Executive Officer and Chairman (Principal Executive Officer) | | | March 1, 2024 |
Wesley R. Edens | | | ||||
| | | | |||
/s/ Christopher S. Guinta | | | Chief Financial Officer (Principal Financial Officer) | | | March 1, 2024 |
Christopher S. Guinta | | | ||||
| | | | |||
/s/ Yunyoung Shin | | | Chief Accounting Officer (Principal Accounting Officer) | | | March 1, 2024 |
Yunyoung Shin | | | ||||
| | | | |||
/s/ Randal A. Nardone | | | Director | | | March 1, 2024 |
Randal A. Nardone | | | ||||
| | | | |||
/s/ C. William Griffin | | | Director | | | March 1, 2024 |
C. William Griffin | | | ||||
| | | | |||
/s/ John J. Mack | | | Director | | | March 1, 2024 |
John J. Mack | | | ||||
| | | | |||
/s/ Timothy W. Jay | | | Director | | | March 1, 2024 |
Timothy W. Jay | | | ||||
| | | | |||
/s/ David J. Grain | | | Director | | | March 1, 2024 |
David J. Grain | | | ||||
| | | | |||
/s/ Desmond Iain Catterall | | | Director | | | March 1, 2024 |
Desmond Iain Catterall | | | ||||
| | | | |||
/s/ Katherine E. Wanner | | | Director | | | March 1, 2024 |
Katherine E. Wanner | | |
Skadden, Arps, Slate, Meagher & Flom llp
ONE MANHATTAN WEST
NEW YORK, NY 10001
________
TEL: (212) 735-3000
FAX: (212) 735-2000
www.skadden.com
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March 1, 2024
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FIRM/AFFILIATE
OFFICES
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RE:
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New Fortress Energy Inc.
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Registration Statement on Form S-3
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Very truly yours,
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MJS
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/s/ Skadden, Arps, Slate, Meagher & Flom LLP
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Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption “Experts” in this Registration Statement (Form S-3) and related Prospectus of New Fortress Energy Inc. for the registration of Class A Common Stock, Preferred Stock, Depositary Shares, Debt Securities, Warrants and 114,670,972 Shares of Class A Common Stock Offered by Selling Stockholders and to the incorporation by reference therein of our reports dated February 29, 2024, with respect to the consolidated financial statements of New Fortress Energy Inc., and the effectiveness of internal control over financial reporting of New Fortress Energy Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2023, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Philadelphia, Pennsylvania
March 1, 2024
Exhibit 25.1
securities and exchange commission
Washington, D.C. 20549
FORM T-1
Statement of Eligibility Under
The Trust Indenture Act of 1939 of a
Corporation Designated to Act as Trustee
Check if an Application to Determine Eligibility of
a Trustee Pursuant to Section 305(b)(2) ☐
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
91-1821036
I.R.S. Employer Identification No.
800 Nicollet Mall Minneapolis, Minnesota |
55402 |
(Address of principal executive offices) | (Zip Code) |
Brandon Bonfig
U.S. Bank Trust Company, National Association
60 Livingston Avenue
St. Paul, MN 55107
(651) 466-6619
(Name, address and telephone number of agent for service)
New Fortress Energy Inc.
(Issuer with respect to the Securities)
Delaware | 83-1482060 |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
111 W. 19th Street, 8th Floor New York, NY |
10011 |
(Address of Principal Executive Offices) | (Zip Code) |
Debt Securities
(Title of the Indenture Securities)
FORM T-1
Item 1. | GENERAL INFORMATION. Furnish the following information as to the Trustee. |
a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency
Washington, D.C.
b) | Whether it is authorized to exercise corporate trust powers. |
Yes
Item 2. | AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation. |
None
Items 3-15 | Items 3-15 are not applicable because to the best of the Trustee's knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee. |
Item 16. | LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification. |
1. | A copy of the Articles of Association of the Trustee, attached as Exhibit 1. |
2. | A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2. |
3. | A copy of the authorization of the Trustee to exercise corporate trust powers, included as Exhibit 2. |
4. | A copy of the existing bylaws of the Trustee, attached as Exhibit 4. |
5. | A copy of each Indenture referred to in Item 4. Not applicable. |
6. | The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6. |
7. | Report of Condition of the Trustee as of December 31, 2023, published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of St. Paul, State of Minnesota on the 1st of March, 2024.
By: | /s/ Brandon Bonfig | ||
Brandon Bonfig | |||
Vice President |
Exhibit 1
ARTICLES OF ASSOCIATION
OF
U. S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
For the purpose of organizing an association (the “Association”) to perform any lawful activities of national banks, the undersigned enter into the following Articles of Association:
FIRST. The title of this Association shall be U. S. Bank Trust Company, National Association.
