As filed with the Securities and Exchange Commission on
December 15, 2010
Registration
No. 333-
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
Form F-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
ASPEN INSURANCE HOLDINGS
LIMITED
(Exact name of Registrant as
specified in its charter)
|
|
|
|
|
Bermuda
|
|
6331
|
|
Not Applicable
|
(State or other jurisdiction
of
incorporation or organisation)
|
|
(Primary Standard
Industrial Classification Code Number)
|
|
(I.R.S. Employer Identification
Number)
|
Maxwell Roberts Building
1 Church Street
Hamilton HM 11
Bermuda
Telephone:
(441) 295-8201
Facsimile:
(441) 295-1829
(Address and telephone number of
Registrants principal executive offices)
CT Corporation System
111 Eighth Avenue
New York, New York 10011
Telephone:
(212) 590-9200
(Name, address and telephone
number of agent for service)
Copies to
|
|
|
Michael Groll, Esq.
Dewey & LeBoeuf LLP
1301 Avenue of Americas
New York, NY
10019-6092
Telephone:
(212) 259-8000
Facsimile:
(212) 259-6333
|
|
Joseph D. Ferraro, Esq.
Dewey & LeBoeuf LLP
No. 1 Minster Court
Mincing Lane
London EC3R 7YL
Telephone: 011-44-207-459-5000
Facsimile: 011-44-207-459-5099
|
Approximate date of commencement of proposed sale to the
public
: From time to time after the effective
date of this registration statement.
If only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box.
o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, check the
following
box.
þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering.
o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering.
o
If this Form is a registration statement pursuant to General
Instruction I.C. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box.
þ
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.C. filed
to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box.
o
CALCULATION
OF REGISTRATION FEE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Proposed Maximum
|
|
|
Proposed Maximum
|
|
|
Amount of
|
Title of Each Class of
|
|
|
Amount to be
|
|
|
Aggregate
|
|
|
Aggregate
|
|
|
Registration
|
Securities to be Registered(1)
|
|
|
Registered(2)
|
|
|
Price Per Unit(2)
|
|
|
Offering Price(2)
|
|
|
Fee(2)
|
Primary Offering:
|
|
|
|
|
|
|
|
|
|
|
|
|
Ordinary Shares(3)
|
|
|
|
|
|
|
|
|
|
|
|
|
Preference Shares(4)
|
|
|
|
|
|
|
|
|
|
|
|
|
Depositary Shares(5)
|
|
|
|
|
|
|
|
|
|
|
|
|
Debt Securities(6)
|
|
|
|
|
|
|
|
|
|
|
|
|
Warrants to Purchase Ordinary shares
|
|
|
|
|
|
|
|
|
|
|
|
|
Warrants to Purchase Preference Shares
|
|
|
|
|
|
|
|
|
|
|
|
|
Warrants to Purchase Debt Securities
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchase Contracts
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchase Units
|
|
|
|
|
|
|
|
|
|
|
|
|
Secondary Offering
|
|
|
|
|
|
|
|
|
|
|
|
|
Ordinary Shares(7)
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
These offered securities may be sold separately, together or as
units with other offered securities.
|
|
(2)
|
An indeterminate aggregate initial offering price or number of
securities of each identified class is being registered as may
from time to time be issued at indeterminate prices. Unless
otherwise indicated in an amendment to this filing, no separate
consideration will be received for ordinary shares, preference
shares or debt securities that are issued by the Company upon
conversion or exchange of debt securities, preference shares or
depositary shares registered hereunder. In accordance with
Rules 456(b) and 457(r) under the Securities Act of 1933,
the Registrant is deferring payment of all of the registration
fee and will pay the registration fee on a pay-as-you-go
basis, except for $561.68 that has already been paid with
respect to aggregate $7,877,700 initial offering price of
securities that were previously registered pursuant to
Registration Statement
No. 333-148245,
and were not sold thereunder. Pursuant to Rule 457(p) under
the Securities Act of 1933, such unutilized filing fee may be
applied to the filing fee payable pursuant to this Registration
Statement.
|
|
(3)
|
Also includes such presently indeterminate number of ordinary
shares as may be issued by the Company (a) upon conversion
of or exchange for any debt securities or preference shares that
provide for conversion or exchange into ordinary shares,
(b) upon exercise of warrants to purchase ordinary shares
or (c) pursuant to purchase contracts.
|
|
(4)
|
Also includes such presently indeterminate number of preference
shares as may be issued by the Company (a) upon conversion
of or exchange for any debt securities that provide for
conversion or exchange into preference shares, (b) upon
exercise of warrants to purchase preference shares or
(c) pursuant to purchase contracts.
|
|
(5)
|
To be represented by depositary receipts representing an
interest in all or a specified portion of an ordinary share or
preference share.
|
|
(6)
|
Debt securities of the Company, which may be senior or
subordinated.
|
|
(7)
|
Ordinary shares of the Company may be sold by selling
shareholders from time to time pursuant to this registration
statement.
|
PROSPECTUS
ASPEN INSURANCE HOLDINGS
LIMITED
Ordinary Shares; Preference
Shares; Depositary Shares Representing Ordinary
Shares or Preference Shares;
Senior or Subordinated Debt Securities; Warrants
to Purchase Ordinary Shares,
Preference Shares or Debt Securities; and
Purchase Contracts and Purchase
Units
Ordinary Shares of Aspen
Insurance Holdings Limited
Offered by the Selling
Shareholders From Time to Time
We may from time to time offer and sell:
|
|
|
|
|
ordinary shares;
|
|
|
|
preference shares;
|
|
|
|
depositary shares representing ordinary shares or preference
shares;
|
|
|
|
senior or subordinated debt securities;
|
|
|
|
warrants to purchase ordinary shares, preference shares or debt
securities; and
|
|
|
|
purchase contracts and purchase units.
|
We will describe in a prospectus supplement, which must
accompany this prospectus, the type and amount of a series of
securities we are offering and selling, as well as the specific
terms of these securities. Such prospectus supplement may also
add, update or change information contained in this prospectus.
You should read this prospectus and any accompanying supplement
carefully before you invest in these securities.
We may offer securities in amounts, at prices and on terms to be
determined at the time of offering. We may sell these securities
directly to you, through agents we select, or through
underwriters and dealers we select. If we use agents,
underwriters or dealers to sell these securities, we will name
them and describe their compensation in a prospectus supplement.
We will provide the specific terms and initial public offering
prices of these securities in supplements to this prospectus.
You should read this prospectus and any supplement carefully
before you invest.
We may sell any combination of these securities in one or more
offerings.
In addition, certain additional selling shareholders
(selling shareholders) may sell our ordinary shares
from time to time pursuant to this prospectus and any
supplements. We will not receive any of the proceeds from the
sale of our ordinary shares by selling shareholders. Any selling
shareholders may be named and additional shares may be added in
supplements to this prospectus.
Our ordinary shares are traded on the New York Stock Exchange
(the NYSE) under the symbol AHL. Other
than for our ordinary shares, there is no market for the other
securities we may offer.
We may sell these securities to or through underwriters and also
to other purchasers or through agents. The names of any
underwriters or agents and the specific terms of a plan of
distribution will be stated in an accompanying prospectus
supplement.
Investing in these securities involves certain
risks. See Risk Factors section starting
on page 1 of this prospectus.
None of the Securities and Exchange Commission, any state
securities commission, the Bermuda Monetary Authority (the
BMA) or the Bermuda Registrar of Companies has
approved or disapproved of these securities or determined if
this prospectus is truthful or complete. Any representation to
the contrary is a criminal offense.
Securities may be offered or sold in Bermuda only in
compliance with the provisions of the Investment Business Act
2003 of Bermuda which regulates the sale of securities in
Bermuda. In addition, the BMA must approve all issuances and
transfers of securities of a Bermuda exempted company, other
than in cases where the BMA has granted a general permission.
The BMA in its policy dated June 1, 2005 provides that
where any equity securities, which would include our ordinary
shares, of a Bermuda company are listed on an appointed stock
exchange (the NYSE is an appointed stock exchange under Bermuda
law), general permission is given for the issue and subsequent
transfer of any equity securities of a company from/or to a
non-resident, for so long as any equity securities of the
company remain so listed. The BMA and the Bermuda Registrar of
Companies accept no responsibility for the financial soundness
of any proposal or for the correctness of any of the statements
made or opinions expressed in this prospectus.
Under the Insurance Act 1978 of Bermuda, as amended, and
related regulations (the Insurance Act) each
shareholder or prospective shareholder will be responsible for
obtaining prior written approval of the BMA of his or her
intention of becoming a controller, directly or indirectly, of
10%, of Aspen Holdings and ultimately Aspen Bermuda. The BMA has
45 days from the date of service of such notice to object
to such person becoming a controller of Aspen Bermuda. The BMA
may serve a notice of objection on any proposed or existing
controller of Aspen Bermuda if it appears to the BMA that the
person is not fit and proper to be such a controller.
This prospectus may not be used to consummate sales of
offered securities unless accompanied by a prospectus
supplement.
The date of this prospectus is
December 15, 2010
TABLE OF
CONTENTS
You should rely only on the information contained in this
prospectus. We have not authorized anyone to provide you with
different information. The prospectus may be used only for the
purposes for which it has been published and no person has been
authorized to give any information not contained herein. If you
receive any other information, you should not rely on it. We are
not, and the initial purchaser is not, making an offer of these
securities in any state where the offer is not permitted.
i
ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement that we have
filed with the Securities and Exchange Commission (the
SEC) using a shelf registration process,
relating to the ordinary shares, preference shares, depositary
shares, debt securities, warrants, purchase contracts and
purchase units described in this prospectus. This means:
|
|
|
|
|
we may issue any combination of securities covered by this
prospectus from time to time, and in the case of a secondary
offering of our ordinary shares, selling shareholders may sell
ordinary shares covered by this prospectus from time to time;
|
|
|
|
we or any selling shareholders, as the case may be, will provide
a prospectus supplement each time these securities are offered
pursuant to this prospectus; and
|
|
|
|
the prospectus supplement will provide specific information
about the terms of that offering and also may add to, update or
change information contained in this prospectus.
|
This prospectus provides you with a general description of the
securities we or any selling shareholder may offer. This
prospectus does not contain all of the information set forth in
the registration statement as permitted by the rules and
regulations of the SEC. For additional information regarding us
and the offered securities, please refer to the registration
statement. Each time we or any selling shareholder sell
securities, we or any selling shareholder will provide a
prospectus supplement that will contain specific information
about the terms of that offering. The prospectus supplement may
also add, update or change information contained in this
prospectus. You should read both this prospectus and any
prospectus supplement together with additional information
described under the heading
Where You Can Find More
Information.
Unless the context otherwise requires, references in this
prospectus to the Company, we,
us or our refer to Aspen Insurance
Holdings Limited (Aspen Holdings) or Aspen Holdings
and its wholly and majority owned subsidiaries Aspen Insurance
UK Limited (Aspen U.K.), Aspen (UK) Holdings Limited
(Aspen U.K. Holdings), Aspen Insurance Limited
(Aspen Bermuda), Aspen Underwriting Limited
(AUL, corporate member of Lloyds Syndicate
4711, Syndicate 4711), Aspen Managing Agency Limited
(AMAL), Aspen Specialty Insurance Company
(Aspen Specialty), Aspen American Insurance Company
(AAIC) and the other direct or indirect subsidiaries
collectively, as the context requires. Aspen U.K., Aspen
Bermuda, Aspen Specialty, AUL, as corporate member of Syndicate
4711, and AAIC are each referred to herein as an Insurance
Subsidiary, and collectively referred to as the
Insurance Subsidiaries.
Any statements in this prospectus concerning the provisions of
any document are not complete. Such references are made to the
copy of that document filed or incorporated or deemed to be
incorporated by reference as an exhibit to the registration
statement of which this prospectus is a part or otherwise filed
with the SEC. Each statement concerning the provisions of any
document is qualified in its entirety by reference to the
document so filed.
ii
RISK
FACTORS
Investing in our securities involves risk. Please see the
Risk Factors described in our Annual Report on
Form 10-K
for our most recent fiscal year, which is incorporated by
reference in this prospectus. Before making an investment
decision, you should carefully consider these risks as well as
other information we include or incorporate by reference in this
prospectus. The risks and uncertainties we have described are
not the only ones facing our company. Additional risks and
uncertainties not presently known to us or that we currently
deem immaterial may also affect our business operations.
Additional risk factors may be included in a prospectus
supplement relating to a particular series or offering of
securities.
FORWARD-LOOKING
STATEMENTS
This prospectus, and the documents incorporated by reference to
this prospectus, may include, and we may from time to time make
other verbal or written, forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, as
amended (the Securities Act), and Section 21B
of the Securities Exchange Act of 1934, as amended, that involve
risks and uncertainties, including statements regarding our
capital needs, business strategy, expectations and intentions.
Statements that use the terms believe, do not
believe, anticipate, expect,
plan, estimate, project,
seek, will, may,
aim, continue, intend,
guidance and similar expressions are intended to
identify forward-looking statements. These statements reflect
our current views with respect to future events and because our
business is subject to numerous risks, uncertainties and other
factors, our actual results could differ materially from those
anticipated in the forward-looking statements. The risks,
uncertainties and other factors set forth under Risk
Factors and other cautionary statements made in this
prospectus and any prospectus supplement should be read and
understood as being applicable to all related forward-looking
statements whenever they appear in this prospectus, any
prospectus supplement and any documents incorporated by
reference.
If one or more risks or uncertainties materialize, or if our
underlying assumptions prove to be incorrect, actual results may
vary materially from what we projected. Any forward-looking
statements you read in this prospectus reflect our current views
with respect to future events and are subject to these and other
risks, uncertainties and assumptions relating to our operations,
results of operations, growth strategy and liquidity. All
subsequent written and oral forward-looking statements
attributable to us or individuals acting on our behalf are
expressly qualified in their entirety by the points made above.
You should specifically consider the factors identified in this
prospectus which could cause actual results to differ before
making an investment decision.
1
GENERAL
DESCRIPTION OF THE OFFERED SECURITIES
Our
Offered Securities
We may from time to time offer under this prospectus, separately
or together issue:
|
|
|
|
|
ordinary shares, which we would expect to list on the NYSE;
|
|
|
|
preference shares, the terms and series of which would be
described in the related prospectus supplement;
|
|
|
|
depositary shares, each representing a fraction of an ordinary
share or a particular series of preference shares, which will be
deposited under a deposit agreement among us, a depositary
selected by us and the holders of the depositary receipts;
|
|
|
|
senior debt securities;
|
|
|
|
subordinated debt securities, which will be subordinated in
right of payment to our senior indebtedness;
|
|
|
|
warrants to purchase ordinary shares and warrants to purchase
preference shares, which will be evidenced by share warrant
certificates and may be issued under a share warrant agreement
independently or together with any other securities offered by
any prospectus supplement and may be attached to or separate
from such other offered securities;
|
|
|
|
warrants to purchase debt securities, which will be evidenced by
debt warrant certificates and may be issued under a debt warrant
agreement independently or together with any other securities
offered by any prospectus supplement and may be attached to or
separate from such other offered securities;
|
|
|
|
purchase contracts obligating holders to purchase from us a
specified number of ordinary shares or preference shares at a
future date or dates; and
|
|
|
|
purchase units, consisting of a purchase contract and, as
security for the holders obligation to purchase ordinary
shares or preference shares under the purchase contract, any of
(1) our debt securities, (2) debt obligations of third
parties, including U.S. Treasury securities, or
(3) our preference shares.
|
We may issue the above securities or other securities from time
to time under this Prospectus or supplements to this prospectus.
Offered
Securities by Selling Shareholders
Selling shareholders may also offer from time to time under this
prospectus our ordinary shares. Any selling shareholders will be
named and additional shares may also be offered in supplements
to this prospectus.
2
RATIO OF
EARNINGS TO FIXED CHARGES AND PREFERENCE SHARE
DIVIDENDS
The following table sets forth our ratio of earnings to fixed
charges and preference share dividends for the years ended
December 31, 2009, 2008, 2007, 2006 and 2005 and the nine
months ended September 30, 2010:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months
|
|
|
|
|
Ended
|
|
|
|
|
September 30,
|
|
Fiscal Year Ended December 31,
|
|
|
2010
|
|
2009
|
|
2008
|
|
2007
|
|
2006
|
|
2005
|
|
Ratio of earnings to fixed charges and preference share
dividends(1)
|
|
|
8.40
|
x
|
|
|
13.07
|
x
|
|
|
3.09
|
x
|
|
|
12.41
|
x
|
|
|
13.69
|
x
|
|
|
|
(2)
|
|
|
|
(1)
|
|
For purposes of computing these ratios, earnings consist of net
income before tax, excluding interest expense. Fixed charges
consist of interest expense, and dividends on our perpetual
PIERS and our perpetual non-cumulative preference shares grossed
up at the effective rate of tax.
|
|
(2)
|
|
The amount of the deficiency in pre-tax income before interest
expenses is $144.2 million for the fiscal year ended
December 31, 2005.
|
3
USE OF
PROCEEDS
Unless the applicable prospectus supplement states otherwise,
the net proceeds from the sale of securities offered by us will
be used for working capital, capital expenditures, acquisitions
and other general corporate purposes. Until we use the net
proceeds in this manner, we may temporarily use them to make
short-term investments or reduce short-term borrowings. We will
not receive any of the proceeds from the sale of our ordinary
shares by selling shareholders.
