EX-4.8
Published on March 1, 2023
Exhibit 4.8
DESCRIPTION OF THE REGISTRANT’S SECURITIES REGISTERED PURSUANT TO SECTION 12 OF THE SECURITIES EXCHANGE ACT OF 1934
As of January 31, 2023, Athene Holding Ltd. (“we,” “us,” “our” or “the Company”) had five classes of securities registered under Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”): (1) our depositary shares, each representing a 1/1,000th interest in a 6.35% fixed-to-floating rate perpetual non-cumulative preference share, series A, par value $1.00 and liquidation preference $25,000 per series A preference share (our “Series A Preference Shares”); (2) our depositary shares, each representing a 1/1,000th interest in a 5.625% fixed rate perpetual non-cumulative preference share, series B, par value $1.00 and liquidation preference $25,000 per series A preference share (our “Series B Preference Shares”); (3) our depositary shares, each representing a 1/1,000th interest in a 6.375% fixed rate reset perpetual non- cumulative preference share, series C, par value $1.00 and liquidation preference $25,000 per series C preference share (our “Series C Preference Shares”); (4) our depositary shares, each representing a 1/1,000th interest in a 4.875% fixed rate perpetual non-cumulative preference share, series D, par value $1.00 and liquidation preference $25,000 per series D preference share (our “Series D Preference Shares”); and (5) our depositary shares, each representing 1/1,000th interest in a 7.750% fixed rate perpetual non-cumulative preference shares, Series E, $1.00 par value and $25,000 liquidation preference per Series E share (our “Series E Preference Shares” and together with our Series A Preference Shares, our Series B Preference Shares, our Series C Preference Shares, and our Series D Preference Shares, our “Preference Shares”).
As of January 31, 2023, our authorized share capital was $927,109.56 in aggregate par value, consisting of 425,000,000 Class A common shares, par value $0.001 per Class A common share (our “Class A Common Shares”) ($425,000 in aggregate par value), of which 203,805,432 Class A Common Shares were outstanding, all of which are held by Apollo Global Management, Inc., 34,500 Series A Preference Shares ($34,500 in aggregate par value), all of which were outstanding and held of record by one shareholder (a nominee of The Depository Trust Company (“DTC”)), 13,800 Series B Preference Shares ($13,800 in aggregate par value), all of which were outstanding and held of record by one shareholder (a nominee of DTC), 24,000 Series C Preference Shares ($24,000 in aggregate par value), all of which were outstanding and held of record by one shareholder (a nominee of DTC), 23,000 Series D Preference Shares ($23,000 in aggregate par value), all of which were outstanding and held of record by one shareholder (a nominee of DTC), and 20,000 Series E Preference Shares ($20,000 in aggregate par value), all of which were outstanding and held of record by one shareholder (a nominee of DTC).
Description of The Depositary Shares
The following description of the depositary shares representing an interest in the Series A Preference Shares (the “Series A Depositary Shares”), the depositary shares representing an interest in the Series B Preference Shares (the “Series B Depositary Shares”), the depositary shares representing an interest in the Series C Preference Shares (the “Series C Depositary Shares”), the depositary shares representing an interest in the Series D Preference Shares (the “Series D Depositary Shares”), and the depositary shares representing an interest in the Series E Preference Shares (the “Series E Depositary Shares” and together with the Series A Depositary Shares, the Series B Depositary Shares, the Series C Depositary Shares, and the Series D Depositary Shares, the “Depositary Shares”) is a summary and does not purport to be complete. It is subject to and qualified in its entirety by reference to the terms and provisions of the Deposit Agreements (as defined below), the forms of depositary receipts, which contain the terms and provisions of the Depositary Shares, the pertinent sections of our Bye-laws and the pertinent sections of the Certificates of Designations, each of which is incorporated by reference as an exhibit to the Annual Report on Form 10-K of which this Exhibit 4.8 is a part, and to applicable Bermuda law.
General
Each Depositary Share represents a 1/1,000th interest in a Preference Share and is evidenced by a depositary receipt. The underlying Preference Shares are deposited with the depositary pursuant to deposit agreements among us, Computershare Inc. and Computershare Trust Company, N.A., collectively, acting as depositary, and the holders from time to time of the
Exhibit 4.8
depositary receipts (such agreements, the “Deposit Agreements”). Subject to the terms of the Deposit Agreements, each holder of a Depositary Share is entitled, through the depositary, in proportion to the applicable fraction of a Preference Share represented by such Depositary Share, to all the rights and preferences of the Preference Shares represented thereby (including any dividend, liquidation, redemption and voting rights). If the Preference Shares are exchanged for new securities pursuant to the provisions described under “Description of the Preference Shares—Substitution or Variation,” each Depositary Share will represent the same percentage interest in such new security, and will be evidenced by a depositary receipt.
Dividends and Other Distributions
Any dividend or other distribution (including upon our voluntary or involuntary liquidation, dissolution or winding-up) paid in respect of a Depositary Share will be in an amount equal to 1/1,000th of the dividend declared or distribution payable, as the case may be, on the underlying Preference Share. The depositary will distribute any cash dividends or other cash distributions received on each series of Preference Shares, including any additional amounts as described under “Description of the Preference Shares—Dividends—Payment of Additional Amounts,” to the record holders of the respective series of Depositary Shares in proportion to the number of Depositary Shares of such series held by each holder on the relevant record date. If we make a distribution on any series of Preference Shares other than in cash, the depositary will distribute any property received by it to the record holders of the respective series of Depositary Shares in proportion to the number of Depositary Shares of such series held by each holder, unless it determines that the distribution cannot be made proportionally among those holders or that it is not feasible to make a distribution. In that event, the depositary may, with our approval, adopt a method of distribution that it deems practicable, including the sale of the property and distribution of the net proceeds from the sale to the holders of the relevant series of Depositary Shares.
Record dates for the payment of dividends and other matters relating to the Depositary Shares will be the same as the corresponding record dates for the Preference Shares.
Subject to any obligation to pay additional amounts as described in “Description of the Preference Shares—Dividends— Payment of Additional Amounts,” the amount paid as dividends or otherwise distributable by the depositary with respect to the Depositary Shares or the underlying Preference Shares will be reduced by any amounts required to be withheld by us or the depositary on account of taxes or other governmental charges. The depositary may refuse to make any payment or distribution, or any transfer, exchange or withdrawal of any Depositary Shares or the Preference Shares until such taxes or other governmental charges are paid.
Withdrawal of Preference Shares
Unless the related Depositary Shares have been previously called for redemption, a holder of Depositary Shares may surrender his or her depositary receipts at the corporate trust office of the depositary, pay any taxes, charges and fees provided for in the applicable Deposit Agreement and comply with any other requirements of the applicable Deposit Agreement for the number of whole Preference Shares and any money or other property represented by such holder’s depositary receipts. A holder of Depositary Shares who exchanges such depositary receipts for Preference Shares will be entitled to receive whole Preference Shares on the basis set forth herein; partial Preference Shares will not be issued.
However, holders of whole Preference Shares will not be entitled to deposit those shares under the respective Deposit Agreement or to receive Depositary Shares for those shares after the withdrawal. If the Depositary Shares surrendered by the holder in connection with the withdrawal exceed the number of Depositary Shares that represent the number of whole Preference Shares to be withdrawn, the depositary will deliver to the holder at the same time new Depositary Shares evidencing the excess number of Depositary Shares.
Redemption of Depositary Shares
If the Preference Shares underlying the Depositary Shares are redeemed, in whole or in part, a corresponding number of the applicable series of Depositary Shares will be redeemed with the proceeds received by the depositary from the redemption of the related Preference Shares held by the depositary. The redemption price per Depositary Share will be equal to 1/1,000th of the applicable per share redemption price payable in respect of such Preference Shares.