SECOND. The main office of the Association shall be in the city of Portland, county of Multnomah, state of Oregon. The business of the Association will be limited to fiduciary powers and the support of activities incidental to the exercise of those powers. The Association may not expand or alter its business beyond that stated in this article without the prior approval of the Comptroller of the Currency.
THIRD. The board of directors of the Association shall consist of not less than five nor more than twenty-five persons, the exact number to be fixed and determined from time to time by resolution of a majority of the full board of directors or by resolution of a majority of the shareholders at any annual or special meeting thereof. Each director shall own common or preferred stock of the Association or of a holding company owning the Association, with an aggregate par, fair market, or equity value of not less than $1,000, as of either (i) the date of purchase, (ii) the date the person became a director, or (iii) the date of that person's most recent election to the board of directors, whichever is more recent. Any combination of common or preferred stock of the Association or holding company may be used.
Any vacancy in the board of directors may be filled by action of a majority of the remaining directors between meetings of shareholders. The board of directors may increase the number of directors up to the maximum permitted by law. Terms of directors, including directors selected to fill vacancies, shall expire at the next regular meeting of shareholders at which directors are elected, unless the directors resign or are removed from office. Despite the expiration of a director's term, the director shall continue to serve until his or her successor is elected and qualified or until there is a decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the board of directors, without voting power or power of final decision in matters concerning the business of the Association, may be appointed by resolution of a majority of the full board of directors, or by resolution of shareholders at any annual or special meeting. Honorary or advisory directors shall not be counted to determined the number of directors of the Association or the presence of a quorum in connection with any board action, and shall not be required to own qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders to elect directors and transact whatever other business may be brought before the meeting. It shall be held at the main office or any other convenient place the board of directors may designate, on the day of each year specified therefor in the Bylaws, or if that day falls on a legal holiday in the state in which the Association is located, on the next following banking day. If no election is held on the day fixed or in the event of a legal holiday on the following banking day, an election may be held on any subsequent day within 60 days of the day fixed, to be designated by the board of directors, or, if the directors fail to fix the day, by shareholders representing two-thirds of the shares issued and outstanding. In all cases, at least 10 days’ advance notice of the meeting shall be given to the shareholders by first-class mail.
In all elections of directors, the number of votes each common shareholder may cast will be determined by multiplying the number of shares he or she owns by the number of directors to be elected. Those votes may be cumulated and cast for a single candidate or may be distributed among two or more candidates in the manner selected by the shareholder. On all other questions, each common shareholder shall be entitled to one vote for each share of stock held by him or her.
A director may resign at any time by delivering written notice to the board of directors, its chairperson, or to the Association, which resignation shall be effective when the notice is delivered unless the notice specifies a later effective date.
A director may be removed by the shareholders at a meeting called to remove him or her, when notice of the meeting stating that the purpose or one of the purposes is to remove him or her is provided, if there is a failure to fulfill one of the affirmative requirements for qualification, or for cause; provided, however, that a director may not be removed if the number of votes sufficient to elect him or her under cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital stock of the Association shall be 1,000,000 shares of common stock of the par value of ten dollars ($10) each; but said capital stock may be increased or decreased from time to time, according to the provisions of the laws of the United States. The Association shall have only one class of capital stock.
No holder of shares of the capital stock of any class of the Association shall have any preemptive or preferential right of subscription to any shares of any class of stock of the Association, whether now or hereafter authorized, or to any obligations convertible into stock of the Association, issued, or sold, nor any right of subscription to any thereof other than such, if any, as the board of directors, in its discretion, may from time to time determine and at such price as the board of directors may from time to time fix.
Transfers of the Association's stock are subject to the prior written approval of a federal depository institution regulatory agency. If no other agency approval is required, the approval of the Comptroller of the Currency must be obtained prior to any such transfers.
Unless otherwise specified in the Articles of Association or required by law, (1) all matters requiring shareholder action, including amendments to the Articles of Association must be approved by shareholders owning a majority voting interest in the outstanding voting stock, and (2) each shareholder shall be entitled to one vote per share.
Unless otherwise specified in the Articles of Association or required by law, all shares of voting stock shall be voted together as a class, on any matters requiring shareholder approval.
Unless otherwise provided in the Bylaws, the record date for determining shareholders entitled to notice of and to vote at any meeting is the close of business on the day before the first notice is mailed or otherwise sent to the shareholders, provided that in no event may a record date be more than 70 days before the meeting.
The Association, at any time and from time to time, may authorize and issue debt obligations, whether subordinated, without the approval of the shareholders. Obligations classified as debt, whether subordinated, which may be issued by the Association without the approval of shareholders, do not carry voting rights on any issue, including an increase or decrease in the aggregate number of the securities, or the exchange or reclassification of all or part of securities into securities of another class or series.