4
DESCRIPTION
OF SHARE CAPITAL
The following summary of provisions of our bye-laws is qualified
in its entirety by the provisions of the bye-laws which are
incorporated by reference as an exhibit to the registration
statement to which this prospectus relates or which are in
effect at the time of filing of any subsequent prospectus
supplement to this prospectus. In addition, you should review
any such prospectus supplement relating to an issuance or sale
of ordinary shares for the number of authorized shares, the
history of our share capital, a description of the historical
price range of our ordinary shares and any dilutive effect with
respect to the issuance of additional ordinary shares. A more
detailed description of the Investor Options and the employee
options is set forth in our Annual Report on
Form 10-K
for our most recent fiscal year. Any amendment to our
registration statement filed under the Exchange Act on
Form 8-A
on November 25, 2003 with the SEC filed for the purpose of
updating such description is also hereby incorporated by
reference.
The following summary of our share capital is qualified in its
entirety by reference to our memorandum of association and by
our bye-laws which have been incorporated by reference as an
exhibit to the registration statement to which this prospectus
relates, as well as to the shareholders agreement, the
registration rights agreement, the option instrument which have
been described below or which descriptions have been
incorporated by reference.
Ordinary
Shares
In general, subject to the adjustments regarding voting set
forth in
Voting Adjustments
below, holders of our ordinary shares have one vote for each
ordinary share held by them and are entitled to vote, on a
non-cumulative basis, at all meetings of shareholders. Holders
of our ordinary shares are entitled to receive dividends as may
be lawfully declared from time to time by our board of
directors. Holders of our ordinary shares have no redemption,
conversion or sinking fund rights. In the event of our
liquidation, dissolution or
winding-up,
the holders of our ordinary shares are entitled to share equally
and rateably in our assets, if any remain after the payment of
all our debts and liabilities and the liquidation preference of
any outstanding preferred shares.
No prediction can be made as to the effect, if any, future sales
of shares, or the availability of shares for future sales, will
have on the market price of our ordinary shares prevailing from
time to time. The sale of substantial amounts of our ordinary
shares in the public market, or the perception that such sales
could occur, could harm the prevailing market price of our
ordinary shares.
Voting
Adjustments
In general, and except as provided below, shareholders have one
vote for each ordinary share held by them and are entitled to
vote at all meetings of shareholders. However, if, and so long
as, the shares of a shareholder in the Company are treated as
controlled shares (as determined pursuant to
section 958 of the Internal Revenue Code of 1986, as
amended (the Code)) of any U.S. Person and such
controlled shares constitute 9.5% or more of the votes conferred
by the issued shares of Aspen Holdings, the voting rights with
respect to the controlled shares owned by such U.S. Person
shall be limited, in the aggregate, to a voting power of less
than 9.5%, under a formula specified in our bye-laws. The
formula is applied repeatedly until the voting power of all 9.5%
U.S. Shareholders has been reduced to less than 9.5%. In
addition, our board of directors may limit a shareholders
voting rights when it deems it appropriate to do so to
(i) avoid the existence of any 9.5% U.S. Shareholder;
and (ii) avoid certain material adverse tax, legal or
regulatory consequences to the Company or any of its
subsidiaries or any shareholder or its affiliates.
Controlled shares includes, among other things, all
shares of the Company that such U.S. Person is deemed to
own directly, indirectly or constructively (within the meaning
of section 958 of the Code). The amount of any reduction of
votes that occurs by operation of the above limitations will
generally be reallocated proportionately among all other
shareholders of Aspen Holdings whose shares were not
controlled shares of the 9.5% U.S. Shareholder
so long as such: (i) reallocation does not cause any person
to become a 9.5% U.S. Shareholder; and (ii) no portion
of such reallocation shall apply to the shares held by the
Appleby Services (Bermuda) Ltd, formerly Appleby Trust (Bermuda)
Limited (the Names Trustee), except where the
failure to apply such increase would result in any person
becoming a 9.5% shareholder.
Under these provisions, certain shareholders may have their
voting rights limited to less than one vote per share, while
other shareholders may have voting rights in excess of one vote
per share.
5
Moreover, these provisions could have the effect of reducing the
votes of certain shareholders who would not otherwise be subject
to the 9.5% limitation by virtue of their direct share
ownership. Our bye-laws provide that shareholders will be
notified of their voting interests prior to any vote to be taken
by them.
We are authorized to require any shareholder to provide
information as to that shareholders beneficial share
ownership, the names of persons having beneficial ownership of
the shareholders shares, relationships with other
shareholders or any other facts the directors may deem relevant
to a determination of the number of ordinary shares attributable
to any person. If any holder fails to respond to this request or
submits incomplete or inaccurate information, we may, in our
sole discretion, eliminate the shareholders voting rights.
All information provided by the shareholder shall be treated by
the Company as confidential information and shall be used by the
Company solely for the purpose of establishing whether any 9.5%
U.S. Shareholder exists (except as otherwise required by
applicable law or regulation).
Acquisition
of Ordinary Shares by the Company
Under our bye-laws and subject to Bermuda law, we have the
option, but not the obligation, to require a shareholder to sell
to us or a third party at fair market value, as determined in
the good faith discretion of our board of directors, the minimum
number of ordinary shares which is necessary to avoid or cure
any material adverse tax consequences to us, our subsidiaries or
our shareholders or affiliates if our board of directors
unanimously determines that failure to exercise such option
would result in such material adverse tax consequences.
Issuance
of Shares
In accordance with our bye-laws, our board of directors has the
power to issue any unissued shares of the Company, except that
with respect to preference shares having voting rights or powers
together with the holders of any other class of the share
capital of the Company to elect one or more directors of the
Company (other than any mandatory voting rights or powers
required under the Bermuda Companies Act 1981, as amended (the
Companies Act)), our board of directors may only
issue such preference shares if a resolution authorizing such
issuance is approved by a majority of the votes cast at a
meeting of the Companys shareholders.
Non-Voting
Shares
Holders of our non-voting shares have the same rights as the
holders of ordinary shares, except that (unless otherwise
granted a vote pursuant to the provisions of the Companies Act)
they have no right to vote on any matters put before the
shareholders of the Company. Since the completion of our initial
public offering, each non-voting share will automatically
convert, immediately upon issue, into one ordinary share
carrying rights to vote.
Shareholders
Agreement
The Company has entered into an amended and restated
shareholders agreement dated as of September 30, 2003
with all of the shareholders who purchased their shares in our
initial private placement, and certain members of management. Of
these initial shareholders, the Names Trustee is the only
remaining shareholder to which such agreement applies. For
additional detail, please see our Annual Report on
Form 10-K.
Management
and Employee Shareholders Agreements
Certain employees and directors of the Company who were granted
options or who were shareholders prior to our initial public
offering (each, an Employee Shareholder and
collectively, the Employee Shareholders) have
entered into a shareholders agreement with the Company.
Under the agreement, the Employee Shareholders have certain
registration rights under the registration rights agreement
described below, subject to a maximum number of shares to be
registered in connection with any particular offering. The
Employee Shareholders have appointed Christopher OKane as
their representative to act as their attorney and have given
their power of attorney to him to receive notices and other
communications and take decisions and exercise approvals,
consents and other rights, on their behalf, under or in
connection with the registration rights agreement.
6
On May 2, 2007, at a meeting of the Board of Directors of
the Company, the Board approved the amendment of the employee
shareholder agreements by accelerating the termination of
certain share transfer restrictions.
Registration
Rights Agreement
We have entered into an amended and restated registration rights
agreement, dated November 14, 2003, with Blackstone,
Wellington, Candover, Mourant, CSFB Private Equity, Montpelier
Re, the Names Trustee, 3i, Phoenix, Olympus and Lexicon,
pursuant to which we may be required to register our ordinary
shares held by such parties under the Securities Act. At any
time any such shareholder party or group of shareholders (other
than directors, officers or employees of the Company) that holds
in the aggregate $50 million of our shares has the right to
request registration for a public offering of all or a portion
of its shares, subject to the limitations and restrictions
provided in the agreement.
In addition, under certain circumstances, if we propose to
register the sale of any of our securities under the Securities
Act (other than a registration on
Form S-8
or F-4), such parties holding our ordinary shares or other
securities convertible into, exercisable for or exchangeable for
our ordinary shares, will have the right to participate in such
registration, and proportionately in any sale. The filing of the
registration statement to which this prospectus relates
triggered such rights.
Parties to the registration rights agreement who wish to
register their ordinary shares must notify us within
10 days of receipt of our notice that a registration
statement will be filed, though a 20 business day period will
apply for the Names Trustee to allow it additional time to
coordinate with the trusts beneficiaries. If the
registration requested would not be delayed by the extended
period provided to the Names Trustee, then the Names
Trustee will participate in the underwritten offering. If a
delay would occur as a result of the extended period to the
Names Trustee, then the Names Trustee would be
entitled to request a separate registration for sale of ordinary
shares it holds on behalf of the Unaligned Members, for a
non-underwritten direct resale of such shares.
Generally, the registration rights agreement may only be amended
if the amendment is in writing and signed by or on behalf of
shareholders party to the registration rights agreement holding
75% of the number of ordinary shares (or securities exchangeable
or exercisable for or convertible into ordinary shares) that are
considered registrable under the registration rights agreement
(Registrable Securities), provided that any
amendment or variation of the registration rights agreement that
would adversely affect a shareholder party thereto in a
disproportionate manner relative to the other shareholders
parties thereto may not be effected without the consent of such
disproportionately affected shareholder.
Directors, officers and employees of the Company who currently
hold ordinary shares and options are deemed third party
beneficiaries of some of the provisions of the registration
rights agreement. However, these directors, officers and
employees are not entitled to vote in connection with any
amendment or variation of the registration rights agreement,
unless such amendment or variation adversely affects only them
or adversely affects them in a disproportionate manner relative
to the other shareholders parties thereto, in which case the
consent of a majority of the number of Registrable Securities
held by these directors, officers and employees is required.
Bye-laws
In addition to the provisions of our bye-laws described
elsewhere in this prospectus, the following provisions are a
summary of some of the other important provisions of our
bye-laws.
Our Board and Corporate Action.
Our bye-laws
provide that the board shall consist of not less than six and
not more than 15 directors. Subject to our bye-laws and
Bermuda law, the directors shall be elected or appointed by
holders of ordinary shares. Our board of directors is divided
into three classes, designated Class I, Class II and
Class III. Each director shall serve for a term ending on
the date of the third annual general meeting of shareholders
next following the annual general meeting at which such director
was elected. After the expiration of the respective terms of the
initial directors as set forth above, directors of each class
shall be selected by the shareholders and shall serve a term
ending on the date of the third annual general meeting of
shareholders following the annual general meeting at which such
director was selected. Notwithstanding the foregoing, directors
who are 70 years or older shall be elected every year and
shall not be subject to a three-year term. In addition,
notwithstanding the foregoing, each director shall hold office
until such directors successor shall have been duly
elected or until such director is
7
removed from office or such office is otherwise vacated. In the
event of any change in the number of directors, the board of
directors shall apportion any newly created directorships among,
or reduce the number of directorships in, such class or classes
as shall equalize, as nearly as possible, the number of
directors in each class. In no event will a decrease in the
number of directors shorten the term of any incumbent director.
Generally, the affirmative vote of a majority of the directors
present at any meeting at which a quorum is present shall be
required to authorize corporate action. Corporate action may
also be taken by a unanimous written resolution of the board
without a meeting and with no need to give notice, except in the
case of removal of auditors or directors. The quorum necessary
for the transaction of business of the board of directors may be
fixed by the board of directors and, unless so fixed at any
other number, shall be a majority of directors in office from
time to time and in no event less than two directors.
Shareholder Action.
Except as otherwise
required by the Companies Act and our bye-laws, any question
proposed for the consideration of the shareholders at any
general meeting shall be decided by the affirmative vote of a
majority of the voting power of votes cast at such meeting (in
each case, after taking into account voting power adjustments
under the bye-laws). Our bye-laws require 21 days
notice of annual general meetings.
The following actions shall be approved by the affirmative vote
of at least seventy-five percent (75%) of the voting power of
shares entitled to vote at a meeting of shareholders (in each
case, after taking into account voting power adjustments under
the bye-laws): any amendment to Bye-Laws 13 (first
sentence Modification of Rights); 24 (Transfer of
Shares); 49 (Voting); 63, 64, 65 and 66 (Adjustment of Voting
Power); 67 (Other Adjustments of Voting Power), 76 (Purchase of
Shares), 84 or 85 (Certain Subsidiaries); provided, however,
that in the case of any amendments to Bye-Laws 24, 63, 64, 65,
66, 67 or 76, such amendment shall only be subject to this
voting requirement if the board determines in its sole
discretion that such amendment could adversely affect any
shareholder in any non-de minimis respect. The following actions
shall be approved by the affirmative vote of at least sixty-six
percent (66%) of the voting power of shares entitled to vote at
a meeting of shareholders (in each case, after taking into
account voting power adjustments under the bye-laws): (i) a
merger or amalgamation with, or a sale, lease or transfer of all
or substantially all of the assets of the Company to, a third
party, where any shareholder does not have the same right to
receive the same consideration as all other shareholders in such
transaction; or (ii) discontinuance of the Company out of
Bermuda to another jurisdiction; or any amendment to bye-law 50.
Amendment.
Our bye-laws may be revoked or
amended by a majority of the board of directors, but no
revocation or amendment shall be operative unless and until it
is approved at a subsequent general meeting of the Company by
the shareholders by resolution passed by a majority of the
voting power of votes cast at such meeting (in each case, after
taking into account voting power adjustments under the bye-laws)
or such greater majority as required by our bye-laws.
Voting of
Non-U.S. Subsidiary
Shares.
If the voting rights of any shares of the
Company are adjusted and we are required or entitled to vote at
a general meeting of any of Aspen U.K., Aspen U.K. Holdings,
Aspen Bermuda, AUL, AMAL and other of our
non-U.S. subsidiaries.
(together, the
Non-U.S. Subsidiaries),
our directors shall refer the subject matter of the vote to our
shareholders and seek direction from such shareholders as to how
they should vote on the resolution proposed by the
Non-U.S. Subsidiary.
Substantially similar provisions are or will be contained in the
bye-laws (or equivalent governing documents) of the
Non-U.S. Subsidiaries.
Capital Reduction.
In the event of a reduction
of capital, our bye-laws permit such reduction to apply to part
of a class of shares.
Corporate Purpose.
Our certificate of
incorporation and memorandum of association and our bye-laws,
which are incorporated by reference as exhibits to the
registration statement to which this prospectus relates, do not
restrict our corporate purpose and objects.
Perpetual
PIERS
In December 2005, our board of directors authorized the issuance
and sale of up to an aggregate amount of 4,600,000 of our 5.625%
Perpetual PIERS, with a liquidation preference of $50 per
security.
8
Dividends on our Perpetual PIERS are payable on a non-cumulative
basis only when, as and if declared by our board of directors at
the annual rate of 5.625% of the $50 liquidation preference of
each Perpetual PIERS, payable quarterly in cash, or if we elect,
ordinary shares or a combination of cash and ordinary shares.
Generally, unless the full dividends for the most recently ended
dividend period on all outstanding Perpetual PIERS, any
perpetual preference shares issued upon conversion of the
Perpetual PIERS and Perpetual Preference Shares have been
declared and paid, we cannot declare or pay a dividend on our
ordinary shares.
Whenever dividends on any Perpetual PIERS have not been declared
and paid for the equivalent of any six dividend periods, whether
or not consecutive (a nonpayment), subject to
certain conditions, the holders of our Perpetual PIERS will be
entitled to the appointment of two directors, and the number of
directors that comprise our board will be increased by the
number of directors so appointed. These appointing rights and
the terms of the directors so appointed will continue until
dividends on our Perpetual PIERS and any such series of voting
preference shares following the nonpayment shall have been fully
paid for at least four consecutive dividend periods.
Each Perpetual PIERS is convertible, at the holders option
at any time, initially based on a conversion rate of 1.7077
ordinary shares per $50 liquidation preference of Perpetual
PIERS (equivalent to an initial conversion price of
approximately $29.28 per ordinary share), subject to certain
adjustments.