Whenever we redeem Preference Shares of any series held by the depositary, the depositary will redeem, as of the same redemption date, the number of Depositary Shares representing an interest in the Preference Shares of such series so redeemed. If less than all of the outstanding Depositary Shares of a particular series are to be redeemed, the depositary will select the Depositary Shares of that series to be redeemed by lot or pro rata or in such other manner as may be determined
Exhibit 4.8
by the depositary to be fair and equitable and provided that such methodology is consistent with any applicable stock exchange rules. The depositary will mail (or otherwise transmit by an authorized method) notice of redemption to holders of the depositary receipts not less than 30 days (with respect to Series A Depositary Shares) and 15 days (with respect to Series B Depositary Shares, Series C Depositary Shares, Series D Depositary Shares, and Series E Depositary Shares) and not more than 60 days prior to the date fixed for redemption of the Depositary Shares representing an interest in our Preference Shares.
Voting Rights
Holders of the Depositary Shares representing an interest in the Preference Shares will not have any voting rights, except for the limited voting rights described under “Description of the Preference Shares—Voting Rights.”
Because each Depositary Share represents a 1/1,000th interest in a Preference Share, holders of depositary receipts will be entitled to 1/1,000th of a vote per Preference Share under those limited circumstances in which holders of the Preference Shares are entitled to vote. Holders of the Depositary Shares must act through the depositary to exercise any voting rights in respect of the Preference Shares. Although each Depositary Share is entitled to 1/1,000th of a vote, the depositary can vote only whole Preference Shares. While the depositary will aggregate the fractional voting interests of individual holders of depository receipts to vote the maximum number of whole Preference Shares in accordance with the instructions it receives, any remaining votes of holders of Depositary Shares not representing a whole Preference Share will not be voted.
When the depositary receives notice of any meeting at which the holders of the Preference Shares are entitled to vote, the depositary will mail (or otherwise transmit by an authorized method) the information contained in the notice of meeting to the record holders of the Depositary Shares relating to the applicable Preference Shares. Each record holder of the Depositary Shares on the record date, which will be the same date as the record date for the Preference Shares, may instruct the depositary to vote the number of Preference Share votes represented by the holder’s Depositary Shares. To the extent practicable, the depositary will vote the number of Preference Share votes represented by Depositary Shares in accordance with the instructions it receives.
We will agree to take all reasonable actions that the depositary determines are necessary to enable the depositary to vote as instructed. To the extent that the depositary does not receive specific instructions from the holders of any Depositary Shares representing an interest in the applicable Preference Shares, it will not vote the number of the Preference Share votes represented by such Depositary Shares.
Preemptive and Conversion Rights
The holders of the Depositary Shares will not have any preemptive right to subscribe to any additional issue of our shares of any class or series or to any of our securities convertible into such shares and will not have the right to convert Depositary Shares representing an interest in Preference Shares into, or exchange Depositary Shares representing an interest in Preference Shares for, any of our other securities or property.
Amendment and Termination of the Deposit Agreement
The forms of depositary receipt evidencing the Depositary Shares and any provision of the Deposit Agreements may be amended by agreement between us and the depositary. However, any amendment that materially and adversely alters the rights of the existing holders of Depositary Shares or would be materially and adversely inconsistent with the rights of holders of Preference Shares will not be effective unless such amendment has been approved by the record holders of Depositary Shares representing at least the amount of the Depositary Shares then outstanding necessary to approve any amendment that would alter or abrogate the special rights of the applicable series of Preference Shares. We may terminate a Deposit Agreement with the consent of holders of a majority of then outstanding Depositary Shares of the applicable series. A Deposit Agreement will automatically terminate if all outstanding Depositary Shares of the applicable series have been redeemed or if there has been made a final distribution in respect of the applicable series of Preference Shares in connection with our liquidation, dissolution or winding-up, and such distribution has been made to the holders of the Depositary Shares of the applicable series.
Exhibit 4.8
Fees, Charges and Expenses of Depositary
We will pay all transfer and other taxes, assessments, and governmental charges arising solely from the existence of the depositary arrangements. Holders of depositary receipts will pay transfer and other taxes, assessments, and governmental charges and any other charges as are expressly provided in the applicable Deposit Agreement to be for their accounts. The depositary may refuse to effect any transfer of a depositary receipt or any withdrawals of Preference Shares evidenced by a depositary receipt until all taxes, assessments, and governmental charges with respect to the depositary receipt or Preference Shares are paid by their holders.
Resignation and Removal of Depositary
The depositary may resign at any time by delivering to us notice of its election to do so, and we may at any time remove the depositary, with any resignation or removal to take effect upon the appointment of a successor depositary and its acceptance of such appointment. The successor depositary must be appointed within 60 days after delivery of the notice of resignation or removal and must be a bank or trust company having its principal office in the United States and having a combined capital and surplus of at least $50 million. If a successor is not appointed within 60 days, the outgoing depositary may petition a court to appoint a successor.
Miscellaneous
The depositary will forward to the holders of Depositary Shares all of our reports and communications which are delivered to the depositary and which we are required to furnish to the holders of Preference Shares.
Neither we nor the depositary will be liable if we are prevented or delayed by law or any circumstance beyond our control in performing our obligations under the applicable Deposit Agreement. All of our obligations as well as the depositary’s obligations under the respective Deposit Agreement are limited to performance in good faith of our respective duties set forth in the applicable Deposit Agreement, and neither of us will be obligated to prosecute or defend any legal proceeding relating to any Depositary Shares or Preference Shares unless provided with satisfactory indemnity. We, and the depositary, may rely upon written advice of counsel or accountants, or information provided by persons presenting Preference Shares for deposit, holders of Depositary Shares, or other persons believed to be competent and on documents believed to be genuine.
Listing of the Depositary Shares
Our Series A Depositary Shares are listed on the NYSE under the symbol “ATHPrA.”
Our Series B Depositary Shares are listed on the NYSE under the symbol “ATHPrB.”
Our Series C Depositary Shares are listed on the NYSE under the symbol “ATHPrC.”
Our Series D Depositary Shares are listed on the NYSE under the symbol “ATHPrD.”
Our Series E Depositary Shares are listed on the NYSE under the symbol “ATHPrE.”
Transfer Agent, Registrar, Dividend Disbursing Agent and Redemption Agent
Computershare Trust Company, N.A. is the transfer agent and registrar and Computershare Inc. is the dividend disbursing agent and redemption agent, for the Depositary Shares representing an interest in the Preference Shares.
Book-Entry; Delivery and Form
The Depositary Shares will be represented by one or more global securities that will be deposited with and registered in the name of DTC or its nominee. This means that we will not issue certificates to holders of the Depositary Shares except in limited circumstances. The global securities will be issued to DTC, the depository for the Depositary Shares, who will keep a computerized record of its participants (for example, a holder’s broker) whose clients have purchased the Depositary Shares. Each participant will then keep a record of its clients. Unless exchanged in whole or in part for a certificated security, a global security may not be transferred. However, DTC, its nominees, and their successors may transfer a global security as a whole to one another. Beneficial interests in the global securities will be shown on, and transfers of the global securities will be made only through, records maintained by DTC and its participants.
Exhibit 4.8
We will wire dividend payments to DTC’s nominee and we will treat DTC’s nominee as the owner of the global securities for all purposes. Accordingly, we will have no direct responsibility or liability to pay amounts due on the global securities to any holder or any other beneficial owners in the global securities.