SIXTH. The board of directors shall appoint one of its members president of this Association and one of its members chairperson of the board and shall have the power to appoint one or more vice presidents, a secretary who shall keep minutes of the directors' and shareholders' meetings and be responsible for authenticating the records of the Association, and such other officers and employees as may be required to transact the business of this Association. A duly appointed officer may appoint one or more officers or assistant officers if authorized by the board of directors in accordance with the Bylaws.
The board of directors shall have the power to:
(1) | Define the duties of the officers, employees, and agents of the Association. |
(2) | Delegate the performance of its duties, but not the responsibility for its duties, to the officers, employees, and agents of the Association. |
(3) | Fix the compensation and enter employment contracts with its officers and employees upon reasonable terms and conditions consistent with applicable law. |
(4) | Dismiss officers and employees. |
(5) | Require bonds from officers and employees and to fix the penalty thereof. |
(6) | Ratify written policies authorized by the Association's management or committees of the board. |
(7) | Regulate the manner any increase or decrease of the capital of the Association shall be made; provided that nothing herein shall restrict the power of shareholders to increase or decrease the capital of the Association in accordance with law, and nothing shall raise or lower from two-thirds the percentage required for shareholder approval to increase or reduce the capital. |
(8) | Manage and administer the business and affairs of the Association. |
(9) | Adopt initial Bylaws, not inconsistent with law or the Articles of Association, for managing the business and regulating the affairs of the Association. |
(10) | Amend or repeal Bylaws, except to the extent that the Articles of Association reserve this power in whole or in part to the shareholders. |
(11) | Make contracts. |
(12) | Generally perform all acts that are legal for a board of directors to perform. |
SEVENTH. The board of directors shall have the power to change the location of the main office to any authorized branch within the limits of the city of Portland, Oregon, without the approval of the shareholders, or with a vote of shareholders owning two-thirds of the stock of the Association for a location outside such limits and upon receipt of a certificate of approval from the Comptroller of the Currency, to any other location within or outside the limits of the city of Portland, Oregon, but not more than thirty miles beyond such limits. The board of directors shall have the power to establish or change the location of any office or offices of the Association to any other location permitted under applicable law, without approval of shareholders, subject to approval by the Comptroller of the Currency.
EIGHTH. The corporate existence of this Association shall continue until termination according to the laws of the United States.
NINTH. The board of directors of the Association, or any shareholder owning, in the aggregate, not less than 25 percent of the stock of the Association, may call a special meeting of shareholders at any time. Unless otherwise provided by the Bylaws or the laws of the United States, or waived by shareholders, a notice of the time, place, and purpose of every annual and special meeting of the shareholders shall be given by first-class mail, postage prepaid, mailed at least 10, and no more than 60, days prior to the date of the meeting to each shareholder of record at his/her address as shown upon the books of the Association. Unless otherwise provided by the Bylaws, any action requiring approval of shareholders must be effected at a duly called annual or special meeting.
TENTH. These Articles of Association may be amended at any regular or special meeting of the shareholders by the affirmative vote of the holders of a majority of the stock of the Association, unless the vote of the holders of a greater amount of stock is required by law, and in that case by the vote of the holders of such greater amount; provided, that the scope of the Association's activities and services may not be expanded without the prior written approval of the Comptroller of the Currency. The Association's board of directors may propose one or more amendments to the Articles of Association for submission to the shareholders.
In witness whereof, we have hereunto set our hands this 11th of June, 1997.
Exhibit 2
CERTIFICATE OF CORPORATE EXISTENCE AND FIDUCIARY POWERS
I. Michael J. Hsu, Acting Comptroller of die Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession, custody, and control of all records pertaining to the chartering, regulation. and supervision of all national banking associations.
2. "U.S. Bank Trust Company, National Association," Portland, Oregon (Charter No. 23412), is a national banking association formed under the laws of the United States and is authorized thereunder to transact the business of banking and exercise fiduciary powers on the date of this certificate.
IN TESTIMONY WHEREOF, today, December 13, 2023, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the U.S. Department of the Treasury, in the City of Washington, District of Columbia.
Acting Comptroller of the Currency |
Exhibit 4
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
AMENDED AND RESTATED BYLAWS
ARTICLE I
Meetings of Shareholders
Section 1.1. Annual Meeting. The annual meeting of the shareholders, for the election of directors and the transaction of any other proper business, shall be held at a time and place as the Chairman or President may designate. Notice of such meeting shall be given not less than ten (10) days or more than sixty (60) days prior to the date thereof, to each shareholder of the Association, unless the Office of the Comptroller of the Currency (the “OCC”) determines that an emergency circumstance exists. In accordance with applicable law, the sole shareholder of the Association is permitted to waive notice of the meeting. If, for any reason, an election of directors is not made on the designated day, the election shall be held on some subsequent day, as soon thereafter as practicable, with prior notice thereof. Failure to hold an annual meeting as required by these Bylaws shall not affect the validity of any corporate action or work a forfeiture or dissolution of the Association.