In addition, the affirmative vote or consent of the holders of
at least
66
2
/
3
%
of the aggregate liquidation preference of outstanding Perpetual
PIERS and any series of appointing preference shares, acting
together as a single class, will be required for the
authorization or issuance of any class or series of share
capital (or security convertible into or exchangeable for
shares) ranking senior to our Perpetual PIERS as to dividend
rights or rights upon our liquidation,
winding-up
or dissolution and for amendments to our memorandum of
association or bye-laws that would materially adversely affect
the rights of holders of Perpetual PIERS.
In the event of a liquidation, winding up or dissolution of the
Company, our ordinary shares will rank junior to our Perpetual
PIERS.
Perpetual
Preference Shares
In November 2006, our board of directors authorized the issuance
and sale of up to an aggregate amount of 8,000,000 of our 7.401%
Perpetual Preference Shares, with a liquidation preference of
$25 per security. On March 31, 2009, we repurchased
2,672,500 of our 7.401% $25 liquidation value preference shares
at a price of $12.50 per share.
Dividends on our Perpetual Preference Shares are payable on a
non-cumulative basis only when, as and if declared by our board
of directors at the annual rate of 7.401% of the $25 liquidation
preference of each Perpetual Preference Share, payable quarterly
in cash. Commencing on January 1, 2017, dividends on our
Perpetual Preference Shares will be payable, on a non-cumulative
basis, when, as and if declared by our board of directors, at a
floating annual rate equal to
3-month
LIBOR plus 3.28%. This floating dividend rate will be reset
quarterly. Generally, unless the full dividends for the most
recently ended dividend period on all outstanding Perpetual
Preference Shares, Perpetual PIERS and any perpetual preference
shares issued upon conversion of the Perpetual PIERS have been
declared and paid, we cannot declare or pay a dividend on our
ordinary shares.
Whenever dividends on any Perpetual Preference Shares shall have
not been declared and paid for the equivalent of any six
dividend periods, whether or not consecutive (a
nonpayment), subject to certain conditions, the
holders of our Perpetual Preference Shares, acting together as a
single class with holders of any and all other series of
preference shares having similar appointing rights then
outstanding (including any Perpetual PIERS and any perpetual
preference shares issued upon conversion of the Perpetual
PIERS), will be entitled to the appointment of two directors,
and the number of directors that comprise our board will be
increased by the number of directors so appointed. These
appointing rights and the terms of the directors so appointed
will continue until dividends on our Perpetual Preference Shares
and any such series of voting preference shares following the
nonpayment shall have been fully paid for at least four
consecutive dividend periods.
In addition, the affirmative vote or consent of the holders of
at least
66
2
/
3
%
of the aggregate liquidation preference of outstanding Perpetual
Preference Shares and any series of appointing preference shares
(including any Perpetual PIERS and any perpetual preference
shares issued upon conversion of the Perpetual PIERS), acting
9
together as a single class, will be required for the
authorization or issuance of any class or series of share
capital (or security convertible into or exchangeable for
shares) ranking senior to the Perpetual Preference Shares as to
dividend rights or rights upon our liquidation,
winding-up
or dissolution and for amendments to our memorandum of
association or bye-laws that would materially adversely affect
the rights of holders of Perpetual Preference Shares.
On and after January 1, 2017, we may redeem the Perpetual
Preference Shares at our option, in whole or in part, at a
redemption price equal to $25 per Perpetual Preference Share,
plus any declared and unpaid dividends.
Future
Series of Preference Shares
Subject to certain limitations contained in our bye-laws and any
limitations prescribed by applicable law, our board of directors
is authorized to issue preference shares in one or more series
and to fix the rights, preferences privileges and restrictions
of such shares, including but not limited to dividend rates,
conversion rights, voting rights, terms of redemption (including
sinking fund provisions), redemption prices and liquidation
preferences, and the number of shares constituting and the
designation of any such series, without further vote or action
by our shareholders. Such preference shares, upon issuance
against full consideration (not less than the par value of such
shares), will be fully paid and nonassessable. The particular
rights and preferences of such preference shares offered by any
prospectus supplement and the extent, if any, to which the
general provisions described below may apply to the offered
preference shares, will be described in the prospectus
supplement.
Because the following summary of the terms of preference shares
is not complete, you should refer to our memorandum of
association and bye-laws and any applicable resolution of our
board of directors for complete information regarding the terms
of the class or series of preference shares described in a
prospectus supplement. Whenever we refer to particular sections
or defined terms of our memorandum of association and bye-laws
and an applicable resolution of our board of directors, such
sections or defined terms are incorporated herein by reference.
A prospectus supplement will specify the terms of a particular
class or series of preference shares as follows:
|
|
|
|
|
the number of shares to be issued and sold and the distinctive
designation thereof;
|
|
|
|
the dividend rights of the preference shares, whether dividends
will be cumulative and, if so, from which date or dates and the
relative rights or priority, if any, of payment of dividends on
preference shares and any limitations, restrictions or
conditions on the payment of such dividends;
|
|
|
|
the voting powers, if any, of the preference shares, equal to or
greater than one vote per share, which may include the right to
vote, as a class or with other classes of share capital, to
elect one or more of our directors;
|
|
|
|
the terms and conditions (including the price or prices, which
may vary under different conditions and at different redemption
dates), if any, upon which all or any part of the preference
shares may be redeemed, at whose option such a redemption may
occur, and any limitations, restrictions or conditions on such
redemption;
|
|
|
|
the terms, if any, upon which the preference shares will be
convertible into or exchangeable for our shares of any other
class, classes or series;
|
|
|
|
the relative amounts, and the relative rights or priority, if
any, of payment in respect of preference shares, which the
holders of the preference shares will be entitled to receive
upon our liquidation, dissolution, winding up, amalgamation,
merger or sale of assets;
|
|
|
|
the terms, if any, of any purchase, retirement or sinking fund
to be provided for the preference shares;
|
|
|
|
the restrictions, limitations and conditions, if any, upon the
issuance of our indebtedness so long as any preference shares
are outstanding;
|
|
|
|
any other relative rights, preferences, limitations and powers
not inconsistent with applicable law, our memorandum of
association and bye-laws; and
|
|
|
|
a discussion of certain U.S. federal income tax
considerations.
|
10
Subject to the specification of the above terms of preference
shares and as otherwise provided with respect to a particular
class or series of preference shares, in each case as described
in a supplement to this prospectus, the following general
provisions will apply to each class or series of preference
shares.
Dividends
Except as otherwise set forth in the applicable prospectus
supplement, the holders of preference shares will be entitled to
receive dividends, if any, at such rate established by the board
of directors in accordance with the bye-laws, payable on
specified dates each year for the respective dividend periods
ending on such dates (dividend periods), when and as
declared by our board of directors and subject to Bermuda law
and regulations. Such dividends will accrue on each preference
share from the first day of the dividend period in which such
share is issued or from such other date as our board of
directors may fix for such purpose. All dividends on preference
shares will be cumulative. If we do not pay or set apart for
payment the dividend, or any part thereof, on the issued and
outstanding preference shares for any dividend period, the
deficiency in the dividend on the preference shares must
thereafter be fully paid or declared and set apart for payment
(without interest) before any dividend may be paid or declared
and set apart for payment on the ordinary shares. The holders of
preference shares will not be entitled to participate in any
other or additional earnings or profits of ours, except for such
premiums, if any, as may be payable in case of our liquidation,
dissolution or winding up.
Any dividend paid upon the preference shares at a time when any
accrued dividends for any prior dividend period are delinquent
will be expressly declared to be in whole or partial payment of
the accrued dividends to the extent thereof, beginning with the
earliest dividend period for which dividends are then wholly or
partly delinquent, and will be so designated to each shareholder
to whom payment is made.
No dividends will be paid upon any shares of any class or series
of preference shares for a current dividend period unless there
will have been paid or declared and set apart for payment
dividends required to be paid to the holders of each other class
or series of preference shares for all past dividend periods of
such other class or series. If any dividends are paid on any of
the preference shares with respect to any past dividend period
at any time when less than the total dividends then accumulated
and payable for all past dividend periods on all of the
preference shares then outstanding are to be paid or declared
and set apart for payment, then the dividends being paid will be
paid on each class or series of preference shares in the
proportions that the dividends then accumulated and payable on
each class or series for all past dividend periods bear to the
total dividends then accumulated and payable for all past
dividend periods on all outstanding preference shares.
Our ability to pay dividends depends, in part, on the ability of
our subsidiaries to pay dividends to us. Under Bermuda law, a
company may declare and pay dividends from time to time unless
there are reasonable grounds for believing that the company is
or would, after the declaration or payment, be unable to pay its
liabilities as they become due or that the realizable value of
its assets would thereby be less than the aggregate of its
liabilities and issued share capital and share premium accounts.
In addition, our Insurance Subsidiaries are subject to
significant regulatory restrictions limiting their ability to
declare and pay dividends to us.
Dividends on the preference shares will have a preference over
dividends on the ordinary shares.
Liquidation,
Dissolution or Winding Up
Except as otherwise set forth in the applicable prospectus
supplement, in case of our voluntary or involuntary liquidation,
dissolution or winding up, the holders of each class or series
of preference shares will be entitled to receive out of our
assets in money or moneys worth the liquidation preference
with respect to that class or series of preference shares. These
holders will also receive an amount equal to all accrued but
unpaid dividends thereon (whether or not earned or declared),
before any of our assets will be paid or distributed to holders
of ordinary shares.
It is possible that, in case of our voluntary or involuntary
liquidation, dissolution or winding up, our assets could be
insufficient to pay the holders of all of the classes or series
of preference shares then outstanding the full amounts to which
they may be entitled. In that circumstance, the holders of each
outstanding class or series of preference shares will share
rateably in such assets in proportion to the amounts which would
be payable with respect to such class or series if all amounts
payable thereon were paid in full.
11
Our consolidation, amalgamation or merger with or into any other
company or corporation, or a sale of all or any part of our
assets, will not be deemed to constitute a liquidation,
dissolution or winding up.
Redemption
Except as otherwise provided with respect to a particular class
or series of preference shares and as described in a supplement
to this prospectus, the following general redemption provisions
will apply to each class or series of preference shares. Any
redemption of the preference shares may only be made in
compliance with Bermuda law.
On or prior to the date fixed for redemption of a particular
class or series of preference shares or any part thereof as
specified in the notice of redemption for such class or series,
we will deposit adequate funds for such redemption, in trust for
the account of holders of such class or series, with a bank or
trust company that has an office in the United States, and that
has, or is an affiliate of a bank or trust company that has,
capital and surplus of at least $50 million. If the name
and address of such bank or trust company and the deposit of or
intent to deposit the redemption funds in such trust account
have been stated in the redemption notice, then from and after
the mailing of the notice and the making of such deposit the
shares of the class or series called for redemption will no
longer be deemed to be outstanding for any purpose whatsoever,
and all rights of the holders of such shares in or with respect
to us will cease and terminate except only the right of the
holders of the shares:
|
|
|
|
|
to transfer such shares prior to the date fixed for redemption;
|
|
|
|
to receive the redemption price of such shares, including
accrued but unpaid dividends to the date fixed for redemption,
without interest, upon surrender of the certificate or
certificates representing the shares to be redeemed; and
|
|
|
|
on or before the close of business on the fifth business day
preceding the date fixed for redemption to exercise privileges
of conversion, if any, not previously expired.
|
Any moneys so deposited by us which remain unclaimed by the
holders of the shares called for redemption and not converted
will, at the end of six years after the redemption date, be paid
to us upon our request, after which repayment the holders of the
shares called for redemption can no longer look to such bank or
trust company for the payment of the redemption price but must
look only to us for the payment of any lawful claim for such
moneys which holders of such shares may still have. After such
six-year period, the right of any shareholder or other person to
receive such payment may lapse through limitations imposed in
the manner and with the effect provided under the laws of
Bermuda. Any portion of the moneys so deposited by us, in
respect of preference shares called for redemption that are
converted into ordinary shares, will be repaid to us upon our
request.
In case of redemption of only a part of a class or series of
preference shares, we will designate by lot, in such manner as
our board of directors may determine, the shares to be redeemed,
or will effect such redemption pro rata.
Under Bermuda law, the source of funds that may be used by a
company to pay amounts to shareholders on the redemption of
their shares in respect of the nominal or par value of their
shares is limited to (1) the capital paid up on the shares
being redeemed, (2) funds of the company otherwise
available for payment of dividends or distributions, or
(3) the proceeds of a new issuance of shares made for
purposes of the redemption, and in respect of the premium over
the nominal or par value of their shares, limited to funds
otherwise available for dividends or distributions or out of the
companys share premium account before the redemption date.
Under Section 42 of the Companies Act, no redemption of
shares may be made by a company if, on the date of the
redemption, there are reasonable grounds for believing that the
company is, or after the redemption would be, unable to pay its
liabilities as they become due. In addition, if the redemption
price is to be paid out of funds otherwise available for
dividends or distributions, no redemption may be made if the
realizable value of its assets would thereby be less than the
aggregate of its liabilities and issued share capital and share
premium accounts.
Our ability to effect a redemption of our preference shares may
be subject to the performance of our Insurance Subsidiaries.
Distributions to us from our Insurance Subsidiaries will also be
subject to Bermuda, U.K. and U.S. insurance laws and
regulatory constraints.
12
Conversion
Rights
Except as otherwise provided with respect to a particular class
or series of preference shares and as described in a supplement
to this prospectus, and subject in each case to applicable
Bermuda law, the following general conversion provisions will
apply to each class or series of preference shares that is
convertible into ordinary shares.
All ordinary shares issued upon conversion will be fully paid
and nonassessable, and will be free of all taxes, liens and
charges with respect to the issue thereof except taxes, if any,
payable by reason of issuance in a name other than that of the
holder of the shares converted and except as otherwise provided
by applicable law or the bye-laws.
The number of ordinary shares issuable upon conversion of a
particular class or series of preference shares at any time will
be the quotient obtained by dividing the aggregate conversion
value of the shares of such class or series surrendered for
conversion, by the conversion price per share of ordinary shares
then in effect for such class or series. We will not be
required, however, upon any such conversion, to issue any
fractional share of ordinary shares, but instead we will pay to
the holder who would otherwise be entitled to receive such
fractional share if issued, a sum in cash equal to the value of
such fractional share based on the last reported sale price per
ordinary share on the NYSE at the date of determination.
Preference shares will be deemed to have been converted as of
the close of business on the date of receipt at the office of
the transfer agent of the certificates, duly endorsed, together
with written notice by the holder of his election to convert the
shares.
Except as otherwise provided with respect to a particular class
or series of preference shares and subject in each case to
applicable Bermuda law, our memorandum of association and
bye-laws, the basic conversion price per ordinary share for a
class or series of preference shares, as fixed by our board of
directors, will be subject to adjustment from time to time as
follows:
|
|
|
|
|
In case we (1) pay a dividend or make a distribution to all
holders of outstanding ordinary shares as a class in ordinary
shares, (2) subdivide or split the outstanding ordinary
shares into a larger number of shares or (3) combine the
outstanding ordinary shares into a smaller number of shares, the
basic conversion price per ordinary share in effect immediately
prior to that event will be adjusted retroactively so that the
holder of each outstanding share of each class or series of
preference shares which by its terms is convertible into
ordinary shares will thereafter be entitled to receive upon the
conversion of such share the number of ordinary shares which
that holder would have owned and been entitled to receive after
the happening of any of the events described above had such
share of such class or series been converted immediately prior
to the happening of that event. An adjustment made pursuant to
this clause will become effective retroactively immediately
after such record date in the case of a dividend or distribution
and immediately after the effective date in the case of a
subdivision, split or combination. Such adjustments will be made
successively whenever any event described in this clause occurs.
|
|
|
|
In case we issue to all holders of ordinary shares as a class
any rights or warrants enabling them to subscribe for or
purchase ordinary shares at a price per share less than the
current market price per ordinary share at the record date for
determination of shareholders entitled to receive such rights or
warrants, the basic conversion price per ordinary share in
effect immediately prior thereto for each class or series of
preference shares which by its terms is convertible into
ordinary shares will be adjusted retroactively by multiplying
such basic conversion price by a fraction, of which the
numerator will be the sum of number of ordinary shares
outstanding at such record date and the number of ordinary
shares which the aggregate exercise price (before deduction of
underwriting discounts or commissions and other expenses of the
Company in connection with the issue) of the total number of
shares so offered for subscription or purchase would purchase at
such current market price per share and of which the denominator
will be the sum of the number of ordinary shares outstanding at
such record date and the number of additional ordinary shares so
offered for subscription or purchase. An adjustment made
pursuant to this clause will become effective retroactively
immediately after the record date for determination of
shareholders entitled to receive such rights or warrants. Such
adjustments will be made successively whenever any event
described in this clause occurs.
|
|
|
|
In case we distribute to all holders of ordinary shares as a
class evidences of indebtedness or assets (other than cash
dividends), the basic conversion price per ordinary share in
effect immediately prior thereto for each class or series of
preference shares which by its terms is convertible into
ordinary shares will be
|
13
|
|
|
|
|
adjusted retroactively by multiplying such basic conversion
price by a fraction, of which the numerator will be the
difference between the current market price per ordinary share
at the record date for determination of shareholders entitled to
receive such distribution and the fair value (as determined by
our board of directors) of the portion of the evidences of
indebtedness or assets (other than cash dividends) so
distributed applicable to one ordinary share and of which the
denominator will be the current market price per ordinary share.