Any redemption notices will be sent by us directly to DTC, who will in turn inform the direct participants, who will then contact beneficial holders.
It is DTC’s current practice, upon receipt of any payment of dividends or liquidation amount, to credit direct participants’ accounts on the payment date based on their holdings of beneficial interests in the global securities as shown on DTC’s records. In addition, it is DTC’s current practice to assign any consenting or voting rights to direct participants whose accounts are credited with Preference Shares on a record date, by using an omnibus proxy. Payments by participants to owners of beneficial interests in the global securities, and voting by participants, will be based on the customary practices between the participants and owners of beneficial interests, as is the case with the Preference Shares held for the account of customers registered in “street name.” However, payments will be the responsibility of the participants and not of DTC or us.
Depositary Shares represented by global securities will be exchangeable for certificated securities with the same terms in authorized denominations only if:
•DTC is unwilling or unable to continue as depositary or if DTC ceases to be a clearing agency registered under applicable law and a successor depositary is not appointed by us within 90 days; or
•we determine not to require all of the Depositary Shares to be represented by global securities.
If the book-entry-only system is discontinued, the transfer agent will keep the registration books for the Depositary Shares at its corporate office.
Description of The Preference Shares
The following description of our Preference Shares is a summary and does not purport to be complete. It is subject to and qualified in its entirety by reference to the pertinent sections of our Bye-laws and the Certificates of Designations creating the respective series of Preference Shares, each of which is incorporated by reference as an exhibit to the Annual Report on Form 10-K of which this Exhibit 4.8 is a part, and to applicable Bermuda law.
General
The Certificates of Designations set forth the specific rights, preferences, limitations and other terms of the Preference Shares. Each series of Preference Shares constitutes a series of our authorized preference shares. There is no issued class or series of share capital that ranks senior to the Preference Shares, and each series of Preference Shares ranks equally with the other with respect to the payment of dividends and the distribution of assets on any liquidation, dissolution or winding- up of the Company. See “—Ranking” below.
We will generally be able to pay dividends and distributions upon liquidation, dissolution or winding-up only out of lawfully available funds for such payment (i.e., after taking account of all indebtedness and other non-equity claims). The Preference Shares are fully paid and nonassessable. Holders of the Preference Shares do not have preemptive or subscription rights to acquire more of our capital shares.
The Preference Shares are not convertible into, or exchangeable for, shares of any other class or series of shares or other securities of ours, except under the circumstances set forth under “—Substitution or Variation” below. The Preference Shares have no stated maturity and will not be subject to any sinking fund, retirement fund or purchase fund or other obligation of the Company to redeem, repurchase or retire the Preference Shares.
The depositary is the sole holder of Preference Shares. The holders of Depositary Shares are required to exercise their proportional rights in the Preference Shares through the depositary, as described in “Description of the Depositary Shares.”
Ranking
Each series of Preference Shares:
Exhibit 4.8
•will rank senior to our junior shares (as defined below);
•will rank junior to our senior shares (as defined below) and any existing and future indebtedness of the Company and any of our subsidiaries;
•will rank equally with our parity shares (as defined below), including the other series of Preference Shares;
•will not represent an interest in any of our subsidiaries; and
•will be structurally subordinated in right of payment to all obligations of our subsidiaries. Under Bermuda law, in a winding-up of any of our subsidiaries, the Preference Shares will be subordinated to all existing and future policyholders’ obligations of our subsidiaries.
As used herein, “junior shares” means shares of any class or series that ranks junior to the Preference Shares either as to the payment of dividends or as to the distribution of assets upon any liquidation, dissolution or winding-up of the Company. As of January 31, 2023, our junior shares outstanding consisted solely of our Class A Common Shares.
As used herein, “senior shares” means shares of any class or series that ranks senior to the Preference Shares either as to the payment of dividends or as to the distribution of assets upon any liquidation, dissolution or winding-up of the Company. As of January 31, 2023, we had no senior shares outstanding.
As used herein, “parity shares” means shares of any class or series that ranks equally with the Preference Shares as to the payment of dividends and the distribution of assets on any liquidation, dissolution or winding-up of the Company. As of January 31, 2023, the five series of Preference Shares were our only parity shares outstanding.
Unless our shareholders otherwise provide, our board of directors may from time to time create and issue additional preference shares of other classes and series and fix their relative rights, preferences and limitations. Any such preference shares could be senior shares or parity shares.
Dividends
Dividends on the Preference Shares are non-cumulative. Consequently, if our board of directors or a duly authorized committee of our board of directors does not authorize and declare a dividend for any dividend period, holders of the Preference Shares will not be entitled to receive a dividend for such period, and such undeclared dividend will not accumulate and will not be payable. We will have no obligation to pay dividends for a dividend period after the dividend payment date for such period if our board of directors or a duly authorized committee of our board of directors has not declared such dividend before the related dividend payment date, whether or not dividends are declared for any subsequent dividend period with respect to the Preference Shares.
Holders of Preference Shares will be entitled to receive non-cumulative cash dividends, only when, as and if declared by our board of directors or a duly authorized committee of our board of directors, out of funds legally available for the payment of dividends, from and including the original issue date, quarterly in arrears on the 30th day of March, June, September and December of each year.
To the extent declared, to but excluding June 30, 2029, which we refer to as the “fixed rate period,” dividends on our Series A Preference Shares will be payable in an amount per share equal to 6.35% of the liquidation preference per annum (equivalent to $1,587.50 per share and $1.5875 per Series A Depositary Share per annum). Commencing on June 30, 2029, which is the commencement date of the “floating rate period,” dividends on our Series A Preference Shares will be payable on a non-cumulative basis, when, as and if declared by our board of directors or a duly authorized committee of the board of directors out of funds legally available for the payment of dividends in an amount per share equal to a floating annual rate, reset quarterly, of three-month LIBOR plus 4.253% of the liquidation preference per annum.
To the extent declared, dividends on our Series B Preference Shares will be payable in an amount per share equal to 5.625% of the liquidation preference per annum (equivalent to $1,406.25 per share and $1.40625 per Series B Depositary Share per annum).
To the extent declared, to but excluding September 30, 2025 (the “Series C First Reset Date”), dividends on our Series C Preference Shares will be payable on a non-cumulative basis, with respect to each dividend period, in an amount per share
Exhibit 4.8
equal to 6.375% of the liquidation preference per annum (equivalent to $1,593.75 per share and $1.59375 per Series C Depositary Share per annum). Commencing on the Series C First Reset Date, dividends on the Series C Preference Shares will be payable, on a non-cumulative basis, with respect to each dividend period, only when, as and if declared by our board of directors or a duly authorized committee thereof, during each reset period (as described below), at a rate per annum equal to the Five- year U.S. Treasury Rate as of the most recent reset dividend determination date (as described below) plus 5.97% of the liquidation preference per annum. A “reset date” means the applicable First Reset Date and each date falling on the fifth anniversary of the preceding reset date. Reset dates, including the applicable First Reset Date, will not be adjusted for business days. A “reset period” means the period from, and including, the applicable First Reset Date to, but excluding, the next following reset date and thereafter each period from, and including, each reset date to, but excluding, the next following reset date. A “reset dividend determination date” means, in respect of any reset period, the day falling three business days prior to the beginning of such reset period. The “Five-year U.S. Treasury Rate” means, as of any reset dividend determination date, as applicable, (i) an interest rate (expressed as a decimal) determined to be the per annum rate equal to the average of the yields to maturity for the five business days immediately prior to such reset dividend determination date for U.S. Treasury securities with a maturity of five years from the next reset date and trading in the public securities markets or (ii) if there is no such published U.S. Treasury security with a maturity of five years from the next reset date and trading in the public securities markets, then the rate will be determined by interpolation between the average of the yields to maturity for the five business days immediately prior to such reset dividend determination date for two series of U.S. Treasury securities trading in the public securities market, (A) one maturing as close as possible to, but earlier than, the reset date following the next succeeding reset dividend determination date, and (B) the other maturity as close as possible to, but later than, the reset date following the next succeeding reset dividend determination date, in each case as published in the most recent H.15 under the caption “Treasury constant maturities.” The Five-year U.S. Treasury Rate will be determined by the calculation agent on the applicable reset dividend determination date. If the Five-year U.S. Treasury Rate cannot be determined pursuant to the methods described in clauses (i) or (ii) above, then the Five-year U.S. Treasury Rate will be the same interest rate determined for the prior reset dividend determination date. “H.15” means the statistical release designated as “H.15 Daily Update,” or any successor publication, published by the Board of Governors of the U.S. Federal Reserve System, and “most recent H.15” means the H.15 published closest in time, but at or prior, to the close of business on the reset dividend determination date. With respect to Series C Preference Shares, “Calculation agent” means the calculation agent appointed by us prior to the First Reset Date, which may be a person or entity affiliated with us.