Section 1.2. Special Meetings. Except as otherwise specially provided by law, special meetings of the shareholders may be called for any purpose, at any time by a majority of the board of directors (the “Board”), or by any shareholder or group of shareholders owning at least ten percent of the outstanding stock. Every such special meeting, unless otherwise provided by law, shall be called upon not less than ten (10) days nor more than sixty (60) days prior notice stating the purpose of the meeting.
Section 1.3. Nominations for Directors. Nominations for election to the Board may be made by the Board or by any shareholder.
Section 1.4. Proxies. Shareholders may vote at any meeting of the shareholders by proxies duly authorized in writing. Proxies shall be valid only for one meeting and any adjournments of such meeting and shall be filed with the records of the meeting.
Section 1.5. Record Date. The record date for determining shareholders entitled to notice and to vote at any meeting will be thirty days before the date of such meeting, unless otherwise determined by the Board.
Section 1.6. Quorum and Voting. A majority of the outstanding capital stock, represented in person or by proxy, shall constitute a quorum at any meeting of shareholders, unless otherwise provided by law, but less than a quorum may adjourn any meeting, from time to time, and the meeting may be held as adjourned without further notice. A majority of the votes cast shall decide every question or matter submitted to the shareholders at any meeting, unless otherwise provided by law or by the Articles of Association.
Section 1.7. Inspectors. The Board may, and in the event of its failure so to do, the Chairman of the Board may appoint Inspectors of Election who shall determine the presence of quorum, the validity of proxies, and the results of all elections and all other matters voted upon by shareholders at all annual and special meetings of shareholders.
Section 1.8. Waiver and Consent. The shareholders may act without notice or a meeting by a unanimous written consent by all shareholders.
Section 1.9. Remote Meetings. The Board shall have the right to determine that a shareholder meeting not be held at a place, but instead be held solely by means of remote communication in the manner and to the extent permitted by the General Corporation Law of the State of Delaware.
ARTICLE II
Directors
Section 2.1. Board of Directors. The Board shall have the power to manage and administer the business and affairs of the Association. Except as expressly limited by law, all corporate powers of the Association shall be vested in and may be exercised by the Board.
Section 2.2. Term of Office. The directors of this Association shall hold office for one year and until their successors are duly elected and qualified, or until their earlier resignation or removal.
Section 2.3. Powers. In addition to the foregoing, the Board shall have and may exercise all of the powers granted to or conferred upon it by the Articles of Association, the Bylaws and by law.
Section 2.4. Number. As provided in the Articles of Association, the Board of this Association shall consist of no less than five nor more than twenty-five members, unless the OCC has exempted the Association from the twenty-five- member limit. The Board shall consist of a number of members to be fixed and determined from time to time by resolution of the Board or the shareholders at any meeting thereof, in accordance with the Articles of Association. Between meetings of the shareholders held for the purpose of electing directors, the Board by a majority vote of the full Board may increase the size of the Board but not to more than a total of twenty-five directors, and fill any vacancy so created in the Board; provided that the Board may increase the number of directors only by up to two directors, when the number of directors last elected by shareholders was fifteen or fewer, and by up to four directors, when the number of directors last elected by shareholders was sixteen or more. Each director shall own a qualifying equity interest in the Association or a company that has control of the Association in each case as required by applicable law. Each director shall own such qualifying equity interest in his or her own right and meet any minimum threshold ownership required by applicable law.
Section 2.5. Organization Meeting. The newly elected Board shall meet for the purpose of organizing the new Board and electing and appointing such officers of the Association as may be appropriate. Such meeting shall be held on the day of the election or as soon thereafter as practicable, and, in any event, within thirty days thereafter, at such time and place as the Chairman or President may designate. If, at the time fixed for such meeting, there shall not be a quorum present, the directors present may adjourn the meeting until a quorum is obtained.
Section 2.6. Regular Meetings. The regular meetings of the Board shall be held, without notice, as the Chairman or President may designate and deem suitable.
Section 2.7. Special Meetings. Special meetings of the Board may be called at any time, at any place and for any purpose by the Chairman of the Board or the President of the Association, or upon the request of a majority of the entire Board. Notice of every special meeting of the Board shall be given to the directors at their usual places of business, or at such other addresses as shall have been furnished by them for the purpose. Such notice shall be given at least twelve hours (three hours if meeting is to be conducted by conference telephone) before the meeting by telephone or by being personally delivered, mailed, or electronically delivered. Such notice need not include a statement of the business to be transacted at, or the purpose of, any such meeting.