An adjustment made pursuant to this clause will become effective
retroactively immediately after such record date. Such
adjustments will be made successively whenever any event
described in this clause occurs.
|
For the purpose of any computation under the last clause above,
the current market price per ordinary share on any date will be
deemed to be the average of the high and low sales prices of the
ordinary shares, as reported on the NYSE Composite
Transactions (or such other principal market quotation as may
then be applicable to the ordinary shares) for each of the 30
consecutive trading days commencing 45 trading days before such
date.
No adjustment will be made in the basic conversion price for any
class or series of preference shares in effect immediately prior
to such computation if the amount of such adjustment would be
less than fifty cents. However, any adjustments which by reason
of the preceding sentence are not required to be made will be
carried forward and taken into account in any subsequent
adjustment. Notwithstanding anything to the contrary, any
adjustment required for purposes of making the computations
described above will be made not later than the earlier of
(1) three years after the effective date described above
for such adjustment or (2) the date as of which such
adjustment would result in an increase or decrease of at least
3% in the aggregate number of ordinary shares issued and
outstanding on the first date on which an event occurred which
required the making of a computation described above. All
calculations will be made to the nearest cent or to the nearest
1/100th of a share, as the case may be.
In the case of any capital reorganization or reclassification of
ordinary shares, or if we amalgamate or consolidate with or
merge into, or sell or dispose of all or substantially all of
our property and assets to, any other company or corporation,
proper provisions will be made as part of the terms of such
capital reorganization, reclassification, amalgamation,
consolidation, merger or sale that any shares of a particular
class or series of preference shares at the time outstanding
will thereafter be convertible into the number of shares of
stock or other securities or property to which a holder of the
number of ordinary shares deliverable upon conversion of such
preference shares would have been entitled upon such capital
reorganization, reclassification, consolidation, amalgamation or
merger.
No dividend adjustment with respect to any preference shares or
ordinary shares will be made in connection with any conversion.
Whenever there is an issue of additional ordinary shares
requiring a change in the conversion price as provided above,
and whenever there occurs any other event which results in a
change in the existing conversion rights of the holders of
shares of a class or series of preference shares, we will file
with our transfer agent or agents, a statement signed by one of
our executive officers, describing specifically such issue of
additional ordinary shares or such other event (and, in the case
of a capital reorganization, reclassification, amalgamation,
consolidation or merger, the terms thereof) and the actual
conversion prices or basis of conversion as changed by such
issue or event and the change, if any, in the securities
issuable upon conversion. Whenever we issue to all holders of
ordinary shares as a class any rights or warrants enabling them
to subscribe for or purchase ordinary shares, we will also file
in like manner a statement describing the same and the
consideration they will receive. The statement so filed will be
open to inspection by any holder of record of shares of any
class or series of preference shares.
Preference shares converted to ordinary shares will cease to
form part of the authorized preference share capital and will,
instead, become part of our authorized and issued ordinary share
capital.
Reissuance
of Shares
Any preference shares retired by purchase, redemption, or
through the operation of any sinking fund or redemption or
purchase account, will have the status of authorized but
unissued preference shares, and may be reissued as part of the
same class or series or may be reclassified and reissued by our
board of directors in the same manner as any other authorized
and unissued shares.
The Company may also purchase preference shares to be held as
treasury shares upon such terms as our board of directors may
determine.
14
Voting
Rights
Except as indicated below or as modified by any prospectus
supplement or as otherwise required by applicable law, the
holders of preference shares will have no voting rights.
The applicable prospectus supplement for a series may provide
that, whenever dividends payable on any class or series of
preference shares are in arrears in an aggregate amount
equivalent to six full quarterly dividends on all of the
preference shares of that class or series then outstanding, the
holders of preference shares of that class or series, together
with the holders of each other class or series of preference
shares ranking on a parity with respect to the payment of
dividends and amounts upon our liquidation, dissolution or
winding up, will have the right, voting together as a single
class regardless of class or series, to elect two directors of
our board of directors. We will use our best efforts to increase
the number of directors constituting our board of directors to
the extent necessary to effectuate such right.
The applicable prospectus supplement for a series may provide
that, whenever such special voting power of such holders of the
preference shares has vested, such right may be exercised
initially either at a special meeting of the holders of
preference shares, or at any annual general meeting of
shareholders, and thereafter at annual general meetings of
shareholders. The right of such holders of preference shares to
elect members of our board of directors will continue until such
time as all dividends accumulated on such preference shares have
been paid in full, at which time that special right will
terminate, subject to revesting in the event of each and every
subsequent default in an aggregate amount equivalent to six full
quarterly dividends and any member of our board of directors
appointed as described above shall vacate office.
At any time when such special voting power has vested in the
holders of any such preference shares as described in the
preceding paragraph, our chairman/chief executive officer will,
upon the written request of the holders of record of at least
10% of such preference shares then outstanding addressed to our
secretary, call a special general meeting of the holders of such
preference shares for the purpose of electing directors. Such
meeting will be held at the earliest practicable date in such
place as may be designated pursuant to the bye-laws (or if there
be no designation, at our principal office in Bermuda). If such
meeting shall not be called by our proper officers within
20 days after our secretary has been personally served with
such request, or within 60 days after mailing the same by
registered or certified mail addressed to our secretary at our
principal office, then the holders of record of at least 10% of
such preference shares then outstanding may designate in writing
a holder to call such meeting at our expense, and such meeting
may be called by such person so designated upon the notice
required for annual general meetings of shareholders and will be
held in Bermuda, unless we otherwise designate.
Any holder of such preference shares so designated will have
access to our register of members for the purpose of causing
meetings of shareholders to be called pursuant to these
provisions. Notwithstanding the foregoing, no such special
meeting will be called during the period within 90 days
immediately preceding the date fixed for the next annual general
meeting of ordinary shareholders.
At any annual or special meeting at which the holders of such
preference shares have the special right, voting separately as a
class, to elect directors as described above, the presence, in
person or by proxy, of the holders of 50% of such preference
shares will be required to constitute a quorum of such
preference shares for the election of any director by the
holders of such preference shares, voting as a class. At any
such meeting or adjournment thereof the absence of a quorum of
such preference shares will not prevent the election of
directors other than those to be elected by such preference
shares, voting as a class, and the absence of a quorum for the
election of such other directors will not prevent the election
of the directors to be elected by such preference shares, voting
as a class.
During any period in which the holders of such preference shares
have the right to vote as a class for directors as described
above, any vacancies in our board of directors will be filled by
vote of a majority of our board of directors pursuant to the
bye-laws. During such period the directors so elected by the
holders of such preference shares will continue in office
(1) until the next succeeding annual general meeting or
until their successors, if any, are elected by such holders and
qualify or (2) unless required by applicable law to
continue in office for a longer period, until termination of the
right of the holders of such preference shares to vote as a
class for directors, if earlier. Immediately upon any
termination of the right of the holders of such preference
shares to vote as a class for directors as provided herein, the
term of office of the directors then in office so elected by the
holders of such preference shares will terminate.
The rights attached to any class of preference shares (unless
otherwise provided by the terms of issue of the shares of that
class) may, whether or not we are being
wound-up,
be
altered or abrogated with the consent in writing of the
15
holders of not less than three-fourths of the issued shares of
that class or with the sanction of a resolution passed by the
holders of not less than three-fourths of the votes cast at a
separate general meeting of the holders of the shares of the
class. The rights conferred upon the holders of the shares of
any class 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 or
having different restrictions. Further, the rights attaching to
any shares shall be deemed not to be altered by the creation or
issue of any share ranking in priority for payment of a dividend
or in respect of capital or which confer on the holder thereof
voting rights more favorable than those conferred by such
ordinary share. In the event we were to merge into or amalgamate
with another company, the approval of the holders of
three-fourths of the issued shares would be required (voting as
a separate class, if affected in a manner that would constitute
a variation of the rights of such preference shares) in addition
to shareholder approval pursuant to the Companies Act. In
addition, holders of preference shares would be entitled to vote
at a court-ordered meeting in respect of a compromise or
arrangement pursuant to section 99 of the Companies Act and
their consent would be required with respect to the waiver of
the requirement to appoint an auditor and to lay audited
financial statements before a general meeting pursuant to
section 88 of the Companies Act.
On any item on which the holders of the preference shares are
entitled to vote, such holders will be entitled to one vote for
each preference share held.
Restrictions
in Event of Default in Dividends on Preference
Shares
Unless we provide otherwise in a prospectus supplement, if at
any time we have failed to pay dividends in full on the
preference shares, thereafter and until dividends in full,
including all accrued and unpaid dividends for all past
quarterly dividend periods on the preference shares outstanding,
shall have been declared and set apart in trust for payment or
paid, or if at any time we have failed to pay in full amounts
payable with respect to any obligations to retire preference
shares, thereafter and until such amounts shall have been paid
in full or set apart in trust for payment:
(1) we may not redeem less than all of the preference
shares at such time outstanding unless we obtain the affirmative
vote or consent of the holders of at least
66
2
/
3
%
of the outstanding preference shares given in person or by
proxy, either in writing or by resolution adopted at a special
meeting called for the purpose, at which the holders of the
preference shares shall vote separately as a class, regardless
of class or series;
(2) we may not purchase any preference shares except in
accordance with a purchase offer made in writing to all holders
of preference shares of all classes or series upon such terms as
our board of directors in its sole discretion after
consideration of the respective annual dividend rate and other
relative rights and preferences of the respective classes or
series, will determine (which determination will be final and
conclusive) will result in fair and equitable treatment among
the respective classes or series; provided that (a) we, to
meet the requirements of any purchase, retirement or sinking
fund provisions with respect to any class or series, may use
shares of such class or series acquired by it prior to such
failure and then held by it as treasury stock and
(b) nothing will prevent us from completing the purchase or
redemption of preference shares for which a purchase contract
was entered into for any purchase, retirement or sinking fund
purposes, or the notice of redemption of which was initially
mailed, prior to such failure; and
(3) we may not redeem, purchase or otherwise acquire, or
permit any subsidiary to purchase or acquire any shares of any
other class of our stock ranking junior to the preference shares
as to dividends and upon liquidation.
Preemptive
Rights
Except as otherwise set forth in the applicable prospectus
supplement, no holder of preference shares, solely by reason of
such holding, has or will have any preemptive right to subscribe
to any additional issue of shares of any class or series or to
any security convertible into such shares.
Differences
in Corporate Law
You should be aware that the Companies Act, which applies to us,
differs in certain material respects from laws generally
applicable to U.S. corporations and their shareholders. In
order to highlight these differences, set forth
16
below is a summary of certain significant provisions of the
Companies Act (including modifications adopted pursuant to our
bye-laws) applicable to us which differ in certain respects from
provisions of the State of Delaware corporate law. Because the
following statements are summaries, they do not address all
aspects of Bermuda law that may be relevant to us and our
shareholders.
Duties of Directors.
Under Bermuda law, at
common law, members of a board of directors owe a fiduciary duty
to the company to act in good faith in their dealings with or on
behalf of the company and exercise their powers and fulfill the
duties of their office honestly. This duty has the following
essential elements:
|
|
|
|
|
a duty to act in good faith in the best interests of the company;
|
|
|
|
a duty not to make a personal profit from opportunities that
arise from the office of director;
|
|
|
|
a duty to avoid conflicts of interest; and
|
|
|
|
a duty to exercise powers for the purpose for which such powers
were intended.
|
The Companies Act imposes a duty on directors and officers of a
Bermuda company:
|
|
|
|
|
to act honestly and in good faith with a view to the best
interests of the company; and
|
|
|
|
to exercise the care, diligence and skill that a reasonably
prudent person would exercise in comparable circumstances.
|
In addition, the Companies Act imposes various duties on
officers of a company with respect to certain matters of
management and administration of the company.
The Companies Act provides that in any proceedings for
negligence, default, breach of duty or breach of trust against
any officer, if it appears to a court that such officer is or
may be liable in respect of negligence, default, breach of duty
or breach of trust, but that he has acted honestly and
reasonably, and that, having regard to all the circumstances of
the case, including those connected with his appointment, he
ought fairly to be excused for the negligence, default, breach
of duty or breach of trust, that court may relieve him, either
wholly or partly, from any liability on such terms as the court
may think fit. This provision has been interpreted to apply only
to actions brought by or on behalf of the company against such
officers. Our bye-laws, however, provide that shareholders waive
all claims or rights of action that they might have,
individually or in the right of the Company, against any
director or officer of Aspen Holdings for any act or failure to
act in the performance of such directors or officers
duties, except this waiver does not extend to any claims or
rights of action that arise out of fraud or dishonesty on the
part of such director or officer or with respect to the recovery
of any gain, personal profit or advantage to which the officer
or director is not legally entitled.
Under Delaware law, the business and affairs of a corporation
are managed by or under the direction of its board of directors.
In exercising their powers, directors are charged with a
fiduciary duty of care to protect the interests of the
corporation and a fiduciary duty of loyalty to act in the best
interests of its stockholders.
The duty of care requires that directors act in an informed and
deliberative manner and inform themselves, prior to making a
business decision, of all material information reasonably
available to them. The duty of care also requires that directors
exercise care in overseeing and investigating the conduct of
corporate employees. The duty of loyalty may be summarized as
the duty to act in good faith, not out of self-interest, and in
a manner which the director reasonably believes to be in the
best interests of the stockholders.
A party challenging the propriety of a decision of a board of
directors bears the burden of rebutting the applicability of the
presumptions afforded to directors by the business
judgment rule. If the presumption is not rebutted, the
business judgment rule attaches to protect the directors and
their decisions, and their business judgments will not be second
guessed. Where, however, the presumption is rebutted, the
directors bear the burden of demonstrating the entire fairness
of the relevant transaction. Notwithstanding the foregoing,
Delaware courts subject directors conduct to enhanced
scrutiny in respect of defensive actions taken in response to a
threat to corporate control and approval of a transaction
resulting in a sale of control of the corporation.
Interested Directors.
Under Bermuda law and
our bye-laws, any transaction entered into by us in which a
director has an interest is not voidable by us nor can such
director be accountable to us for any benefit realized under
17
that transaction provided the nature of the interest is
disclosed at the first opportunity at a meeting of directors, or
in writing to the directors. In addition, our bye-laws allow a
director to be taken into account in determining whether a
quorum is present and to vote on a transaction in which he has
an interest unless the majority of the disinterested directors
determine otherwise. Under Delaware law, such transaction would
not be voidable if (1) the material facts as to such
interested directors relationship or interests are
disclosed or are known to the board of directors and the board
in good faith authorizes the transaction by the affirmative vote
of a majority of the disinterested directors, (2) such
material facts are disclosed or are known to the stockholders
entitled to vote on such transaction and the transaction is
specifically approved in good faith by vote of the majority of
shares entitled to vote thereon or (3) the transaction is
fair as to the corporation as of the time it is authorized,
approved or ratified. Under Delaware law, such interested
director could be held liable for a transaction in which such
director derived an improper personal benefit.
Voting Rights and Quorum Requirements.
Under
Bermuda law, the voting rights of our shareholders are regulated
by our bye-laws and, in certain circumstances, the Companies
Act. Under our bye-laws, at any general meeting, one or more
shareholders holding at least 50% of our shareholders
aggregate voting power in the ordinary shares shall constitute a
quorum for the transaction of business. In general, except for
the removal of the Companys auditors or directors, any
action that we may take by resolution in a general meeting may,
without a meeting, be taken by a resolution in writing signed by
all of the shareholders entitled to attend such meeting and vote
on the resolution. Except as otherwise required by the Companies
Act and our bye-laws; any question proposed for the
consideration of the shareholders at any general meeting shall
be decided by the affirmative votes of a majority of the votes
cast in accordance with the bye-laws.
Dividends.
Bermuda law does not permit payment
of dividends or distributions of contributed surplus by a
company if there are reasonable grounds for believing that the
company, after the payment is made, would be unable to pay its
liabilities as they become due, or the realizable value of the
companys assets would be less, as a result of the payment,
than the aggregate of its liabilities and its issued share
capital and share premium accounts. The excess of the
consideration paid on issue of shares over the aggregate par
value of such shares must (except in certain limited
circumstances) be credited to a share premium account. Share
premium may be distributed in certain limited circumstances, for
example to pay up for unissued shares which may be distributed
to shareholders in proportion to their holdings, but is
otherwise subject to limitation. In addition, Aspen
Bermudas ability to pay dividends or make distributions of
contributed surplus is subject to Bermuda insurance laws and
regulatory constraints.