To the extent declared, dividends on our Series D Preference Shares will be payable in an amount per share equal to 4.875% of the liquidation preference per annum (equivalent to $1,218.75 per share and $1.21875 per Series D Depositary Share per annum).
To the extent declared, to but excluding December 30, 2027 (“Series E First Reset Date”), dividends on our Series E Preference Shares will be payable on a non-cumulative basis, with respect to each dividend period, in an amount per share equal to 7.750% of the liquidation preference per annum (equivalent to $1,937.50 per share and $1.93750 per Series E Depositary Share per annum). Commencing on the Series E First Reset Date, to the extent declared, dividends will be payable on a non-cumulative basis, with respect to each dividend period during each reset period, at a rate per annum equal to the Five-year U.S. Treasury Rate as of the most recent dividend determination date plus 3.962% of the liquidation preference per annum. Each of the applicable defined terms for the Series E Preference Shares is analogous to that which is specified above for the Series C Preference Shares.
Dividends, if so declared, will be payable to holders of record of the Preference Shares as they appear on our books on our register of members at 5:00 p.m. (New York City time) on the applicable record date, which shall be the 15th calendar day before that dividend payment date or such other record date fixed by our board of directors (or a duly authorized committee of the board of directors) that is not more than 60 nor less than 10 days prior to such dividend payment date (each, a “dividend record date”). These dividend record dates will apply regardless of whether a particular dividend record date is a business day and a Bermuda business day. As used herein, “business day” means a day that is a Monday, Tuesday, Wednesday, Thursday or Friday and is not a day on which banking institutions in New York City generally are authorized or obligated by law or executive order to close. As used herein, “Bermuda business day” means any day other than a day on which commercial banks in Bermuda are authorized or obligated by law, executive order or regulation to close.
Exhibit 4.8
A dividend period is the period from and including a dividend payment date to, but excluding, the next dividend payment date. During the fixed rate period with respect to Series A Preference Shares and at all times with respect to the Series B Preference Shares, the Series C Preference Shares, the Series D Preference Shares, and Series E Preference Shares, if any dividend payment date falls on a day that is not a business day and a Bermuda business day, the payment of dividends will be made on the first business day that is also a Bermuda business day following such dividend payment date, without accrual to the actual payment date.
With respect to Series A Preference Shares, during the floating rate period, if any dividend payment date other than a redemption date falls on a day that is not a business day and a Bermuda business day, the dividend payment date will be postponed to the next day that is a business day and is a Bermuda business day and, as a result, the corresponding dividend period shall be extended. If a redemption date falls on a day that is not a business day and a Bermuda business day, the payment of dividends and redemption price will be made on the first business day that is also a Bermuda business day following such redemption date, without accrual to the actual payment date.
During the fixed rate period, with respect to Series A Preference Shares, and at all times, with respect to Series B Preference Shares, the Series C Preference Shares, the Series D Preference Shares, and Series E Preference Shares, dividends payable will be computed on the basis of a 360-day year consisting of twelve 30-day months with respect to a full dividend period, and on the basis of the actual number of days elapsed during the period with respect to a dividend period other than a full dividend period.
With respect to the Series A Preference Shares, during the floating rate period, dividends payable will be computed by multiplying the dividend rate for that dividend period by a fraction, the numerator of which will be the actual number of days elapsed during that dividend period (including the first day of the dividend period and excluding the last day, which is the dividend payment date), and the denominator of which will be 360, and by multiplying the result by the liquidation preference of the Series A Preference Shares.
So long as any Preference Shares of a particular series remain outstanding, unless the full dividend for the last completed dividend period on all outstanding Preference Shares of such series and all outstanding parity shares have been declared and paid (or declared and a sum sufficient for the payment thereof has been set aside):
•no dividend shall be paid or declared on our Class A Common Shares or any other junior securities or any parity shares (except, in the case of the parity shares, on a pro rata basis with each other series of outstanding Preference Shares as described below), other than a dividend payable solely in our Class A Common Shares, other junior securities or (solely in the case of parity shares) other parity shares, as applicable; and
•no Class A Common Shares, other junior securities or parity shares shall be purchased, redeemed or otherwise acquired for consideration by us, directly or indirectly (other than (i) as a result of a reclassification of junior shares for or into other junior securities, or a reclassification of parity shares for or into other parity shares, or the exchange or conversion of one junior share for or into another junior security or the exchange or conversion of one parity share for or into another parity share, (ii) through the use of the proceeds of a substantially contemporaneous sale of junior shares or (solely in the case of parity shares) other parity shares, as applicable, or (iii) as required by or necessary to fulfill the terms of any employment contract, benefit plan or similar arrangement with or for the benefit of one or more employees, directors or consultants).
When dividends are not paid (or declared and a sum sufficient for the payment thereof has been set aside) in full on any dividend payment date (or, in the case of parity shares having dividend payment dates different from the dividend payment dates pertaining to the Preference Shares, on a dividend payment date falling within the related dividend period for the Preference Shares) on the Preference Shares and any parity shares, all dividends declared by our board of directors or a duly authorized committee of the board of directors on the Preference Shares and all such parity shares and payable on such dividend payment date (or, in the case of parity shares having dividend payment dates different from the dividend payment dates pertaining to the Preference Shares, on a dividend payment date falling within the related dividend period for the Preference Shares) shall be declared by the board of directors or such committee of the board of directors pro rata in accordance with the respective aggregate liquidation preferences of the Preference Shares and any parity shares so that the respective amounts of such dividends shall bear the same ratio to each other as all declared but unpaid dividends per
Exhibit 4.8
Preference Share and all parity shares payable on such dividend payment date (or, in the case of parity shares having dividend payment dates different from the dividend payment dates pertaining to the Preference Shares, on a dividend payment date falling within the related dividend period for the Preference Shares) bear to each other.
Dividends on the Preference Shares will not be declared, paid or set aside for payment if we fail to comply, or if such act would cause us to fail to comply, with applicable laws, rules and regulations (including any applicable capital adequacy guidelines established by the “capital regulator”).
Determination of Floating Rate
Beginning on June 30, 2029, dividends on the Series A Preference Shares will be payable on a non-cumulative basis, only when, as and if declared, at a floating annual rate, which is reset quarterly, equal to three-month LIBOR plus 4.253% of the liquidation preference per annum.