Section 2.8. Quorum and Necessary Vote. A majority of the directors shall constitute a quorum at any meeting of the Board, except when otherwise provided by law; but less than a quorum may adjourn any meeting, from time to time, and the meeting may be held as adjourned without further notice. Unless otherwise provided by law or the Articles or Bylaws of this Association, once a quorum is established, any act by a majority of those directors present and voting shall be the act of the Board.
Section 2.9. Written Consent. Except as otherwise required by applicable laws and regulations, the Board may act without a meeting by a unanimous written consent by all directors, to be filed with the Secretary of the Association as part of the corporate records.
Section 2.10. Remote Meetings. Members of the Board, or of any committee thereof, may participate in a meeting of such Board or committee by means of conference telephone, video or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 2.11. Vacancies. When any vacancy occurs among the directors, the remaining members of the Board may appoint a director to fill such vacancy at any regular meeting of the Board, or at a special meeting called for that purpose.
ARTICLE III
Committees
Section 3.1. Advisory Board of Directors. The Board may appoint persons, who need not be directors, to serve as advisory directors on an advisory board of directors established with respect to the business affairs of either this Association alone or the business affairs of a group of affiliated organizations of which this Association is one. Advisory directors shall have such powers and duties as may be determined by the Board, provided, that the Board's responsibility for the business and affairs of this Association shall in no respect be delegated or diminished.
Section 3.2. Trust Audit Committee. At least once during each calendar year, the Association shall arrange for a suitable audit (by internal or external auditors) of all significant fiduciary activities under the direction of its trust audit committee, a function that will be fulfilled by the Audit Committee of the financial holding company that is the ultimate parent of this Association. The Association shall note the results of the audit (including significant actions taken as a result of the audit) in the minutes of the Board. In lieu of annual audits, the Association may adopt a continuous audit system in accordance with 12 C.F.R. § 9.9(b).
The Audit Committee of the financial holding company that is the ultimate parent of this Association, fulfilling the function of the trust audit committee:
(1) Must not include any officers of the Association or an affiliate who participate significantly in the administration of the Association’s fiduciary activities; and
(2) Must consist of a majority of members who are not also members of any committee to which the Board has delegated power to manage and control the fiduciary activities of the Association.
Section 3.3. Executive Committee. The Board may appoint an Executive Committee which shall consist of at least three directors and which shall have, and may exercise, to the extent permitted by applicable law, all the powers of the Board between meetings of the Board or otherwise when the Board is not meeting.
Section 3.4. Trust Management Committee. The Board of this Association shall appoint a Trust Management Committee to provide oversight of the fiduciary activities of the Association. The Trust Management Committee shall determine policies governing fiduciary activities. The Trust Management Committee or such sub-committees, officers or others as may be duly designated by the Trust Management Committee shall oversee the processes related to fiduciary activities to assure conformity with fiduciary policies it establishes, including ratifying the acceptance and the closing out or relinquishment of all trusts. The Trust Management Committee will provide regular reports of its activities to the Board.
Section 3.5. Other Committees. The Board may appoint, from time to time, committees of one or more persons who need not be directors, for such purposes and with such powers as the Board may determine; however, the Board will not delegate to any committee any powers or responsibilities that it is prohibited from delegating under any law or regulation. In addition, either the Chairman or the President may appoint, from time to time, committees of one or more officers, employees, agents or other persons, for such purposes and with such powers as either the Chairman or the President deems appropriate and proper. Whether appointed by the Board, the Chairman, or the President, any such committee shall at all times be subject to the direction and control of the Board.
Section 3.6. Meetings, Minutes and Rules. An advisory board of directors and/or committee shall meet as necessary in consideration of the purpose of the advisory board of directors or committee, and shall maintain minutes in sufficient detail to indicate actions taken or recommendations made; unless required by the members, discussions, votes or other specific details need not be reported. An advisory board of directors or a committee may, in consideration of its purpose, adopt its own rules for the exercise of any of its functions or authority.
ARTICLE IV
Officers
Section 4.1. Chairman of the Board. The Board may appoint one of its members to be Chairman of the Board to serve at the pleasure of the Board. The Chairman shall supervise the carrying out of the policies adopted or approved by the Board; shall have general executive powers, as well as the specific powers conferred by these Bylaws; and shall also have and may exercise such powers and duties as from time to time may be conferred upon or assigned by the Board.
Section 4.2. President. The Board may appoint one of its members to be President of the Association. In the absence of the Chairman, the President shall preside at any meeting of the Board. The President shall have general executive powers, and shall have and may exercise any and all other powers and duties pertaining by law, regulation or practice, to the office of President, or imposed by these Bylaws. The President shall also have and may exercise such powers and duties as from time to time may be conferred or assigned by the Board.