Under Delaware law, subject to any restrictions contained in the
companys certificate of incorporation, a company may pay
dividends out of surplus or, if there is no surplus, out of net
profits for the fiscal year in which the dividend is declared
and for the preceding fiscal year. Delaware law also provides
that dividends may not be paid out of net profits if, after the
payment of the dividend, capital is less than the capital
represented by the outstanding stock of all classes having a
preference upon the distribution of assets.
Amalgamations, Mergers and Similar
Arrangements.
We may acquire the business of
another Bermuda exempted company or a company incorporated
outside Bermuda when conducting such business would benefit the
Company and would be conducive to attaining our objectives
contained within our memorandum of association. Under our
bye-laws, we may, except in certain circumstances, with the
approval of at least a majority of the voting power of votes
cast (after taking account of any voting power adjustments under
the bye-laws) at a general meeting of our shareholders at which
a quorum is present, amalgamate with another Bermuda company or
with a body incorporated outside Bermuda. In the case of an
amalgamation, a shareholder may apply to a Bermuda court for a
proper valuation of such shareholders shares if such
shareholder is not satisfied that fair market value has been
paid for such shares. The court ordinarily would not disapprove
the transaction on that ground absent evidence of fraud or bad
faith.
Under Delaware law, with certain exceptions, a merger,
consolidation or sale of all or substantially all the assets of
a corporation must be approved by the board of directors and a
majority of the outstanding shares entitled to vote thereon.
Under Delaware law, a shareholder of a corporation participating
in certain major corporate transactions may, under certain
circumstances, be entitled to appraisal rights pursuant to which
such shareholder may receive payment in the amount of the fair
market value of the shares held by such shareholder (as
determined by a court) in lieu of the consideration such
shareholder would otherwise receive in the transaction.
Takeovers.
Bermuda law provides that where an
offer is made for shares of a company and, within four months of
the offer, the holders of not less than 90% of the shares which
are the subject of the offer accept, the
18
offeror may by notice require the non-tendering shareholders to
transfer their shares on the terms of the offer. Dissenting
shareholders may apply to the court within one month of the
notice objecting to the transfer. The burden is on the
dissenting shareholders to show that the court should exercise
its discretion to enjoin the required transfer, which the court
will be unlikely to do unless there is evidence of fraud or bad
faith or collusion between the offeror and the holders of the
shares who have accepted the offer as a means of unfairly
forcing out minority shareholders. Delaware law provides that a
parent corporation, by resolution of its board of directors and
without any stockholder vote, may merge with any subsidiary of
which it owns at least 90% of each class of capital stock. Upon
any merger, dissenting stockholders of the subsidiary would have
appraisal rights.
Certain Transactions with Significant
Shareholders.
As a Bermuda company, we may enter
into certain business transactions with our significant
shareholders, including asset sales, in which a significant
shareholder receives, or could receive, a financial benefit that
is greater than that received, or to be received, by other
shareholders with prior approval from our board of directors but
without obtaining prior approval from our shareholders.
Amalgamations require the approval of the board of directors
and, except for certain amalgamations, a resolution of
shareholders approved by a majority of at least a majority of
the votes cast (after taking account of any voting power
adjustments under our bye-laws). If we were a Delaware
corporation, we would need, subject to certain exceptions, prior
approval from shareholders holding at least two-thirds of our
outstanding ordinary shares not owned by such interested
shareholder to enter into a business combination (which, for
this purpose, includes asset sales of greater than 10% of our
assets that would otherwise be considered transactions in the
ordinary course of business) with an interested shareholder for
a period of three years from the time the person became an
interested shareholder, unless we opted out of the relevant
Delaware statute.
Shareholders Suits.
The rights of
shareholders under Bermuda law are not as extensive as the
rights of shareholders under legislation or judicial precedent
in many U.S. jurisdictions. Class actions and derivative
actions are generally not available to shareholders under the
laws of Bermuda. However, the Bermuda courts ordinarily would be
expected to follow English case law precedent, which would
permit a shareholder to commence an action in our name to remedy
a wrong done to us where the act complained of is alleged to be
beyond our corporate power or is illegal or would result in the
violation of our memorandum of association or bye-laws.
Furthermore, consideration would be given by the court to acts
that are alleged to constitute a fraud against the minority
shareholders or where an act requires the approval of a greater
percentage of our shareholders than actually approved it. The
winning party in such an action generally would be able to
recover a portion of attorneys fees incurred in connection
with such action. Our bye-laws provide that shareholders waive
all claims or rights of action that they might have,
individually or in the right of the Company, against any
director or officer for any action or failure to act in the
performance of such directors or officers duties,
except such waiver shall not extend to claims or rights of
action that arise out of any fraud of such director or officer
or with respect to the recovery of any gain, personal profit or
advantage to which the officer or director is not legally
entitled. Class actions and derivative actions generally are
available to shareholders under Delaware law for, among other
things, breach of fiduciary duty, corporate waste and actions
not taken in accordance with applicable law. In such actions,
the court generally has discretion to permit the winning party
to recover attorneys fees incurred in connection with such
action.
Indemnification of Directors and
Officers.
Under Bermuda law and our bye-laws, we
may indemnify our directors, officers or any other person
appointed to a committee of the board of directors and any
resident representative (and their respective heirs, executors
or administrators) against all liabilities, loss, damage or
expense to the full extent permitted by law, incurred or
suffered by this person by reason of any act done, conceived in
or omitted in the conduct of our business or in the discharge of
his/her
duties; provided that such indemnification shall not extend to
any matter which would render it void under the Companies Act.
Under Delaware law, a corporation may indemnify a director or
officer of the corporation against expenses (including
attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred in defense of an
action, suit or proceeding by reason of such position if
(1) that director or officer acted in good faith and in a
manner he reasonably believed to be in or not opposed to the
best interests of the corporation and (2) with respect to
any criminal action or proceeding, such director or officer had
no reasonable cause to believe his conduct was unlawful.
Inspection of Corporate Records.
Members of
the general public have the right to inspect our public
documents available at the office of the Registrar of Companies
in Bermuda and our registered office in Bermuda, which will
include our memorandum of association (including its objects and
powers) and any alteration to our memorandum of
19
association and documents relating to any increase or reduction
of authorized capital. Our shareholders have the additional
right to inspect our bye-laws, minutes of general meetings and
financial statements, which must be presented to the annual
general meeting of shareholders. The register of our
shareholders is also open to inspection by shareholders without
charge, and to members of the public for a fee. We are required
to maintain our share register in Bermuda but may establish a
branch register outside of Bermuda. We are required to keep at
our registered office a register of our directors and officers
which is open for inspection by members of the public without
charge. Bermuda law does not, however, provide a general right
for shareholders to inspect or obtain copies of any other
corporate records. Delaware law permits any shareholder to
inspect or obtain copies of a corporations shareholder
list and its other books and records for any purpose reasonably
related to such persons interest as a shareholder.
Shareholder Proposals.
Under Bermuda law, the
Companies Act provides that shareholders may, as set forth below
and at their own expense (unless a company otherwise resolves),
require a company to give notice of any resolution that the
shareholders can properly propose at the next annual general
meeting
and/or
to
circulate a statement prepared by the requesting shareholders in
respect of any matter referred to in a proposed resolution or
any business to be conducted at a general meeting. The number of
shareholders necessary for such a requisition is either that
number of shareholders representing at least 5% of the total
voting rights of all shareholders having a right to vote at the
meeting to which the requisition relates or not less than
100 shareholders. Under Delaware law, a corporations
bye-laws may provide that if the corporation solicits proxies
with respect to an election of directors, it may be required, to
the extent and subject to such procedures or conditions as may
be provided in the bye-laws, to include in its proxy
solicitation materials, in addition to individuals nominated by
the board of directors, 1 or more individuals nominated by a
shareholder. Furthermore, the corporations bye-laws may
provide for the reimbursement by the corporation of expenses
incurred by a shareholder in soliciting proxies in connection
with an election of directors, subject to certain procedures and
conditions. Delaware law does not have a provision regarding the
manner in which other business may be brought before a meeting.
Calling of Special Shareholders
Meetings.
Under Bermuda law a special meeting may
also be called by the shareholders when requisitioned by the
holders of at least 10% of the paid up voting share capital of
Aspen Holdings as provided by the Companies Act. Delaware law
permits the board of directors or any person who is authorized
under a corporations certificate of incorporation or
bye-laws to call a special meeting of shareholders.
Staggered Board of Directors.
Bermuda law does
not contain statutory provisions specifically requiring
staggered board of directors arrangements for a Bermuda exempted
company. These provisions, however, may validly be provided for
in the bye-laws governing the affairs of a company and our
bye-laws do so provide. Similarly, Delaware law permits
corporations to have a staggered board of directors.
Approval of Corporate Matters by Written
Consent.
Under Bermuda law and our bye-laws, the
Companies Act provides that shareholders may take action by
resolution in writing signed by the members of the company who
at the date of the notice of the resolutions writing represent
such majority of votes as would be required if the resolution
had been voted on at a meeting of the members or all the members
or such majority of members as may be provided for by the
bye-laws of the company. Delaware law permits shareholders to
take action by the consent in writing by the holders of
outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action
at a meeting of stockholders at which all shares entitled to
vote thereon were present and voted.
Amendment of Memorandum of
Association.
Bermuda law provides that the
memorandum of association of a company may be amended by a
resolution passed at a general meeting of shareholders of which
due notice has been given. An amendment to the memorandum of
association that alters the companys business objects may
require approval of the Bermuda Minister of Finance, who may
grant or withhold approval at his or her discretion.
Under Bermuda law, the holders of an aggregate of not less than
20% in par value of a companys issued share capital have
the right to apply to the Bermuda courts for an annulment of any
amendment of the memorandum of association adopted by
shareholders at any general meeting, other than an amendment
which alters or reduces a companys share capital as
provided in the Companies Act. Where such an application is
made, the amendment becomes effective only to the extent that it
is confirmed by the Bermuda court. An application for an
annulment of an amendment of the memorandum of association must
be made within 21 days after the date on which the
resolution altering the companys memorandum of association
is passed and may be made on behalf of persons
20
entitled to make the application by one or more of their
designees as such holders may appoint in writing for such
purpose. No application may be made by the shareholders voting
in favor of the amendment.
Under Delaware law, amendment of the certificate of
incorporation, which is the equivalent of a memorandum of
association, of a company must be made by a resolution of the
board of directors setting forth the amendment, declaring its
advisability, and either calling a special meeting of the
shareholders entitled to vote or directing that the amendment
proposed be considered at the next annual meeting of the
shareholders. Delaware law requires that, unless a different
percentage is provided for in the certificate of incorporation,
a majority of the outstanding shares entitled to vote thereon is
required to approve the amendment of the certificate of
incorporation at the shareholders meeting. If the amendment
would alter the number of authorized shares or par value or
otherwise adversely affect the rights or preference of any class
of a companys stock, the holders of the outstanding shares
of such affected class, regardless of whether such holders are
entitled to vote by the certificate of incorporation, should be
entitled to vote as a class upon the proposed amendment.
However, the number of authorized shares of any class may be
increased or decreased, to the extent not falling below the
number of shares then outstanding, by the affirmative vote of
the holders of a majority of the stock entitled to vote, if so
provided in the companys certificate of incorporation or
any amendment that created such class or was adopted prior to
the issuance of such class or that was authorized by the
affirmative vote of the holders of a majority of such class or
classes of stock.
Amendment of Bye-laws.
Our bye-laws may be
revoked or amended by the board of directors, which may from
time to time revoke or amend them in any way by a resolution of
the board of directors passed by a majority of the directors
then in office and eligible to vote on the resolution, but no
revocation or amendment shall be operative unless and until it
is approved at a subsequent general meeting of the Company by
the shareholders by resolution passed by a majority of the
voting power of votes cast at such meeting (in each case, after
taking into account voting power adjustments under the bye-laws)
or such greater majority as required by bye-laws.
Under Delaware law, holders of a majority of the voting power of
a corporation and, if so provided in the certificate of
incorporation, the directors of the corporation, have the power
to adopt, amend and repeal the bylaws of a corporation.
Listing
Our ordinary shares are listed on the NYSE under the trading
symbol AHL.
Transfer
Agent, Registrar and Dividend Disbursing Agent
The transfer agent, registrar and dividend disbursing agent for
the ordinary shares is BNY Mellon Shareowner Services.
21
DESCRIPTION
OF THE DEPOSITARY SHARES
General
We may, at our option, elect to offer depositary shares, each
representing a fraction (to be set forth in the prospectus
supplement relating to our ordinary shares or a particular
series of preference shares) of an ordinary share or a fraction
of a share of a particular class or series of preference shares
as described below. In the event we elect to do so, depositary
receipts evidencing depositary shares will be issued to the
public.
The ordinary shares or the shares of the class or series of
preference shares represented by depositary shares will be
deposited under a deposit agreement among us, a depositary
selected by us and the holders of the depositary receipts. The
depositary will 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. Subject to the terms of
the deposit agreement, each owner of a depositary share will be
entitled, in proportion to the applicable fraction of an
ordinary share or preference share represented by such
depositary share, to all the rights and preferences of the
ordinary shares or preference shares represented thereby
(including dividend, voting, redemption and liquidation rights).
The depositary shares will be evidenced by depositary receipts
issued pursuant to the deposit agreement. Depositary receipts
will be distributed to those persons purchasing the fractional
ordinary shares or fractional shares of the applicable class or
series of preference shares in accordance with the terms of the
offering described in the related prospectus supplement. If
necessary, the deposit agreement and depositary receipt will be
incorporated by reference pursuant to a Current Report on
Form 8-K.
Pending the preparation of definitive depositary receipts, the
depositary may, upon our written order, issue temporary
depositary receipts substantially identical to (and entitling
the holders thereof to all the rights pertaining to) the
definitive depositary receipts but not in definitive form.
Definitive depositary receipts will be prepared thereafter
without unreasonable delay, and temporary depositary receipts
will be exchangeable for definitive depositary receipts without
charge to the holder thereof.
The following description of the depositary shares sets forth
the material terms and provisions of the depositary shares to
which any prospectus supplement may relate. The particular terms
of the depositary shares offered by any prospectus supplement,
and the extent to which the general provisions described below
may apply to the offered securities, will be described in the
prospectus supplement, which will also include a discussion of
certain U.S. federal income tax considerations.
Dividends
and Other Distributions
Except as otherwise set forth in the applicable prospectus
supplement, the depositary will distribute all cash dividends or
other distributions received in respect of the related ordinary
shares or preference shares to the record holders of depositary
shares relating to such ordinary shares or preference shares in
proportion to the number of such depositary shares owned by such
holders.
In the event of a distribution other than in cash, the
depositary will distribute property received by it to the record
holders of depositary shares entitled thereto, unless the
depositary determines that it is not feasible to make such
distribution, in which case the depositary may, with our
approval, sell such property and distribute the net proceeds
from the sale to such holders.
Withdrawal
of Shares
Except as otherwise set forth in the applicable prospectus
supplement, upon surrender of the depositary receipts at the
corporate trust office of the depositary (unless the related
depositary shares have previously been called for redemption),
the holder of the depositary shares evidenced thereby is
entitled to delivery of the number of whole shares of the
related ordinary shares or class or series of preference shares
and any money or other property represented by such depositary
shares. Holders of depositary shares will be entitled to receive
whole shares of the related ordinary shares or class or series
of preference shares on the basis set forth in the prospectus
supplement for such ordinary shares or class or series of
preference shares, but holders of such whole ordinary shares or
preference shares will not thereafter be entitled to exchange
them for depositary shares. If the depositary receipts delivered
by the holder evidence a number of depositary shares in excess
of the number of depositary shares representing the
22
number of whole ordinary shares or preference shares to be
withdrawn, the depositary will deliver to such holder at the
same time a new depositary receipt evidencing such excess number
of depositary shares. In no event will fractional ordinary
shares or preference shares be delivered upon surrender of
depositary receipts to the depositary.
Redemption
of Depositary Shares
Except as otherwise set forth in the applicable prospectus
supplement, whenever we redeem ordinary shares or preference
shares held by the depositary, the depositary will redeem as of
the same redemption date the number of depositary shares
representing ordinary shares or shares of the related class or
series of preference shares so redeemed. The redemption price
per depositary share will be equal to the applicable fraction of
the redemption price per share payable with respect to such
ordinary shares or class or series of preference shares. If less
than all the depositary shares are to be redeemed, the
depositary shares to be redeemed will be selected by lot or pro
rata as may be determined by the depositary.