The floating rate will be reset quarterly on the first day of each dividend period (each, a “LIBOR reset date”). During the floating rate period, if any LIBOR reset date falls on a day that is not a business day and a Bermuda business day, the LIBOR reset date will be postponed to the next day that is a business day and a Bermuda business day, which will also be the dividend payment date for the preceding dividend period.
“Three-month LIBOR” means, with respect to any LIBOR determination date:
(a)the rate for three-month deposits in U.S. dollars as that rate appears on the Reuters Page LIBOR01 (as described below) as of 11:00 a.m. (London time) on the LIBOR determination date for that floating rate period, unless fewer than two such offered rates so appear;
(b)if fewer than two offered rates appear, or no rate appears, as the case may be, on the LIBOR determination date for that floating rate period on the Reuters Page LIBOR01, the rate calculated by the calculation agent based on two offered quotations after requesting the principal London offices of each of four major reference banks (which will not include our affiliates) in the London interbank market, as selected and identified by us, to provide the calculation agent with offered quotations for deposits in U.S. dollars for the period of three months, commencing on the first day of that floating rate period, to prime banks in the London interbank markets at approximately 11:00 a.m. (London time) on that date and in a principal amount that is representative for a single transaction in U.S. dollars in that market at that time;
(c)if fewer than two offered quotations referred to in clause (b) are provided as requested, the rate calculated by the calculation agent as the arithmetic mean of the rates quoted at approximately 11:00 a.m. (New York City time) on the LIBOR determination date for that floating rate period by three major banks (which will not include our affiliates) in New York City selected and identified by us for loans in U.S. dollars to leading European banks having a three-month maturity and in a principal amount that is representative for a single transaction in U.S. dollars in that market at that time; or
(d)if the banks so selected by the calculation agent are not quoting as mentioned in clause (c), the calculation agent, after consulting such sources as it deems comparable to any of the foregoing quotations or to Reuters Page LIBOR01, or any such source as it deems reasonable from which to estimate three-month LIBOR or any of the foregoing lending rates, shall determine three-month LIBOR for the applicable dividend period in its sole discretion.
Notwithstanding the foregoing clauses (a)—(d), if we or the calculation agent determine that LIBOR has been permanently discontinued, the calculation agent will use, as a substitute for LIBOR and for each future LIBOR determination date, the alternative reference rate (the “Alternative Rate”) selected by a central bank, reserve bank, monetary authority or any similar institution (including any committee or working group thereof) that is consistent with accepted market practice. As part of such substitution, the calculation agent will, after consultation with us, make such adjustments (“Adjustments”) to the Alternative Rate or the spread thereon, as well as the business day convention, LIBOR determination dates and related provisions and definitions, in each case that are consistent with accepted market practice for the use of such Alternative Rate for debt obligations or preferred stock obligations such as the Series A Preference Shares. If the calculation agent determines, in consultation with us, that there is no clear market consensus as to whether any rate has replaced LIBOR in customary market usage, (i) the calculation agent shall have the right to resign as
Exhibit 4.8
calculation agent and (ii) we will appoint, in our sole discretion, a new calculation agent to replace the calculation agent, to determine the Alternative Rate and make any Adjustments thereon, and whose determinations will be binding on us and the holders of the Series A Preference Shares. If, however, the calculation agent determines that LIBOR has been discontinued, but for any reason an Alternative Rate has not been determined, three-month LIBOR determined as of a LIBOR determination date shall be three-month LIBOR in effect on such LIBOR determination date; provided, however, that if this sentence is applicable with respect to the first LIBOR determination date related to the floating rate period, the dividend rate, business day convention and manner of calculating dividends applicable during the fixed rate period will remain in effect during the floating rate period. Note that there can be no assurance that the Alternative Rate and fallbacks described above will be effective at preventing or mitigating disruption as a result of the transition from LIBOR. Please see the section entitled “Risk Factors” located in the Annual Report on Form 10-K of which this Exhibit 4.6 is a part for additional details.
With respect to the Series A Preference Shares, “calculation agent” means the calculation agent appointed by us prior to June 30, 2029, which may be a person or entity affiliated with us.
“LIBOR determination date” means the second London banking day immediately preceding the applicable LIBOR reset date.
“London banking day” means a day on which commercial banks are open for business, including dealings in deposits in
U.S. dollars, in London.
“Reuters Page LIBOR01” means the display so designated on Reuters 3000 Xtra (or any successor service) (or any other page as may replace such page on such service) or such other service as may be nominated by us as the information vendor for the purpose of displaying the London interbank offer rates of major banks for U.S. dollars deposits.
Certain Restrictions on Payment of Dividends
The Companies Act limits our ability to pay dividends and distributions to shareholders. Under Bermuda law, we may not lawfully declare or pay a dividend if we have reasonable grounds for believing that we are, or would after payment of the dividend be, unable to pay our liabilities as they become due, or that the realizable value of our assets would, after payment of the dividend, be less than the aggregate value of our liabilities.
Because we are a holding company and substantially all of our operations are conducted by our main operating subsidiaries, our ability to meet any ongoing cash requirements and to pay dividends will depend on our ability to obtain cash dividends or other cash payments or obtain loans from these subsidiaries.
Payment of Additional Amounts
We will make all payments on the Preference Shares free and clear of and without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any relevant taxing jurisdiction (as defined under “—Optional Redemption—Change in Tax Law”), unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of any relevant taxing jurisdiction or (ii) an official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (including, without limitation, a holding by a court of competent jurisdiction or by a taxing authority in any relevant taxing jurisdiction). If a withholding or deduction at source is required, we will, subject to certain limitations and exceptions described below, pay to the holders of the Preference Shares such additional amounts (the “additional amounts”) as dividends as may be necessary so that every net payment, after such withholding or deduction (including any such withholding or deduction from such additional amounts), will be equal to the amounts we would otherwise have been required to pay had no such withholding or deduction been required.
We will not be required to pay any additional amounts for or on account of:
(a)any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed but for the fact that such holder was a resident, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, the relevant taxing jurisdiction or any political subdivision thereof or otherwise had some connection with the relevant taxing jurisdiction other than by reason of the mere
Exhibit 4.8
ownership of, or receipt of payment under, the Preference Shares or any Preference Shares presented for payment (where presentation is required for payment) more than 30 days after the Relevant Date (except to the extent that the holder would have been entitled to such amounts if it had presented such shares for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any payment, the date on which such payment first becomes due and payable, but if the full amount of the moneys payable has not been received by the dividend disbursing agent on or prior to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the holders of the Preference Shares;
(b)any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge or any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payment of the liquidation preference or of any dividends on the Preference Shares;
(c)any tax, fee, duty, assessment or other governmental charge that is imposed or withheld by reason of the failure by the holder of such Preference Shares to comply with any reasonable request by us addressed to the holder within 90 days of such request (i) to provide information concerning the nationality, residence or identity of the holder or
(ii) to make any declaration or other similar claim or satisfy any information or reporting requirement that is required or imposed by statute, treaty, regulation or administrative practice of the relevant taxing jurisdiction as a precondition to exemption from all or part of such tax, fee, duty, assessment or other governmental charge;
(d)any tax, fee, duty, assessment or governmental charge required to be withheld or deducted under Sections 1471 through 1474 of the Code (or any Treasury Regulations or other administrative guidance thereunder); or
(e)any combination of items (a), (b), (c), and (d).