Section 4.3. Vice President. The Board may appoint one or more Vice Presidents who shall have such powers and duties as may be assigned by the Board and to perform the duties of the President on those occasions when the President is absent, including presiding at any meeting of the Board in the absence of both the Chairman and President.
Section 4.4. Secretary. The Board shall appoint a Secretary, or other designated officer who shall be Secretary of the Board and of the Association, and shall keep accurate minutes of all meetings. The Secretary shall attend to the giving of all notices required by these Bylaws to be given; shall be custodian of the corporate seal, records, documents and papers of the Association; shall provide for the keeping of proper records of all transactions of the Association; shall, upon request, authenticate any records of the Association; shall have and may exercise any and all other powers and duties pertaining by law, regulation or practice, to the Secretary, or imposed by these Bylaws; and shall also perform such other duties as may be assigned from time to time by the Board. The Board may appoint one or more Assistant Secretaries with such powers and duties as the Board, the President or the Secretary shall from time to time determine.
Section 4.5. Other Officers. The Board may appoint, and may authorize the Chairman, the President or any other officer to appoint, any officer as from time to time may appear to the Board, the Chairman, the President or such other officer to be required or desirable to transact the business of the Association. Such officers shall exercise such powers and perform such duties as pertain to their several offices, or as may be conferred upon or assigned to them by these Bylaws, the Board, the Chairman, the President or such other authorized officer. Any person may hold two offices.
Section 4.6. Tenure of Office. The Chairman or the President and all other officers shall hold office until their respective successors are elected and qualified or until their earlier death, resignation, retirement, disqualification or removal from office, subject to the right of the Board or authorized officer to discharge any officer at any time.
ARTICLE V
Stock
Section 5.1. The Board may authorize the issuance of stock either in certificated or in uncertificated form. Certificates for shares of stock shall be in such form as the Board may from time to time prescribe. If the Board issues certificated stock, the certificate shall be signed by the President, Secretary or any other such officer as the Board so determines. Shares of stock shall be transferable on the books of the Association, and a transfer book shall be kept in which all transfers of stock shall be recorded. Every person becoming a shareholder by such transfer shall, in proportion to such person's shares, succeed to all rights of the prior holder of such shares. Each certificate of stock shall recite on its face that the stock represented thereby is transferable only upon the books of the Association properly endorsed. The Board may impose conditions upon the transfer of the stock reasonably calculated to simplify the work of the Association for stock transfers, voting at shareholder meetings, and related matters, and to protect it against fraudulent transfers.
ARTICLE VI
Corporate Seal
Section 6.1. The Association shall have no corporate seal; provided, however, that if the use of a seal is required by, or is otherwise convenient or advisable pursuant to, the laws or regulations of any jurisdiction, the following seal may be used, and the Chairman, the President, the Secretary and any Assistant Secretary shall have the authority to affix such seal:
ARTICLE VII
Miscellaneous Provisions
Section 7.1. Execution of Instruments. All agreements, checks, drafts, orders, indentures, notes, mortgages, deeds, conveyances, transfers, endorsements, assignments, certificates, declarations, receipts, discharges, releases, satisfactions, settlements, petitions, schedules, accounts, affidavits, bonds, undertakings, guarantees, proxies and other instruments or documents may be signed, countersigned, executed, acknowledged, endorsed, verified, delivered or accepted on behalf of the Association, whether in a fiduciary capacity or otherwise, by any officer of the Association, or such employee or agent as may be designated from time to time by the Board by resolution, or by the Chairman or the President by written instrument, which resolution or instrument shall be certified as in effect by the Secretary or an Assistant Secretary of the Association. The provisions of this section are supplementary to any other provision of the Articles of Association or Bylaws.
Section 7.2. Records. The Articles of Association, the Bylaws as revised or amended from time to time and the proceedings of all meetings of the shareholders, the Board, and standing committees of the Board, shall be recorded in appropriate minute books provided for the purpose. The minutes of each meeting shall be signed by the Secretary, or other officer appointed to act as Secretary of the meeting.
Section 7.3. Trust Files. There shall be maintained in the Association files all fiduciary records necessary to assure that its fiduciary responsibilities have been properly undertaken and discharged.
Section 7.4. Trust Investments. Funds held in a fiduciary capacity shall be invested according to the instrument establishing the fiduciary relationship and according to law. Where such instrument does not specify the character and class of investments to be made and does not vest in the Association a discretion in the matter, funds held pursuant to such instrument shall be invested in investments in which corporate fiduciaries may invest under law.