Voting
the Ordinary Shares or Preference Shares
Except as otherwise set forth in the applicable prospectus
supplement, upon receipt of notice of any meeting at which the
holders of ordinary shares or preference shares are entitled to
vote, the depositary will mail the information contained in such
notice of meeting to the record holders of the depositary shares
relating to such ordinary shares or preference shares. Each
record holder of such depositary shares on the record date
(which will be the same date as the record date for ordinary
shares or preference shares, as applicable) will be entitled to
instruct the depositary as to the exercise of the voting rights
pertaining to the amount of ordinary shares or preference shares
represented by such holders depositary shares. The
depositary will endeavor, insofar as practicable, to vote the
number of the ordinary shares or preference shares represented
by such depositary shares in accordance with such instructions,
and we will agree to take all action which the depositary deems
necessary in order to enable the depositary to do so. The
depositary will vote all ordinary shares or preference shares
held by it proportionately with instructions received if it does
not receive specific instructions from the holders of depositary
shares representing such ordinary shares or preference shares.
Amendment
and Termination of the Deposit Agreement
Except as otherwise set forth in the applicable prospectus
supplement, the form of depositary receipt evidencing the
depositary shares and any provision of the deposit agreement may
at any time be amended by agreement between us and the
depositary. However, any amendment which materially and
adversely alters the rights of the holders of depositary
receipts will not be effective unless such amendment has been
approved by the holders of depositary receipts representing at
least a majority (or, in the case of amendments relating to or
affecting rights to receive dividends or distributions or voting
or redemption rights,
66
2
/
3
%,
unless otherwise provided in the related prospectus supplement)
of the depositary shares then outstanding. The deposit agreement
may be terminated by us or the depositary only if (1) all
outstanding depositary shares have been redeemed, (2) there
has been a final distribution in respect of the ordinary shares
or the preference shares in connection with our liquidation,
dissolution or winding up and such distribution has been
distributed to the holders of depositary receipts or
(3) upon the consent of holders of depositary receipts
representing not less than
66
2
/
3
%
of the depositary shares outstanding, unless otherwise provided
in the related prospectus supplement.
Charges
of Depositary
Except as otherwise set forth in the applicable prospectus
supplement, we will pay all transfer and other taxes and
governmental charges arising solely from the existence of the
depositary arrangements. We will also pay charges of the
depositary in connection with the initial deposit of the related
ordinary shares or preference shares and any redemption of such
ordinary shares or preference shares. Holders of depositary
receipts will pay all other transfer and other taxes and
governmental charges and such other charges as are expressly
provided in the deposit agreement to be for their accounts.
23
The depositary may refuse to effect any transfer of a depositary
receipt or any withdrawal of ordinary shares or preference
shares evidenced thereby until all such taxes and charges with
respect to such depositary receipt or such ordinary shares or
preference shares are paid by the holders thereof.
Miscellaneous
The depositary will forward all reports and communications from
us which are delivered to the depositary and which we are
required to furnish to the holders of ordinary shares or
preference shares.
Neither we nor the depositary will be liable if either of us is
prevented or delayed by law or any circumstance beyond our
control in performing our obligations under the deposit
agreement. Our obligations and the obligations of the depositary
under the deposit agreement will be limited to performance in
good faith of their duties thereunder and neither we nor the
depositary will be obligated to prosecute or defend any legal
proceeding in respect of any depositary shares or class or
series of preference shares unless satisfactory indemnity is
furnished. We and the depositary may rely on 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.
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. Any such resignation or removal of the depositary
will take effect upon the appointment of a successor depositary,
which 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.
24
DESCRIPTION
OF THE DEBT SECURITIES
The following description of our debt securities sets forth the
material terms and provisions of the debt securities to which
any prospectus supplement may relate and may be amended or
supplemented by terms described in the applicable prospectus
supplement. The following description is subject to, and is
qualified in its entirety by reference to, the indenture for
senior unsecured securities (the senior indenture)
and the subordinated indenture for subordinated securities (the
subordinated indenture) each entered into or to be
entered into between the Company, as issuer, and Deutsche Bank
Trust Company Americas, as trustee (the
trustee). Our senior debt securities are to be
issued under an indenture between us and Deutsche Bank
Trust Company Americas, as trustee, dated August 16,
2004, as it may be supplemented or amended from time to time.
Our subordinated debt securities are to be issued under a
subordinated indenture between us and Deutsche Bank
Trust Company Americas, as trustee, the form of which is
filed as an exhibit to the registration statement of which this
prospectus forms a part. The senior indenture and the
subordinated indenture are sometimes referred to herein
collectively as the indentures and each individually
as an indenture, and the trustees under each of the
indentures are sometimes referred to herein collectively as the
trustees and each individually as a
trustee. The particular terms of the series of debt
securities offered by any prospectus supplement, and the extent
to which general provisions described below may apply to the
offered series of debt securities, will be described in the
prospectus supplement.
The following summaries of the material terms and provisions of
the indentures and the related debt securities are not complete
and are subject to, and are qualified in their entirety by
reference to, all provisions of the indentures, including the
definitions of certain terms in the indentures and those terms
to be made a part of the indentures by the Trust Indenture
Act of 1939, as amended. Wherever we refer to particular
articles, sections or defined terms of an indenture, without
specific reference to an indenture, those articles, sections or
defined terms are contained in all indentures. The senior
indenture and the subordinated indenture are substantially
identical, except for certain covenants of ours and provisions
relating to subordination.
General
The following description of the terms of the indentures and the
related debt securities is a summary. We have summarized only
those portions of the indentures and the debt securities which
we believe will be most important to your decision to hold the
debt securities. You should keep in mind, however, that it is
the indentures and not this summary that defines your rights as
a holder of the debt securities. You may obtain a copy of the
indentures by requesting one from us or the trustee.
In this description, references to we,
us and our are to Aspen Holdings only,
and do not include any of our subsidiaries. Certain capitalized
terms used herein are defined in the indentures.
The indentures do not limit the aggregate principal amount of
the debt securities which we may issue under them and provide
that we may issue debt securities under them from time to time
in one or more series. The indentures do not limit the amount of
other indebtedness or the debt securities which we or our
subsidiaries may issue.
The prospectus supplement relating to a particular series of
debt securities offered thereby will describe the following
terms of the offered series of debt securities, as applicable:
|
|
|
|
|
the title of such debt securities and the series in which such
debt securities will be included, which may include medium-term
notes, the aggregate principal amount of such debt securities
and any limit upon such principal amount;
|
|
|
|
the date or dates, or the method or methods, if any, by which
such date or dates will be determined, on which the principal of
such series of debt securities will be payable;
|
|
|
|
the rate or rates at which such series of debt securities will
bear interest, if any, which rate may be zero in the case of
certain debt securities issued at an issue price representing a
discount from the principal amount payable at maturity, or the
method by which such rate or rates will be determined
(including, if applicable, any remarketing option or similar
method), and the date or dates from which such interest, if any,
will accrue or the method by which such date or dates will be
determined;
|
25
|
|
|
|
|
the date or dates on which interest, if any, on such series of
debt securities will be payable and any regular record dates
applicable to the date or dates on which interest will be so
payable;
|
|
|
|
the place or places where the principal of, any premium or
interest on or any additional amounts with respect to such
series of debt securities will be payable, any of such series of
debt securities that are issued in registered form may be
surrendered for registration of transfer or exchange, and any
such debt securities may be surrendered for conversion or
exchange;
|
|
|
|
whether any of such series of debt securities are to be
redeemable at our option and, if so, the date or dates on which,
the period or periods within which, the price or prices at which
and the other terms and conditions upon which such series of
debt securities may be redeemed, in whole or in part, at our
option;
|
|
|
|
whether we will be obligated to redeem or purchase any of such
series of debt securities pursuant to any sinking fund or
analogous provision or at the option of any holder thereof and,
if so, the date or dates on which, the period or periods within
which, the price or prices at which and the other terms and
conditions upon which such debt securities will be redeemed or
purchased, in whole or in part, pursuant to such obligation, and
any provisions for the remarketing of such series of debt
securities so redeemed or purchased;
|
|
|
|
if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any series of debt
securities to be issued in registered form will be issuable and,
if other than a denomination of $5,000, the denominations in
which any debt securities to be issued in bearer form will be
issuable;
|
|
|
|
whether the series of debt securities will be listed on any
national securities exchange;
|
|
|
|
whether the series of debt securities will be convertible into
ordinary shares
and/or
exchangeable for other securities issued by us, and, if so, the
terms and conditions upon which such series of debt securities
will be so convertible or exchangeable;
|
|
|
|
if other than the principal amount, the portion of the principal
amount (or the method by which such portion will be determined)
of such series of debt securities that will be payable upon
declaration of acceleration of the maturity thereof;
|
|
|
|
if other than United States dollars, the currency of payment,
including composite currencies, of the principal of, any premium
or interest on or any additional amounts with respect to any of
such series of debt securities;
|
|
|
|
whether the principal of, any premium or interest on or any
additional amounts with respect to such series of debt
securities will be payable, at our election or the election of a
holder, in a currency other than that in which such series of
debt securities are stated to be payable and the date or dates
on which, the period or periods within which, and the other
terms and conditions upon which, such election may be made;
|
|
|
|
any index, formula or other method used to determine the amount
of payments of principal of, any premium or interest on or any
additional amounts with respect to such series of debt
securities;
|
|
|
|
whether such series of debt securities are to be issued in the
form of one or more global securities and, if so, the identity
of the depositary for such global security or securities;
|
|
|
|
whether such series of debt securities are the senior debt
securities or subordinated debt securities and, if the
subordinated debt securities, the specific subordination
provisions applicable thereto;
|
|
|
|
in the case of subordinated debt securities, the relative
degree, if any, to which such series of subordinated debt
securities of the series will be senior to or be subordinated to
other series of the subordinated debt securities or other
indebtedness of ours in right of payment, whether such other
series of the subordinated debt securities or other indebtedness
are outstanding or not;
|
|
|
|
in the case of subordinated debt securities, any limitation on
the issuance of additional Senior Indebtedness;
|
|
|
|
any deletions from, modifications of or additions to the Events
of Default or covenants of ours with respect to such series of
debt securities;
|
26
|
|
|
|
|
whether the provisions described below under Discharge,
Defeasance and Covenant Defeasance will be applicable to
such series of debt securities;
|
|
|
|
a discussion of certain U.S. federal income tax
considerations;
|
|
|
|
whether any of such series of debt securities are to be issued
upon the exercise of warrants, and the time, manner and place
for such debt securities to be authenticated and
delivered; and
|
|
|
|
any other terms of such series of debt securities and any other
deletions from or modifications or additions to the applicable
indenture in respect of such debt securities.
|
We will have the ability under the indentures to
reopen a previously issued series of debt securities
and issue additional debt securities of that series or establish
additional terms of that series. We are also permitted to issue
debt securities with the same terms as previously issued debt
securities.
Unless otherwise provided in the related prospectus supplement,
principal, premium, interest and additional amounts, if any,
with respect to any series of debt securities will be payable at
the office or agency maintained by us for such purposes
(initially the corporate trust office of the trustee). In the
case of debt securities issued in registered form, interest may
be paid by check mailed to the persons entitled thereto at their
addresses appearing on the security register or by transfer to
an account maintained by the payee with a bank located in the
United States. Interest on debt securities issued in registered
form will be payable on any interest payment date to the persons
in whose names the debt securities are registered at the close
of business on the regular record date with respect to such
interest payment date. Interest on such debt securities which
have a redemption date after a regular record date, and on or
before the following interest payment date, will also be payable
to the persons in whose names the debt securities are so
registered. All paying agents initially designated by us for the
debt securities will be named in the related prospectus
supplement. We may at any time designate additional paying
agents or rescind the designation of any paying agent or approve
a change in the office through which any paying agent acts,
except that we will be required to maintain a paying agent in
each place where the principal of, any premium or interest on or
any additional amounts with respect to the debt securities are
payable.
Unless otherwise provided in the related prospectus supplement,
the debt securities may be presented for transfer (duly endorsed
or accompanied by a written instrument of transfer, if so
required by us or the security registrar) or exchanged for other
debt securities of the same series (containing identical terms
and provisions, in any authorized denominations, and of a like
aggregate principal amount) at the office or agency maintained
by us for such purposes (initially the corporate trust office of
the trustee). Such transfer or exchange will be made without
service charge, but we may require payment of a sum sufficient
to cover any tax or other governmental charge and any other
expenses then payable. We will not be required to
(1) issue, register the transfer of, or exchange, the debt
securities during a period beginning at the opening of business
15 days before the day of mailing of a notice of redemption
of any such debt securities and ending at the close of business
on the day of such mailing or (2) register the transfer of
or exchange any debt security so selected for redemption in
whole or in part, except the unredeemed portion of any debt
security being redeemed in part. Any transfer agent (in addition
to the security registrar) initially designated by us for any
debt securities will be named in the related prospectus
supplement. We may at any time designate additional transfer
agents or rescind the designation of any transfer agent or
approve a change in the office through which any transfer agent
acts, except that we will be required to maintain a transfer
agent in each place where the principal of, any premium or
interest on or any additional amounts with respect to the debt
securities are payable.
Unless otherwise provided in the related prospectus supplement,
the debt securities will be issued only in fully registered form
without coupons in minimum denominations of $1,000 and any
integral multiple thereof. The debt securities may be
represented in whole or in part by one or more global debt
securities registered in the name of a depositary or its nominee
and, if so represented, interests in such global debt security
will be shown on, and transfers thereof will be effected only
through, records maintained by the designated depositary and its
participants as described below. Where the debt securities of
any series are issued in bearer form, the special restrictions
and considerations, including special offering restrictions and
special U.S. federal income tax considerations, applicable
to such debt securities and to payment on and transfer and
exchange of such debt securities will be described in the
related prospectus supplement.
27
The debt securities may be issued as original issue discount
securities (bearing no interest or bearing interest at a rate
which at the time of issuance is below market rates) to be sold
at a substantial discount below their principal amount and may
for various other reasons be considered to have original issue
discount for U.S. federal income tax purposes. In general,
original issue discount is included in the income of holders on
a
yield-to-maturity
basis. Accordingly, depending on the terms of the debt
securities, holders may be required to include amounts in income
prior to the receipt thereof. Special U.S. federal income
tax and other considerations applicable to original issue
discount securities will be described in the related prospectus
supplement.
If the purchase price of any debt securities is payable in one
or more foreign currencies or currency units or if any debt
securities are denominated in one or more foreign currencies or
currency units or if the principal of, or any premium or
interest on, or any additional amounts with respect to, any debt
securities is payable in one or more foreign currencies or
currency units, the restrictions, elections, certain
U.S. federal income tax considerations, specific terms and
other information with respect to such debt securities and such
foreign currency or currency units will be set forth in the
related prospectus supplement.
Unless otherwise described in a prospectus supplement relating
to any series of debt securities, other than as described below
under
Certain Provisions Applicable to the Senior Debt
Securities Limitation on Liens on Stock of
Subsidiaries and Certain Provisions Applicable to
the Senior Debt Securities Limitations on
Disposition of Stock of Designated Subsidiaries
, the
indentures do not contain any provisions that would limit our
ability to incur indebtedness or that would afford holders of
the debt securities protection in the event of a sudden and
significant decline in our credit quality or a takeover,
recapitalization or highly leveraged or similar transaction
involving us. Accordingly, we could in the future enter into
transactions that could increase the amount of indebtedness
outstanding at that time or otherwise affect our capital
structure or credit rating. You should refer to the prospectus
supplement relating to a particular series of the debt
securities for information regarding to any deletions from,
modifications of or additions to the Events of Defaults
described below or our covenants contained in the indentures,
including any addition of a covenant or other provisions
providing event risk or similar protection.
Conversion
and Exchange
The terms, if any, on which debt securities of any series are
convertible into or exchangeable for ordinary shares, preference
shares or other securities issued by us, property or cash, or a
combination of any of the foregoing, will be set forth in the
related prospectus supplement. Such terms may include provisions
for conversion or exchange, either mandatory, at the option of
the holder, or at our option, in which the securities, property
or cash to be received by the holders of the debt securities
would be calculated according to the factors and at such time as
described in the related prospectus supplement. Any such
conversion or exchange will comply with applicable Bermuda law,
our memorandum of association and bye-laws.
Optional
Redemption
Unless otherwise described in a prospectus supplement, relating
to any debt securities, we may redeem the debt securities at any
time, in whole or in part, at the redemption price. Unless
otherwise described in a prospectus supplement, debt securities
will not be subject to sinking fund or other mandatory
redemption or to redemption or repurchase at the option of the
holders upon a change of control, a change in management, an
asset sale or any other specified event. We currently have no
debt securities outstanding that are subject to redemption or
repurchase at the option of the holders.
Selection
and Notice
Unless otherwise described in a prospectus supplement, we will
send the holders of the debt securities to be redeemed a notice
of redemption by first-class mail at least 30 and not more than
60 days prior to the date fixed for redemption. If we elect
to redeem fewer than all the debt securities, unless otherwise
agreed in a holders redemption agreement, the trustee will
select in a fair and appropriate manner, including pro rata or
by lot, the debt securities to be redeemed in whole or in part.
Unless we default in payment of the redemption price, the debt
securities called for redemption shall cease to accrue any
interest on or after the redemption date.