In addition, we will not pay additional amounts with respect to any payment on the Preference Shares to any holder that is a fiduciary, partnership, limited liability company or other pass-through entity other than the sole beneficial owner of such Preference Shares if such payment would be required by the laws of the relevant taxing jurisdiction to be included in the income for tax purposes of a beneficiary or partner or settlor with respect to such fiduciary or a member of such partnership, limited liability company or other pass-through entity or a beneficial owner to the extent such beneficiary, partner or settlor would not have been entitled to such additional amounts had it been the holder of the Preference Shares.
If there is a substantial probability that we or any entity formed by a consolidation, merger or amalgamation (or similar transaction) involving us or the entity to which we convey, transfer or lease substantially all of our properties and assets (a “successor company”) would become obligated to pay any additional amounts as a result of a change in tax law, we will also have the option to redeem the Preference Shares as described in “—Optional Redemption—Change in Tax Law.”
Liquidation Rights
Upon any voluntary or involuntary liquidation, dissolution or winding-up of the Company, holders of the Preference Shares are entitled to receive out of our assets available for distribution to shareholders, after satisfaction of liabilities to creditors and senior securities, if any, but before any distribution of assets is made to holders of our Class A Common Shares or any other junior securities, a liquidating distribution in the amount of $25,000 per Preference Share (equivalent to $25.00 per Depositary Share) plus declared and unpaid dividends, if any, to the date fixed for distribution.
After payment of the full amount of the distributions to which they are entitled, holders of the Preference Shares will have no right or claim to any of our remaining assets. In any such distribution, if our assets are not sufficient to pay the liquidation preferences in full to all holders of Preference Shares and to the holders of any parity shares, the holders of Preference Shares and all holders of any parity shares will be paid pro rata in accordance with the respective aggregate liquidation preferences of those holders, but only to the extent we have assets available after satisfaction of all liabilities to creditors and holders of senior securities. In any such distribution, the “liquidation preference” of any holder of preference shares means the amount payable to such holder in such distribution (assuming no limitation on assets available for distribution), including any declared but unpaid dividends (and any unpaid, accrued cumulative dividends, whether or not declared, in the case of any holder of shares on which dividends accrue on a cumulative basis). If the liquidation preference has been paid in full to all holders of the Preference Shares and any holders of parity shares, the holders of our junior securities shall be entitled to receive all of our remaining assets according to their respective rights and preferences.
Exhibit 4.8
For purposes of this section, a consolidation, amalgamation, merger, arrangement, reincorporation, de-registration, reconstruction, reorganization or other similar transaction involving the Company or the sale or transfer of all or substantially all of our shares, property or business will not be deemed to constitute a liquidation, dissolution
or winding-up.
Mandatory Redemption
The Preference Shares are not subject to any mandatory redemption, sinking fund, retirement fund, purchase fund or other similar provisions. Holders of the Preference Shares will have no right to require the redemption or repurchase of the Preference Shares.
Optional Redemption
On or After the Applicable Redemption Commencement Date (as Defined Below)
Except as described below under this “Optional Redemption” section, the Series A Preference Shares are not redeemable prior to June 30, 2029, the Series B Preference Shares are not redeemable prior to September 30, 2024, the Series D Preference Shares are not redeemable prior to December 30, 2025, and the Series E Preference Shares are not redeemable prior to December 30, 2027 (each date, as the context requires, the “Applicable Redemption Commencement Date”). On and after the Applicable Redemption Commencement Date, the respective series of Preference Shares will be redeemable at our option, for cash, in whole or from time to time in part, upon not less than 30 days’ (in the case of Series A Preference Shares) and 15 days’ (in the case of Series B Preference Shares, Series D Preference Shares, and Series E Preference Shares) nor more than 60 days’ prior written notice, at a redemption price equal to $25,000 per Preference Share (equivalent to $25.00 per Depositary Share), plus declared and unpaid dividends, if any, to, but excluding, the date of redemption, without interest on such unpaid dividends.
Par Call Redemption
We may redeem the Series C Preference Shares at our option, in whole or in part, from time to time, during any par call period, at a redemption price equal to $25,000 per share (equivalent to $25.00 per Depositary Share), plus the amount of declared and unpaid dividends, if any, without interest on such unpaid dividends. In the event the applicable reset date that is the redemption date is not a business day, the redemption price will be paid on the next business day without any adjustment to the amount of the redemption price paid.
“Par call period” means the period from and including June 30 of each year in which there is a reset date (which is three months prior to the reset date in such year) to and including such reset date.
Voting Event
Each series of Preference Shares is redeemable at our option in whole, but not in part, at any time (i) prior to the Applicable Redemption Commencement Date (in the case of Series A Preference Shares, Series B Preference Shares, Series D Preference Shares, and Series E Preference Shares) or (ii) outside of a par call period (in the case of Series C Preference Shares) upon the time of notice to the common shareholders of a proposal for an amalgamation or any proposal for any other matter that requires, as a result of any changes in Bermuda law, an affirmative vote of the holders of the Preference Shares at the time outstanding, whether voting as a separate series or together with any other series of Preference Shares as a single class, at a redemption price of $26,000 per Preference Share (equivalent to $26.00 per Depositary Share), plus declared and unpaid dividends, if any, to, but excluding, the date of redemption, without accumulation of any undeclared dividend, and without interest.
Capital Disqualification Event
The Preference Shares are redeemable at our option at any time in whole, but not in part, upon not less than 30 days’ (in the case of Series A Preference Shares) or 15 days’ (in the case of Series B Preference Shares, Series C Preference Shares, Series D Preference Shares, and Series E Preference Shares) nor more than 60 days’ prior written notice, at a redemption price of $25,000 per share (equivalent to $25.00 per Depositary Share) plus declared and unpaid dividends, if any, to, but excluding, the date of redemption, without interest on such unpaid dividends, at any time within 90 days following the occurrence of the date on which we have reasonably determined that, as a result of (i) any amendment to, or change in, the laws or regulations of the jurisdiction of our “capital regulator” that is enacted or becomes effective after the initial
Exhibit 4.8
issuance of the Preference Shares; (ii) any proposed amendment to, or change in, those laws or regulations that is announced or becomes effective after the initial issuance of the Preference Shares; or (iii) any official administrative decision or judicial decision or administrative action or other official pronouncement interpreting or applying those laws or regulations that is announced after the initial issuance of the Preference Shares, a “capital disqualification event” (as defined below) has occurred.
As used herein, “capital adequacy regulations” means the solvency margin, capital adequacy regulations or any other regulatory capital rules applicable to us from time to time on an individual or group basis pursuant to the laws of any applicable jurisdiction and which set out the requirements to be satisfied by financial instruments to qualify as solvency margin or additional solvency margin or regulatory capital (or any equivalent terminology employed by the then applicable capital adequacy regulations).
As used herein, a “capital disqualification event” has occurred if the Preference Shares do not qualify, as “Tier 1 Capital” (or a substantially similar concept) for purposes of the capital adequacy rules or regulatory standards of any “capital regulator” to which we are or will be subject; provided that the proposal or adoption of any criterion that is substantially the same as the corresponding criterion in the capital adequacy rules of the Federal Reserve Board applicable to bank holding companies as of the date of the initial issuance of the Preference Shares will not constitute a regulatory capital event.
As used herein, “capital regulator” means any governmental agency, instrumentality or standard-setting organization as may then have group-wide oversight of our regulatory capital.