Section 7.5. Notice. Whenever notice is required by the Articles of Association, the Bylaws or law, such notice shall be by mail, postage prepaid, e- mail, in person, or by any other means by which such notice can reasonably be expected to be received, using the address of the person to receive such notice, or such other personal data, as may appear on the records of the Association. Except where specified otherwise in these Bylaws, prior notice shall be proper if given not more than 30 days nor less than 10 days prior to the event for which notice is given.
ARTICLE VIII
Indemnification
Section 8.1. The Association shall indemnify such persons for such liabilities in such manner under such circumstances and to such extent as permitted by Section 145 of the Delaware General Corporation Law, as now enacted or hereafter amended. The Board may authorize the purchase and maintenance of insurance and/or the execution of individual agreements for the purpose of such indemnification, and the Association shall advance all reasonable costs and expenses (including attorneys’ fees) incurred in defending any action, suit or proceeding to all persons entitled to indemnification under this Section 8.1. Such insurance shall be consistent with the requirements of 12 C.F.R. § 7.2014 and shall exclude coverage of liability for a formal order assessing civil money penalties against an institution-affiliated party, as defined at 12 U.S.C. § 1813(u).
Section 8.2. Notwithstanding Section 8.1, however, (a) any indemnification payments to an institution-affiliated party, as defined at 12 U.S.C. § 1813(u), for an administrative proceeding or civil action initiated by a federal banking agency, shall be reasonable and consistent with the requirements of 12 U.S.C. § 1828(k) and the implementing regulations thereunder; and (b) any indemnification payments and advancement of costs and expenses to an institution-affiliated party, as defined at 12 U.S.C. § 1813(u), in cases involving an administrative proceeding or civil action not initiated by a federal banking agency, shall be in accordance with Delaware General Corporation Law and consistent with safe and sound banking practices.
ARTICLE IX
Bylaws: Interpretation and Amendment
Section 9.1. These Bylaws shall be interpreted in accordance with and subject to appropriate provisions of law, and may be added to, altered, amended, or repealed, at any regular or special meeting of the Board.
Section 9.2. A copy of the Bylaws and all amendments shall at all times be kept in a convenient place at the principal office of the Association, and shall be open for inspection to all shareholders during Association hours.
ARTICLE X
Miscellaneous Provisions
Section 10.1. Fiscal Year. The fiscal year of the Association shall begin on the first day of January in each year and shall end on the thirty-first day of December following.
Section 10.2. Governing Law. This Association designates the Delaware General Corporation Law, as amended from time to time, as the governing law for its corporate governance procedures, to the extent not inconsistent with Federal banking statutes and regulations or bank safety and soundness.
***
(February 8, 2021)
Exhibit 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
Dated: March 1, 2024
By: | /s/ Brandon Bonfig | ||
Brandon Bonfig | |||
Vice President |
Exhibit 7
U.S. Bank Trust Company, National Association
Statement of Financial Condition
as of 12/31/2023
($000’s)
12/31/2023 | ||||
Assets | ||||
Cash and Balances Due From Depository Institutions | $ | 1,171,838 | ||
Securities | 4,441 | |||
Federal Funds | 0 | |||
Loans & Lease Financing Receivables | 0 | |||
Fixed Assets | 1,409 | |||
Intangible Assets | 578,492 | |||
Other Assets | 218,268 | |||
Total Assets | $ | 1,974,448 | ||
Liabilities | ||||
Deposits | $ | 0 | ||
Fed Funds | 0 | |||
Treasury Demand Notes | 0 | |||
Trading Liabilities | 0 | |||
Other Borrowed Money | 0 | |||
Acceptances | 0 | |||
Subordinated Notes and Debentures | 0 | |||
Other Liabilities | 255,900 | |||
Total Liabilities | $ | 255,900 | ||
Equity | ||||
Common and Preferred Stock | 200 | |||
Surplus | 1,171,635 | |||
Undivided Profits | 546,713 | |||
Minority Interest in Subsidiaries | 0 | |||
Total Equity Capital | $ | 1,718,548 | ||
Total Liabilities and Equity Capital | $ | 1,974,448 |
Security
Type
|
Security Class Title
|
Fee Calculation
or Carry Forward Rule |
Amount Registered
|
Proposed Maximum
Offering Price Per Unit |
Maximum Aggregate Offering Price
|
Fee Rate
|
Amount of Registration
Fee |
Carry Forward
Form Type |
Carry Forward
File Number |
Carry Forward