28
Ranking
Unless otherwise provided in a prospectus supplement, our senior
debt securities will be unsecured obligations of ours and will
rank equally with all of our other unsecured and unsubordinated
indebtedness. The subordinated debt securities will be unsecured
obligations of ours, subordinated in right of payment to the
prior payment in full of all Senior Indebtedness (which term
includes the senior debt securities) of ours as described below
under
Certain Provisions Applicable to the Subordinated
Debt Securities
and in the applicable prospectus
supplement.
Because we are a holding company, our rights and the rights of
our creditors (including the holders of our debt securities) and
shareholders to participate in distributions by certain of our
subsidiaries upon that subsidiarys liquidation or
reorganization or otherwise would be subject to the prior claims
of that subsidiarys creditors, except to the extent that
we may ourselves be a creditor with recognized claims against
that subsidiary or our creditor may have the benefit of a
guaranty from our subsidiary. None of our creditors has the
benefit of a guaranty from any of our subsidiaries. The rights
of our creditors (including the holders of our debt securities)
to participate in the distribution of stock owned by us in
certain of our subsidiaries, including our insurance
subsidiaries, may also be subject to approval by certain
insurance regulatory authorities having jurisdiction over such
subsidiaries.
Consolidation,
Amalgamation, Merger and Sale of Assets
Unless otherwise described in a prospectus supplement, each
indenture provides that we may not (1) consolidate or
amalgamate with or merge into any person (whether or not
affiliated with us) or convey, transfer, sell or lease our
properties and assets as an entirety or substantially as an
entirety to any person (whether or not affiliated with us), or
(2) permit any person (whether or not affiliated with us)
to consolidate or amalgamate with or merge into us, or convey,
transfer or lease its properties and assets as an entirety or
substantially as an entirety to us, unless (a) such person
is a corporation or limited liability company organized and
existing under the laws of the United States, any state
thereof or the District of Columbia, Bermuda or any country
which is, on the date of the indenture, a member of the
Organization of Economic Cooperation and Development and will
expressly assume, by supplemental indenture satisfactory in form
to the trustee, the due and punctual payment of the principal
of, any premium and interest on and any additional amounts with
respect to the debt securities issued thereunder, and the
performance of our obligations under the indenture and the debt
securities issued thereunder; (b) immediately after giving
effect to such transaction and treating any indebtedness which
becomes an obligation of ours or of a Designated Subsidiary as a
result of such transaction as having been incurred by us or such
subsidiary at the time of such transaction, no event of default,
and no event which after notice or lapse of time or both would
become an event of default, will have happened and be
continuing; and (c) certain other documents are delivered.
Certain
Other Covenants
Except as otherwise permitted under
Certain provisions
applicable to the senior debt securities Limitations
on Liens of Stock of Designated Subsidiaries
and
Limitations on disposition of stock of
designated subsidiaries
described below and
Consolidation, Amalgamation, Merger and
Sale of Assets
described above, we will do or cause to
be done all things necessary to maintain in full force and
effect our legal existence, rights (charter and statutory) and
franchises. We are not, however, required to preserve any right
or franchise if we determine that it is no longer desirable in
the conduct of our business and the loss is not disadvantageous
in any material respect to any holders of the debt securities.
Events of
Default
Unless we provide otherwise or substitute Events of Default in a
prospectus supplement, the following events will constitute an
event of default under the indentures with respect to the debt
securities (whatever the reason for such event of default and
whether it will be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative
or governmental body):
(1) default in the payment of any interest on the debt
securities, or any additional amounts payable with respect
thereto, when such interest becomes or such additional amounts
become due and payable, and continuance of such default for a
period of 30 days;
29
(2) default in the payment of the principal of or any
premium, if any, on the debt securities, or any additional
amounts payable with respect thereto, when such principal or
premium becomes or such additional amounts become due and
payable either at maturity, upon any redemption, by declaration
of acceleration or otherwise;
(3) default in the performance, or breach, of any covenant
or warranty of ours contained in the indenture, and the
continuance of such default or breach for a period of
60 days after there has been given written notice as
provided in the indenture;
(4) default in the payment at maturity of our Indebtedness
in excess of $50 million or if any event of default as
defined in any mortgage, indenture or instrument under which
there may be issued, or by which there may be secured or
evidenced, any of our Indebtedness (other than indebtedness
which is non-recourse to us) happens and results in acceleration
of more than $50 million in principal amount of such
Indebtedness (after giving effect to any applicable grace
period), and such default is not cured or waived or such
acceleration is not rescinded or annulled within a period of
60 days after there has been given written notice as
provided in the indenture;
(5) we shall fail within 60 days to pay, bond or
otherwise discharge any uninsured judgment or court order for
the payment of money in excess of $50 million, which is not
stayed on appeal or is not otherwise being appropriately
contested in good faith;
(6) certain events relating to our bankruptcy, insolvency
or reorganization; or
(7) our default in the performance or breach of the
conditions relating to amalgamation, consolidation, merger or
sale of assets stated above, and the continuation of such
violation for 60 days after notice is given to the Company.
If an event of default with respect to the debt securities
(other than an event of default described in clause (6) of
the preceding paragraph) occurs and is continuing, either the
trustee or the holders of at least 25% in aggregate principal
amount of the outstanding debt securities by written notice as
provided in the indenture may declare the principal amount of
all outstanding debt securities to be due and payable
immediately. At any time after a declaration of acceleration has
been made, but before a judgment or decree for payment of money
has been obtained by the trustee, and subject to applicable law
and certain other provisions of the indenture, the holders of a
majority in aggregate principal amount of the debt securities
may, under certain circumstances, rescind and annul such
acceleration. An event of default described in clause (6)
of the preceding paragraph will cause the principal amount and
accrued interest to become immediately due and payable without
any declaration or other act by the trustee or any holder.
Each indenture provides that, within 60 days after the
trustee shall have knowledge of the occurrence of any event
which is, or after notice or lapse of time or both would become,
an event of default with respect to the debt securities, the
trustee will transmit, in the manner set forth in the indenture
and subject to the exceptions described below, notice of such
default to the holders of the debt securities unless such
default has been cured or waived. However, except in the case of
a default in the payment of principal of, or premium, if any, or
interest on, or additional amounts with respect to, any debt
securities, the trustee may withhold such notice if and so long
as the board, executive committee or a trust committee of
directors
and/or
responsible officers of the trustee in good faith determine that
the withholding of such notice is in the interests of the
holders of the debt securities.
Under each indenture, if an event of default occurs, has not
been waived and is continuing with respect to the debt
securities, the trustee may in its discretion proceed to protect
and enforce its rights and the rights of the holders of the debt
securities by all appropriate judicial proceedings. The
indentures provide that, subject to the duty of the trustees
during any default to act with the required standard of care,
the trustees will be under no obligation to exercise any of
their rights or powers under the indentures at the request or
direction of any of the holders of the debt securities, unless
such holders shall have offered to the trustees reasonable
indemnity. Subject to such provisions for the indemnification of
the trustees, and subject to applicable law and certain other
provisions of the indentures, the holders of a majority in
aggregate principal amount of the outstanding debt securities
will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the
trustees, or exercising any trust or power conferred on the
trustees, with respect to the debt securities.
30
Under the Companies Act, any payment or other disposition of
property made by us within six months prior to the commencement
of our winding up will be invalid if made with the intent to
fraudulently prefer one or more of our creditors at a time that
we were unable to pay our debts as they became due.
Modification
and Waiver
We and the trustees may modify, amend or supplement the
indentures with the consent of the holders of not less than a
majority in aggregate principal amount of the debt securities;
provided, however, that no such modification, amendment or
supplement may, without the consent of the holder of each
outstanding debt security affected thereby under the relevant
indenture,
|
|
|
|
|
change the stated maturity of the principal of, or any premium
or installment of interest on, or any additional amounts with
respect to, the debt securities;
|
|
|
|
reduce the principal amount of, or the rate (or modify the
calculation of such principal amount or rate) of interest on, or
any additional amounts with respect to, or any premium payable
upon the redemption of, the debt securities;
|
|
|
|
change our obligation to pay additional amounts with respect to
the debt securities;
|
|
|
|
change the redemption provisions of the debt securities or,
following the occurrence of any event that would entitle a
holder to require us to redeem or repurchase the debt securities
at the option of the holder, adversely affect the right of
redemption or repurchase at the option of such holder, of the
debt securities;
|
|
|
|
change the place of payment or the coin or currency in which the
principal of, any premium or interest on or any additional
amounts with respect to, the debt securities is payable;
|
|
|
|
impair the right to institute suit for the enforcement of any
payment on or after the stated maturity of the debt securities
(or, in the case of redemption, on or after the redemption date
or, in the case of repayment at the option of any holder, on or
after the repayment date);
|
|
|
|
reduce the percentage in principal amount of the debt
securities, the consent of whose holders is required in order to
take specific actions;
|
|
|
|
reduce the requirements for quorum or voting by holders of the
debt securities in the applicable section of the indenture;
|
|
|
|
modify any of the provisions in the indenture regarding the
waiver of past defaults and the waiver of certain covenants by
the holders of the debt securities except to increase any
percentage vote required or to provide that other provisions of
the indenture cannot be modified or waived without the consent
of the holder of each note affected thereby; or
|
|
|
|
modify any of the above provisions.
|
In addition, no supplemental indenture may directly or
indirectly modify or eliminate the subordination provisions of
the subordinated indenture in any manner which might terminate
or impair the subordination of the subordinated debt securities
to Senior Indebtedness (as defined elsewhere in this prospectus)
without the prior written consent of the holders of the Senior
Indebtedness.
We and the trustees may modify or amend the indentures and the
debt securities without the consent of any holder in order to,
among other things:
|
|
|
|
|
provide for our successor pursuant to a consolidation,
amalgamation, merger or sale of assets that complies with the
merger covenant;
|
|
|
|
add to our covenants for the benefit of the holders of the debt
securities or to surrender any right or power conferred upon us
by the indenture;
|
|
|
|
provide for a successor trustee with respect to the debt
securities;
|
31
|
|
|
|
|
cure any ambiguity or correct or supplement any provision in the
indenture which may be defective or inconsistent with any other
provision, or to make any other provisions with respect to
matters or questions arising under the indenture which will not
materially adversely affect the interests of the holders of the
debt securities;
|
|
|
|
change the conditions, limitations and restrictions on the
authorized amount, terms or purposes of issue, authentication
and delivery of the debt securities under the indenture;
|
|
|
|
add any additional events of default with respect to the debt
securities;
|
|
|
|
provide for conversion or exchange rights of the holders of the
debt securities; or
|
|
|
|
make any other change that does not materially adversely affect
the interests of the holders of the debt securities.
|
The holders of at least a majority in aggregate principal amount
of the debt securities may, on behalf of the holders of the debt
securities, waive compliance by us with certain restrictive
provisions of the indentures. The holders of not less than a
majority in aggregate principal amount of the debt securities
may, on behalf of the holders of the debt securities, waive any
past default and its consequences under the indentures with
respect to the debt securities, except a default (1) in the
payment of principal of, any premium or interest on or any
additional amounts with respect to the debt securities or
(2) in respect of a covenant or provision of the indenture
that cannot be modified or amended without the consent of the
holder of each debt security.
Under each indenture, we are required to furnish the trustee
annually a statement as to performance by us of certain of our
obligations under the indenture and as to any default in such
performance. We are also required to deliver to the trustee,
within five days after occurrence thereof, written notice of any
event of default or any event which after notice or lapse of
time or both would constitute an event of default under
clause (3) in
Events of
Default
described above.
Discharge,
Defeasance and Covenant Defeasance
Unless otherwise set forth in the applicable prospectus
supplement and indenture, we may discharge certain obligations
to holders of the debt securities that have not already been
delivered to the trustee for cancellation and that either have
become due and payable or will become due and payable within one
year (or called for redemption within one year) by depositing
with the trustee, in trust, funds in U.S. dollars or
Government Obligations (as defined below) in an amount
sufficient to pay the entire indebtedness on the debt securities
with respect to principal and any premium, interest and
additional amounts to the date of such deposit (if the debt
securities have become due and payable) or with respect to
principal, any premium and interest to the maturity or
redemption date thereof, as the case may be.
Each indenture provides that, unless the provisions of
Section 12.2 are made inapplicable to the debt securities
pursuant to Section 3.1 of the indenture, we may elect
either (1) to defease and be discharged from any and all
obligations with respect to the debt securities (except for,
among other things, the obligation to pay additional amounts, if
any, upon the occurrence of certain events of taxation,
assessment or governmental charge with respect to payments on
the debt securities and other obligations to register the
transfer or exchange of the debt securities, to replace
temporary or mutilated, destroyed, lost or stolen debt
securities, to maintain an office or agency with respect to the
debt securities and to hold moneys for payment in trust)
(defeasance) or (2) to be released from our
obligations with respect to the debt securities under certain
covenants and any omission to comply with such obligations will
not constitute a default or an event of default with respect to
the debt securities (covenant defeasance).
Defeasance or covenant defeasance, as the case may be, will be
conditioned upon the irrevocable deposit by us with the trustee,
in trust, of an amount in U.S. dollars, or Government
Obligations, or both, applicable to such debt securities which
through the scheduled payment of principal and interest in
accordance with their terms will provide money in an amount
sufficient to pay the principal of, any premium and interest on
the debt securities on the scheduled due dates or any prior
redemption date.
32
Such a trust may only be established if, among other things:
|
|
|
|
|
the applicable defeasance or covenant defeasance does not result
in a breach or violation of, or constitute a default under, any
material agreement or instrument, other than the indenture, to
which we are a party or by which we are bound,
|
|
|
|
no event of default or event which with notice or lapse of time
or both would become an event of default with respect to the
debt securities to be defeased will have occurred and be
continuing on the date of establishment of such a trust after
giving effect to such establishment and, with respect to
defeasance only, no bankruptcy proceeding will have occurred and
be continuing at any time during the period ending on the
91st day after such date,
|
|
|
|
we have delivered to the trustee an opinion of counsel (as
specified in the indenture) to the effect that the holders of
the debt securities will not recognize income, gain or loss for
U.S. federal income tax purposes as a result of such
defeasance or covenant defeasance 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 if such
defeasance or covenant defeasance had not occurred, and such
opinion of counsel, in the case of defeasance, must refer to and
be based upon a letter ruling of the Internal Revenue Service
received by us, a Revenue Ruling published by the Internal
Revenue Service or a change in applicable U.S. federal
income tax law occurring after the date of the
indenture, and
|
|
|
|
with respect to defeasance, we have delivered to the trustee an
officers certificate as to solvency and the absence of
intent of preferring holders over our other creditors.
|
Government Obligations means debt securities which
are (1) direct obligations of the United States for the
payment of which its full faith and credit is pledged or
(2) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States the
timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States which, in the
case of clauses (1) or (2), are not callable or redeemable
at the option of the issuer or issuers thereof, and will also
include a depository receipt issued by a bank or trust company
as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of or any other
amount with respect to any such Government Obligation held by
such custodian for the account of the holder of such depository
receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any
amount received by the custodian with respect to the Government
Obligation or the specific payment of interest on or principal
of or any other amount with respect to the Government Obligation
evidenced by such depository receipt.
In the event we effect covenant defeasance with respect to the
debt securities and the debt securities are declared due and
payable because of the occurrence of any event of default other
than an event of default with respect to any covenant as to
which there has been covenant defeasance, the Government
Obligations on deposit with the trustee will be sufficient to
pay amounts due on the debt securities at the time of the stated
maturity or redemption date but may not be sufficient to pay
amounts due on the debt securities at the time of the
acceleration resulting from such event of default. However, we
would remain liable to make payment of such amounts due at the
time of acceleration.
Payment
of Additional Amounts
Unless otherwise described in a prospectus supplement, we will
make all payments of principal of and premium, if any, interest
and any other amounts on, or in respect of, the debt securities
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 Bermuda or any other jurisdiction in which Aspen
Holdings is organized or otherwise considered to be a resident
for tax purposes or any other jurisdiction from which or through
which a payment on the debt securities is made by Aspen Holdings
(a taxing jurisdiction) or any political subdivision
or taxing authority thereof or therein, unless such taxes, fees,
duties, assessments or governmental charges are required to be
withheld or deducted by (x) the laws (or any regulations or
rulings promulgated thereunder) of a taxing jurisdiction or any
political subdivision or taxing authority thereof or therein or
(y) an official position regarding the application,
administration, interpretation or enforcement of any such laws,
33
regulations or rulings (including, without limitation, a holding
by a court of competent jurisdiction or by a taxing authority in
a taxing jurisdiction or any political subdivision thereof). If
a withholding or deduction at source is required, we will,
subject to certain limitations and exceptions described below,
pay to the holder of any note such additional amounts as may be
necessary so that every net payment of principal, premium, if
any, interest or any other amount made to such holder, after the
withholding or deduction (including any such withholding or
deduction from such additional amounts), will not be less than
the amount provided for in such note or in the indenture to be
then due and payable.