Change in Tax Law
The Preference Shares are redeemable at our option at any time, in whole, but not in part, upon not less than 30 days’ (in the case of Series A Preference Shares) or 15 days’ (in the case of Series B Preference Shares, Series C Preference Shares, Series D Preference Shares, and Series E Preference Shares) nor more than 60 days’ prior written notice, at a redemption price of $25,000 per share (equivalent to $25.00 per Depositary Share) plus declared and unpaid dividends, if any, to, but excluding, the date of redemption, without interest on such unpaid dividends, if as a result of a change in tax law (as defined below) there is, in our reasonable determination, a substantial probability that we or any successor company would be required to pay any additional amounts on the next succeeding dividend payment date with respect to the Preference Shares and the payment of those additional amounts cannot be avoided by the use of any reasonable measures available to us or any successor company (a “tax event”).
A “change in tax law” that would trigger the provisions of the preceding paragraph would be (i) a change in or amendment to laws, regulations or rulings of any relevant taxing jurisdiction (as defined below), (ii) a change in the official application or interpretation of those laws, regulations or rulings, (iii) any execution of or amendment to any treaty affecting taxation to which any relevant taxing jurisdiction is party or (iv) a decision rendered by a court of competent jurisdiction in any relevant taxing jurisdiction, whether or not such decision was rendered with respect to us, in each case described in (i)-(iv) above occurring after the date of issuance of the applicable series of Preference Shares; provided that in the case of a relevant taxing jurisdiction other than Bermuda in which a successor company is organized, such change in tax law must occur after the date on which we consolidate, merge or amalgamate (or engage in a similar transaction) with the successor company, or convey, transfer or lease substantially all of our properties and assets to the successor company, as applicable.
As used herein, a “relevant taxing jurisdiction” is (i) Bermuda or any political subdivision or governmental authority of or in Bermuda with the power to tax, (ii) any jurisdiction from or through which we or our dividend disbursing agent are making payments on the Preference Shares or any political subdivision or governmental authority of or in that jurisdiction with the power to tax or (iii) any other jurisdiction in which we or a successor company is organized or generally subject to taxation or any political subdivision or governmental authority of or in that jurisdiction with the power to tax.
Prior to any redemption upon a tax event, we will be required to deliver to the transfer agent for the Preference Shares a certificate signed by one of our officers confirming that a tax event has occurred and is continuing (as reasonably determined by us).
Rating Agency Event
Exhibit 4.8
The Preference Shares are redeemable at our option at any time, in whole, but not in part, upon not less than 30 days’ (in the case of Series A Preference Shares) or 15 days’ (in the case of Series B Preference Shares, Series C Preference Shares, Series D Preference Shares, and Series E Preference Shares) nor more than 60 days’ prior written notice, at a redemption price of $25,500 per share (equivalent to $25.50 per Depositary Share) plus declared and unpaid dividends, if any, to, but excluding, the date of redemption, without interest on such unpaid dividends, within 90 days after the occurrence of a rating agency event (as defined below).
As used herein, a “rating agency event” has occurred if any nationally recognized statistical rating organization, as defined in Section 3(a)(62) of the Exchange Act, that then publishes a rating for us (a “rating agency”) amends, clarifies or changes the criteria it uses to assign equity credit to securities such as the Preference Shares, which amendment, clarification or change results in:
•the shortening of the length of time the Preference Shares are assigned a particular level of equity credit by that rating agency as compared to the length of time they would have been assigned that level of equity credit by that rating agency or its predecessor on the initial issuance of the Preference Shares; or
•the lowering of the equity credit (including up to a lesser amount) assigned to the Preference Shares by that rating agency as compared to the equity credit assigned by that rating agency or its predecessor on the initial issuance of the Preference Shares.
Procedures for Redemption
The redemption price for any Preference Shares shall be payable on the redemption date to the holders of such shares against book-entry transfer or surrender of the certificate(s) evidencing such shares to us or our agent. Any declared but unpaid dividends payable on a redemption date that occurs subsequent to the dividend record date for a dividend period shall not be paid to the holder entitled to receive the redemption price on the redemption date, but rather shall be paid to the holder of record of the redeemed shares on such dividend record date relating to the dividend payment date provided in “—Dividends” above.
Prior to delivering any notice of redemption as provided below, we will file with our corporate records a certificate signed by one of our officers affirming our compliance with the redemption provisions under the Companies Act relating to the Preference Shares, and stating that there are reasonable grounds for believing that we are and after the redemption will be, able to pay our liabilities as they become due and that the redemption will not cause us to breach any provision of applicable Bermuda law or regulation.
If any Preference Shares are to be redeemed, the notice of redemption shall be given by first class mail to the holders of record of the Preference Shares to be redeemed, mailed not less than 30 days (in the case of the Series A Preference Shares) or 15 days (in the case of Series B Preference Shares, Series C Preference Shares, Series D Preference Shares, and Series E Preference Shares) nor more than 60 days prior to the date fixed for redemption thereof (provided that, if the Preference Shares are held in book-entry form through DTC, we may give such notice in any manner permitted by DTC). Each notice of redemption will include a statement setting forth:
•the redemption date;
•the number of Preference Shares to be redeemed and, if less than all of the applicable series of Preference Shares are to be redeemed, the number of such Preference Shares to be redeemed from such holder;
•the redemption price; and
•that the shares should be delivered via book-entry transfer or the place or places where holders may surrender certificates evidencing the Preference Shares for payment of the redemption price.
If notice of redemption of any Preference Shares has been given and if the funds necessary for such redemption have been set aside by us for the benefit of the holders of any Preference Shares so called for redemption, then, from and after the redemption date, no further dividends will be declared on such Preference Shares, such Preference Shares shall no longer be deemed outstanding and all rights of the holders of such Preference Shares will terminate, except the right to receive the redemption price, without interest.
Exhibit 4.8
In case of any redemption of only part of a particular series Preference Shares at the time outstanding, the Preference Shares to be redeemed shall be selected either pro rata or by lot.
In addition, if the Preference Shares are treated as “Tier 1 capital” (or a substantially similar concept) under the capital guidelines of a “capital regulator,” any redemption of the Preference Shares may be subject to our receipt of any required prior approval from the “capital regulator” and to the satisfaction of any conditions to our redemption of the Preference Shares set forth in those capital guidelines or any other applicable regulations of the “capital regulator.”
Substitution or Variation
At any time following a tax event or at any time following a capital disqualification event, we may, without the consent of any holders of the applicable series of Preference Shares, vary the terms of such series of Preference Shares such that they remain securities, or exchange such Preference Shares with new securities, which (i) in the case of a tax event, would eliminate the substantial probability that we or any successor company would be required to pay any additional amounts with respect to the applicable series of Preference Shares as a result of a change in tax law or (ii) in the case of a capital disqualification event, for purposes of determining the solvency margin, capital adequacy ratios or any other comparable ratios, regulatory capital resource or level of the Company or any member thereof, where subdivided into tiers, qualify as “Tier 1 capital” (or a substantially similar concept) under the capital guidelines of our “capital regulator.” In either case, the terms of the varied securities or new securities considered in the aggregate cannot be less favorable to holders than the terms of the applicable series of Preference Shares prior to being varied or exchanged; provided that no such variation of terms or securities received in exchange shall change the specified denominations of, dividend payable on, the redemption dates (other than any extension of the period during which an optional redemption may not be exercised by us) or currency of, the applicable series of Preference Shares, reduce the liquidation preference thereof, lower the ranking in right of payment with respect to the payment of dividends or the distribution of assets upon liquidation, dissolution or winding-
up of the applicable series of Preference Shares, or change the foregoing list of items that may not be so amended as part of such substitution or variation. Further, no such variation of terms or securities received in exchange shall impair the right of a holder of the securities to institute suit for the payment of any amounts due (as provided under the Certificates of Designations), but unpaid with respect to such holder’s securities.