Initial Effective Date |
Filing Fee Previously Paid In Connection with Unsold Securities to be Carried Forward
|
||||||||||||||
Newly Registered Securities
|
|||||||||||||||||||||||||
Fees to Be Paid
|
Equity
|
|
Class A Common Stock, par value $0.01 per share
|
|
457(r)
|
|
(1) (2)
|
(1) (2)
|
|
(1) (2)
|
|
(3)
|
(3)
|
||||||||||||
Fees to Be Paid
|
Equity
|
|
Preferred Stock, par value $0.01 per share
|
|
457(r)
|
(1) (2)
|
(1) (2)
|
|
(1) (2)
|
|
(3)
|
|
(3)
|
||||||||||||
Fees to Be Paid
|
Other
|
Depositary Shares
|
457(r)
|
|
(1) (2)
|
|
(1) (2)
|
|
(1) (2)
|
|
(3)
|
|
(3)
|
||||||||||||
Fees to Be Paid
|
Debt
|
|
Debt Securities
|
|
457(r)
|
|
(1) (2)
|
|
(1) (2)
|
|
(1) (2)
|
|
(3)
|
|
(3)
|
||||||||||
Fees to Be Paid
|
Other
|
Warrants
|
457(r)
|
|
(1) (2)
|
|
(1) (2)
|
|
(1) (2)
|
|
(3)
|
|
(3)
|
||||||||||||
Fees Previously Paid
|
N/A
|
N/A
|
N/A
|
N/A
|
|
N/A
|
|
N/A
|
N/A
|
||||||||||||||||
Carry Forward Securities
|
|||||||||||||||||||||||||
Carry Forward Securities
|
Equity
|
Class A Common Stock, par value $0.01 per share
|
415(a)(6)
|
108,312,773
|
$1,501,215,033.78
|
S-3ASR
|
333-254469
|
March 18, 2021
|
$194,857.72 (4)
|
||||||||||||||||
415(a)(6)
|
6,358,199
|
$275,437,180.68
|
S-3ASR
|
333-254469
|
March 18, 2021
|
$30,050.20 (4)
|
|||||||||||||||||||
Total Offering Amounts
|
$1,776,652,214.46
|
N/A
|
|||||||||||||||||||||||
Total Fees Previously Paid
|
N/A
|
||||||||||||||||||||||||
Total Fee Offsets
|
N/A
|
||||||||||||||||||||||||
Net Fee Due
|
N/A
|
(1)
|
Omitted pursuant to Form S-3 Instructions to the Calculation of Filing Fee Tables and Related Disclosure 2.A.iii.c.
|
(2)
|
An indeterminate aggregate initial offering price, principal amount or number of the securities of each identified class is being registered as may
from time to time be offered at indeterminate prices or upon conversion, exchange or exercise of other securities. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of
other securities.
|
(3)
|
The Registrant is relying on Rule 456(b) and Rule 457(r) under the Securities Act of 1933 (the “Securities Act”) to defer payment of all
registration fees. In connection with the securities offered hereby, the Registrant will “pay-as-you-go” in accordance with Rule 456(b). The Registrant will calculate the registration fee applicable to an offer of securities pursuant to
this Registration Statement based on the fee payment rate in effect on the date of such fee payment.
|
(4)
|
As discussed below, pursuant to Rule 415(a)(6) under the Securities Act, this Registration Statement includes 114,670,972 shares of Class A Common Stock that were previously registered and remain unsold (the “Unsold Securities”). Accordingly, no registration fee is due.
Pursuant to Rule 415(a)(6), this Registration Statement includes 108,312,773 shares of Unsold Securities previously
registered pursuant to the registration statement on Form S-3 (File No. 333-236921), which was declared effective on May 6, 2020 (the “Initial Registration Statement”) and subsequently pursuant to the registration statement on Form
S-3ASR (File No. 333-254469), which was automatically effective on March 18, 2021 (the “Expiring Registration Statement”).
The Initial Registration Statement registered 145,050,664 shares of common stock with a proposed maximum aggregate
offering price of $2,010,402,203.04, in respect of which the Registrant paid an aggregate registration fee of $260,950.21 (the “Initial Filing Fee”). A total of 138,692,465 unsold shares of common stock were subsequently registered
under the Expiring Registration Statement and the Initial Filing Fee in respect of such shares of unsold shares of common stock was carried forward to the Expiring Registration Statement. In addition, 6,358,199 new shares of Class A
Common Stock with an aggregate offering price of $275,437,180.68 were registered under the Expiring Registration Statement, in respect of which the Registrant paid an aggregate registration fee of $30,050.20, which shares remain unsold
(the “Subsequent Filing Fee”).
Pursuant to Rule 415(a)(6), $194,857.72 of the Initial Filing Fee is hereby applied to the 108,312,773 shares of
Unsold Securities carried forward and registered hereunder and $30,050.20 of the Subsequent Filing Fee is hereby applied to the 6,358,199 shares of Unsold Securities carried forward and registered hereunder and, as a result, no
additional filing fee is due in respect of such Unsold Securities. In accordance with Rule 415(a)(6), the offering of securities registered under the Expiring Registration Statement will be terminated as of the time of filing of this
Registration Statement.
|