Prior to any substitution or variation, we will be required to receive an opinion of independent legal advisers of recognized standing to the effect that holders and beneficial owners (including holders and beneficial owners of Depositary Shares) of the applicable series of Preference Shares (including as holders and beneficial owners of the varied or exchanged securities) will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such substitution or variation and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case had such substitution or variation not occurred.
Any substitution or variation of the Preference Shares described above will be made after notice is given to the holders of the applicable series of Preference Shares not less than 30 days (in the case of the Series A Preference Shares) or 15 days (in the case of Series B Preference Shares, Series C Preference Shares, Series D Preference Shares, and Series E Preference Shares) nor more than 60 days prior to the date fixed for substitution or variation, as applicable.
Voting Rights
Except as provided below or as otherwise from time to time required by law, the holders of the Preference Shares will have no voting rights.
Whenever dividends in respect of any series of Preference Shares shall have not been declared and paid for the equivalent of six or more dividend periods, whether or not for consecutive dividend periods (a “nonpayment event”), the holders of such series of Preference Shares, voting together as a single class with holders of any and all other series of voting preference shares (as defined below) then outstanding, will be entitled to vote for the election of a total of two additional members of the board of directors of the Company (the “preference shares directors”), provided that the election of any such directors shall not cause us to violate the corporate governance requirements of the SEC or the NYSE (or any other exchange on which our securities may be listed or quoted) that listed or quoted companies must have a majority of independent directors. In such case, we will use our best efforts to increase the number of directors constituting the board
Exhibit 4.8
of directors to the extent necessary to effectuate such right and, if necessary, to amend our Bye-laws. Each preference share director will be added to an already existing class of directors.
As used herein, “voting preference shares” means any other class or series of our preference shares ranking equally with the applicable Preference Shares as to dividends and the distribution of assets upon liquidation, dissolution or winding- up of the Company and upon which like voting rights have been conferred and are exercisable, which, as of January 31, 2023 consisted solely of the other class of Preference Shares.
If and when dividends for at least four consecutive dividend periods following a nonpayment event have been paid in full (or declared and a sum sufficient for such payment shall have been set aside), the holders of the applicable series of Preference Shares shall be divested of the foregoing voting rights (subject to revesting in the event of each subsequent nonpayment event) and, if such voting rights for all other holders of voting preference shares have terminated, the term of office of each preference shares director so elected shall terminate and the number of directors on the board of directors of the Company shall automatically decrease by two. In determining whether dividends have been paid for four consecutive dividend periods following a nonpayment event, we may take account of any dividend we elect to pay for such a dividend period after the regular dividend payment date for that period has passed.
Any preference shares director may be removed at any time without cause by the holders of record of a majority of the aggregate voting power, as determined under our Bye-laws, of the applicable series of Preference Shares and any other shares of voting preference shares then outstanding (voting together as a single class) when they have the voting rights described above. So long as a nonpayment event shall continue, any vacancy in the office of a preference shares director (other than prior to the initial election after a nonpayment event) may be filled by the written consent of the preference shares director remaining in office, or if none remain in office, by a vote of the holders of record of a majority of the outstanding applicable series of Preference Shares and any other shares of voting preference shares then outstanding (voting together as a single class) when they have the voting rights described above. Any vote of holders of voting preference shares to remove, or to fill a vacancy in the office of, a preference shares director may be taken only at a special general meeting of such holders, called as provided above for an initial election of preference shares director after a nonpayment event (unless such request is received less than 90 days before the date fixed for the next annual or special meeting of the shareholders of the Company, in which event such election shall be held at such next annual or special general meeting of shareholders). The preference shares directors shall each be entitled to one vote per director on any matter. Each preference shares director elected at any special general meeting of shareholders or by written consent of the other preference shares director shall hold office until the next annual general meeting of the shareholders of the Company if such office shall not have previously terminated as above provided. Holders of the Depositary Shares must act through the depositary to exercise any voting rights in respect of the Preference Shares.
The Companies Act provides the right to vote in respect of an amalgamation or merger for all shares of a Bermuda incorporated company whether or not such shares otherwise carry the right to vote. As a result, the Preference Shares, along with our Class A Common Shares and any other class or series of share capital, would have the right to vote together on an amalgamation or merger if a vote in connection with such a transaction is required under the Companies Act.
All or any of the special rights of the applicable series of Preference Shares may be altered or abrogated with the consent in writing of the holders of not less than three-quarters of the issued Preference Shares of that series or with the sanction of a special resolution approved by at least a majority of the votes cast by the holders of such series of Preference Shares at a separate general meeting in accordance with Section 47(7) of the Companies Act. The necessary quorum requirements for the separate general meeting are two or more persons holding or representing by proxy more than fifty percent (50%) of the aggregate voting power of the applicable series of Preference Shares. Our Bye-laws provide that rights conferred upon the holders of the capital shares of any class (including the Preference Shares) issued with preferred or other rights shall not, unless otherwise expressly provided by the terms of issue of the shares of that class, be deemed to be varied by the creation or issue of further shares ranking pari passu therewith. The Companies Act provides that in certain circumstances, non-voting shares have the right to vote (for example without limitation, converting a limited liability company to unlimited liability company, discontinuance of a company from Bermuda, or a merger or amalgamation pursuant to the Companies Act or conversion of preference shares into redeemable preference shares).
Exhibit 4.8
On any item on which the holders of the applicable series of Preference Shares are entitled to vote, such holders will be entitled to one vote for each Preference Share of that series held, subject to the voting cutbacks described in our bye-laws.
Without the consent of the holders of the applicable series of Preference Shares, so long as such action does not materially and adversely affect the special rights, preferences, privileges and voting powers of such Preference Shares, taken as a whole, our board of directors may, by resolution, amend, alter, supplement or repeal any terms of a particular series of Preference Shares:
•to cure any ambiguity, or to cure, correct or supplement any provision contained in the Certificate of Designations for the applicable series of Preference Shares that may be defective or inconsistent; or
•to make any provision with respect to matters or questions arising with respect to the applicable series of Preference Shares that is not inconsistent with the provisions of the Certificate of Designations;
provided that any such amendment, alteration, supplement or repeal of any terms of such Preference Shares effected in order to conform the terms thereof to the description of the terms of such Preference Shares set forth under “Description of Series A Preference Shares,” “Description of Series B Preference Shares,” “Description of the Series C Preference Shares,” “Description of the Series D Preference Shares,” or “Description of the Series E Preference Shares” in the applicable prospectus supplement distributed in connection with the offering of the respective Preference Shares shall be deemed not to materially and adversely affect the special rights, preferences, privileges and voting powers of the respective Preference Shares, taken as a whole.
The foregoing voting provisions will not apply with respect to a particular series of Preference Shares if, at or prior to the time when the act with respect to which such vote would otherwise be required shall be effected, all outstanding Preference Shares of such series shall have been redeemed or called for redemption upon proper notice and sufficient funds shall have been set aside by us for the benefit of the holders of such series of Preference Shares to effect such redemption.
Conversion
The Preference Shares are not convertible into or exchangeable for any other securities or property of the Company, except under the circumstances set forth under “—Substitution or Variation” above.
Listing of the Preference Shares
We do not intend to list the Preference Shares on any exchange or expect that there will be any separate public trading market for the Preference Shares except as represented by the Depositary Shares, which Depositary Shares are listed on the NYSE under the symbols “ATHPrA” (with respect to the Series A Depositary Shares), “ATHPrB” (with respect to the Series B Depositary Shares), “ATHPrC” (with respect to the Series C Depositary Shares), “ATHPrD” (with respect to the Series D Depositary Shares), and “ATHPrE” (with respect to the Series E Depositary Shares).