We will not be required to pay any additional amounts for or on
account of:
(1) any tax, fee, duty, assessment or governmental charge
of whatever nature which would not have been imposed but for the
fact that such holder (a) 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 ownership of, or receipt of payment
under, or enforcement of rights with respect to, such note,
(b) presented, where presentation is required, such note
for payment in the relevant taxing jurisdiction or any political
subdivision thereof, unless such note could not have been
presented for payment elsewhere, or (c) presented, where
presentation is required, such note for payment more than
30 days after the date on which the payment in respect of
such note became due and payable or provided for, whichever is
later, except to the extent that the holder would have been
entitled to such additional amounts if it had presented such
note for payment on any day within that
30-day
period;
(2) any estate, inheritance, gift, sale, transfer, personal
property or similar tax, assessment or other governmental charge;
(3) any tax, assessment or other governmental charge that
is imposed or withheld by reason of the failure by the holder of
such note to comply with any reasonable request by us addressed
to the holder within 90 days of such request (a) to
provide information concerning the nationality, residence or
identity of the holder or (b) to make any declaration or
other similar claim or satisfy any information or reporting
requirement, which is required or imposed by statute, treaty,
regulation or administrative practice of the relevant taxing
jurisdiction or any political subdivision thereof as a
precondition to exemption from all or part of such tax,
assessment or other governmental charge;
(4) any withholding or deduction required to be made
pursuant to any European Union (EU) Directive on the
taxation of savings implementing the conclusions of the ECOFIN
Council meetings of
26-27 November
2000, 3 June 2003 or any law implementing or complying
with, or introduced in order to conform to, such EU
Directive; or
(5) any combination of items (1), (2), (3) and (4).
In addition, we will not pay additional amounts with respect to
any payment of principal of, or premium, if any, interest or any
other amounts on, any such note to any holder who is a fiduciary
or partnership or other than the sole beneficial owner of such
note if such payment would be required by the laws of the
relevant taxing jurisdiction (or any political subdivision or
relevant taxing authority thereof or therein) 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 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 note.
Redemption
for Tax Purposes
Unless otherwise described in a prospectus supplement, we may
redeem the debt securities at our option, in whole but not in
part, at a redemption price equal to 100% of the principal
amount, together with accrued and unpaid interest and additional
amounts, if any, to the date fixed for redemption, if at any
time we determine in good faith that as a result of (1) any
change in or amendment to the laws or treaties (or any
regulations or rulings promulgated under these laws or treaties)
of any taxing jurisdiction (or of any political subdivision or
taxation authority thereof affecting taxation) or any change in
the position regarding the application or official
interpretation of such laws, treaties, regulations or rulings
(including a holding, judgment or order by a court of competent
jurisdiction) which change in
34
position becomes effective after the issuance of the debt
securities, or (2) any action taken by any taxing
jurisdiction (or any political subdivision or taxing authority
thereof affecting taxation) which action is generally applied or
is taken with respect to the Company, we would be required as of
the next interest payment date to pay additional amounts with
respect to the debt securities as provided in Payment of
Additional Amounts above and such requirements cannot be
avoided by the use of reasonable measures (consistent with
practices and interpretations generally followed or in effect at
the time such measures could be taken) then available. If we
elect to redeem the debt securities under this provision, we
will give written notice of such election to the trustee and the
holders of the debt securities. Interest on the debt securities
will cease to accrue unless we default in the payment of the
redemption price.
Notwithstanding the foregoing, no such notice of redemption will
be given earlier than 90 days prior to the earliest date on
which we would be obliged to make such payment of additional
amounts or withholding if a payment in respect of the debt
securities were then due. In any event, prior to the publication
or mailing or any notice of redemption of the debt securities
pursuant to the foregoing, we will deliver to the trustee an
opinion of independent tax counsel of recognized standing
reasonably satisfactory to the trustee to the effect that the
circumstances referred to above exist. The trustee will accept
such opinion as sufficient evidence of the satisfaction of the
conditions precedent described above, in which event it will be
conclusive and binding on the holders of the debt securities.
Global
Debt Securities
Unless otherwise described in the applicable prospectus
supplement, the debt securities of a series may be issued in
whole or in part in the form of one or more global debt
securities that will be deposited with, or on behalf of, a
depositary identified in the prospectus supplement relating to
such series.
The specific terms of the depositary arrangement with respect to
a series of the debt securities will be described in the
prospectus supplement relating to such series. We anticipate
that the following provisions will apply to all depositary
arrangements.
Upon the issuance of a global security, the depositary for such
global security or its nominee will credit, on its book-entry
registration and transfer system, the respective principal
amounts of the debt securities represented by such global
security. Such accounts will be designated by the underwriters
or agents with respect to such debt securities or by us if such
debt securities are offered and sold directly by us. Ownership
of beneficial interests in a global security will be limited to
persons that may hold interests through participants. Ownership
of beneficial interests in such global security will be shown
on, and the transfer of that ownership will be effected only
through, records maintained by the depositary or its nominee
(with respect to interests of participants) and on the records
of participants (with respect to interests of persons other than
participants). The laws of some states require that certain
purchasers of securities take physical delivery of such
securities in definitive form. Such limits and such laws may
impair the ability to transfer beneficial interests in a global
security.
So long as the depositary for a global security, or its nominee,
is the registered owner of such global security, such depositary
or such nominee, as the case may be, will be considered the sole
owner or holder of the debt securities represented by such
global security for all purposes under the applicable indenture.
Except as described below, owners of beneficial interests in a
global security will not be entitled to have the debt securities
of the series represented by such global security registered in
their names and will not receive or be entitled to receive
physical delivery of the debt securities of that series in
definitive form.
Principal of, any premium and interest on, and any additional
amounts with respect to, the debt securities registered in the
name of a depositary or its nominee will be made to the
depositary or its nominee, as the case may be, as the registered
owner of the global security representing such debt securities.
None of the trustee, any paying agent, the security registrar or
us will have any responsibility or liability for any aspect of
the records relating to or payments made on account of
beneficial ownership interests of the global security for such
debt securities or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
We expect that the depositary for a series of the debt
securities or its nominee, upon receipt of any payment with
respect to such debt securities, will credit immediately
participants accounts with payments in amounts
proportionate to their respective beneficial interest in the
principal amount of the global security for such debt securities
as shown on the records of such depositary or its nominee. We
also expect that payments by participants to
35
owners of beneficial interests in such global security held
through such participants will be governed by standing
instructions and customary practices, as is now the case with
securities held for the accounts of customers registered in
street name, and will be the responsibility of such
participants.
The indentures provide that if:
(1) the depositary for a series of the debt securities
notifies us that it is unwilling or unable to continue as
depositary or if such depositary ceases to be eligible under the
applicable indenture and a successor depositary is not appointed
by us within 90 days of written notice;
(2) we determine that the debt securities of a particular
series will no longer be represented by global securities and
executes and delivers to the trustee a company order to such
effect; or
(3) an Event of Default with respect to a series of the
debt securities has occurred and is continuing,
the global securities will be exchanged for the debt securities
of such series in definitive form of like tenor and of an equal
aggregate principal amount, in authorized denominations.
Such definitive debt securities will be registered in such name
or names as the depositary shall instruct the trustee. It is
expected that such instructions may be based upon directions
received by the depositary from participants with respect to
ownership of beneficial interests in global securities.
Governing
Law
Each indenture and the debt securities will be governed by, and
construed in accordance with, the laws of the State of New York
applicable to agreements made or instruments entered into and,
in each case, performed in that state.
Information
Concerning the Trustee
Unless otherwise specified in the applicable prospectus
supplement, Deutsche Bank Trust Company Americas is the
trustee and paying agent under the indentures and is one of a
number of banks with which Aspen Holdings and its subsidiaries
maintain banking relationships in the ordinary course of
business.
36
CERTAIN
PROVISIONS APPLICABLE TO THE SENIOR DEBT SECURITIES
Limitations
on Liens on Stock of Designated Subsidiaries
Under the senior indenture, we covenanted that, so long as any
debt securities are outstanding, we will not, nor will we permit
any subsidiary to, create, assume, incur, guarantee or otherwise
permit to exist any Indebtedness secured by any mortgage,
pledge, lien, security interest or other encumbrance (each, a
Lien) upon any shares of capital stock of any
Designated Subsidiary (whether such shares of stock are now
owned or hereafter acquired) without effectively providing
concurrently that the debt securities (and, if we so elect, any
other Indebtedness of ours that is not subordinate to the debt
securities and with respect to which the governing instruments
require, or pursuant to which we are otherwise obligated, to
provide such security) will be secured equally and ratably with
such Indebtedness for at least the time period such other
Indebtedness is so secured.
For purposes of the indenture, capital stock of any
person means any and all share capital, interests, rights to
purchase, warrants, options, participations or other equivalents
of or interests in (however designated) equity of such person,
including preferred stock, but excluding any debt securities
convertible into such equity.
The term Designated Subsidiary means any present or
future consolidated subsidiary of ours, the consolidated book
value of which constitutes at least 20% of our consolidated book
value. As of December 15, 2010, our only Designated
Subsidiaries were Aspen U.K. and Aspen Bermuda.
The term Indebtedness means, with respect to any
person:
(1) the principal of and any premium and interest on
(a) indebtedness of such person for money borrowed or
(b) indebtedness evidenced by debt securities, debentures,
bonds or other similar instruments for the payment of which such
person is responsible or liable;
(2) all capitalized lease obligations of such person;
(3) all obligations of such person issued or assumed as the
deferred purchase price of property, all conditional sale
obligations and all obligations under any title retention
agreement (but excluding trade accounts payable arising in the
ordinary course of business);
(4) all obligations of such person for the reimbursement of
any obligor on any letter of credit, bankers acceptance or
similar credit transaction (other than obligations with respect
to letters of credit securing obligations (other than
obligations described in (1) through (3) above)
entered into in the ordinary course of business of such person
to the extent such letters of credit are not drawn upon or, if
and to the extent drawn upon, such drawing is reimbursed no
later than the third business day following receipt by such
person of a demand for reimbursement following payment on the
letter of credit);
(5) all obligations of the type referred to in
clauses (1) through (4) of other persons and all
dividends of other persons for the payment of which, in either
case, such person is responsible or liable as obligor, guarantor
or otherwise, the amount thereof being deemed to be the lesser
of the stated recourse, if limited, and the amount of the
obligations or dividends of the other person;
(6) all obligations of the type referred to in
clauses (1) through (5) of other persons secured by
any mortgage, pledge, lien, security interest or other
encumbrance on any property or asset of such person (whether or
not such obligation is assumed by such person), the amount of
such obligation being deemed to be the lesser of the value of
such property or assets or the amount of the obligation so
secured; and
(7) any amendments, modifications, refundings, renewals or
extensions of any indebtedness or obligation described as
Indebtedness in clauses (1) through (6) above.
Limitations
on Disposition of Stock of Designated Subsidiaries
The senior indenture also provides that, so long as any debt
securities are outstanding and except in a transaction otherwise
governed by such indenture, we will not, nor will we permit any
subsidiary to (other than to us or another Designated
Subsidiary) issue, sell, assign, transfer or otherwise dispose
of any shares of, securities convertible into, or warrants,
rights or options to subscribe for or purchase shares of,
capital stock (other than
37
preferred stock having no voting rights of any kind) of any
Designated Subsidiary, and will not permit any Designated
Subsidiary to issue (other than to us or another Designated
Subsidiary) any shares (other than directors qualifying
shares) of, or securities convertible into, or warrants, rights
or options to subscribe for or purchase shares of, capital stock
(other than preferred stock having no voting rights of any kind)
of any Designated Subsidiary, if, after giving effect to any
such transaction and the issuance of the maximum number of
shares issuable upon the conversion or exercise of all such
convertible securities, warrants, rights or options, the
Designated Subsidiary would remain a subsidiary of the Company
and we would own, directly or indirectly, less than 80% of the
shares of capital stock of such Designated Subsidiary (other
than preferred stock having no voting rights of any kind);
provided, however, that the foregoing will not prohibit
(1) any issuance, sale, assignment, transfer or other
disposition made for at least a fair market value consideration
as determined by our board of directors pursuant to a resolution
adopted in good faith and (2) any such issuance or
disposition of securities required by any law or any regulation
or order of any governmental or insurance regulatory authority.
Notwithstanding the foregoing, (1) we may merge, amalgamate
or consolidate any Designated Subsidiary into or with another
direct or indirect subsidiary of ours, the shares of capital
stock of which we own at least 80%, and (2) we may, subject
to the provisions described under Description of Debt
Securities Consolidation, Amalgamation, Merger and Sale of
Assets above, sell, assign, transfer or otherwise dispose
of the entire capital stock of any Designated Subsidiary at one
time for at least a fair market value consideration as
determined by our board of directors pursuant to a resolution
adopted in good faith.
38
CERTAIN
PROVISIONS APPLICABLE TO THE SUBORDINATED DEBT
SECURITIES
The following description of our subordinated debt securities is
qualified in its entirety by reference to the subordinated
indenture, as it may be amended or supplemented from time to
time. The subordinated debt securities will, to the extent set
forth in the subordinated indenture, be subordinate in right of
payment to the prior payment in full of all Senior Indebtedness.
As of December 15, 2010, none of our long-term debt is
secured; however, like other insurance companies, we do secure
letters of credit from banks to support our obligations. In the
event of:
(1) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case
or proceeding in connection therewith, relative to us or to our
creditors, as such, or to our assets; or
(2) any voluntary or involuntary liquidation, dissolution
or other winding up of ours, whether or not involving insolvency
or bankruptcy; or
(3) any assignment for the benefit of creditors or any
other marshalling of assets and liabilities of ours;
then and in any such event the holders of Senior Indebtedness
will be entitled to receive payment in full of all amounts due
or to become due on or in respect of all Senior Indebtedness, or
provision will be made for such payment in cash, before the
holders of the subordinated debt securities are entitled to
receive or retain any payment on account of principal of, or any
premium or interest on, or any additional amounts with respect
to, subordinated debt securities, and to that end the holders of
Senior Indebtedness will be entitled to receive, for application
to the payment thereof, any payment or distribution of any kind
or character, whether in cash, property or securities, including
any such payment or distribution which may be payable or
deliverable by reason of the payment of any other Indebtedness
of ours being subordinated to the payment of subordinated debt
securities, which may be payable or deliverable in respect of
subordinated debt securities in any such case, proceeding,
dissolution, liquidation or other winding up event.
By reason of such subordination, in the event of our liquidation
or insolvency, holders of Senior Indebtedness and holders of
other obligations of ours that are not subordinated to Senior
Indebtedness may recover more, ratably, than the holders of
subordinated debt securities.
Subject to the payment in full of all Senior Indebtedness, the
rights of the holders of subordinated debt securities will be
subrogated to the rights of the holders of Senior Indebtedness
to receive payments or distributions of cash, property or
securities of ours applicable to such Senior Indebtedness until
the principal of, any premium and interest on, and any
additional amounts with respect to, subordinated debt securities
have been paid in full.
No payment of principal (including redemption and sinking fund
payments) of or any premium or interest on or any additional
amounts with respect to the subordinated debt securities, or
payments to acquire such securities (other than pursuant to
their conversion), may be made (1) if any Senior
Indebtedness of ours is not paid when due and any applicable
grace period with respect to such default has ended and such
default has not been cured or waived or ceased to exist, or
(2) if the maturity of any Senior Indebtedness of ours has
been accelerated because of a default. The subordinated
indenture does not limit or prohibit us from incurring
additional Senior Indebtedness, which may include Indebtedness
that is senior to subordinated debt securities, but subordinate
to our other obligations. The senior debt securities will
constitute Senior Indebtedness under the subordinated indenture.
The term Senior Indebtedness means all Indebtedness
of ours outstanding at any time, except:
(1) the subordinated debt securities;
(2) Indebtedness as to which, by the terms of the
instrument creating or evidencing the same, it is provided that
such Indebtedness is subordinated to or ranks equally with the
subordinated debt securities;
(3) Indebtedness of ours to an affiliate of ours;
(4) interest accruing after the filing of a petition
initiating any bankruptcy, insolvency or other similar
proceeding unless such interest is an allowed claim enforceable
against us in a proceeding under federal or state bankruptcy
laws; and
(5) trade accounts payable.
39
Such Senior Indebtedness will continue to be Senior Indebtedness
and be entitled to the benefits of the subordination provisions
irrespective of any amendment, modification or waiver of any
term of such Senior Indebtedness.
The subordinated indenture provides that the foregoing
subordination provisions, insofar as they relate to any
particular issue of subordinated debt securities, may be changed
prior to such issuance. Any such change would be described in
the related prospectus supplement.
40
DESCRIPTION
OF THE WARRANTS TO PURCHASE ORDINARY
SHARES OR PREFERENCE SHARES
The following statements with respect to the ordinary share
warrants and preference share warrants are summaries of, and
subject to, the detailed provisions of a share warrant agreement
to be entered into by us and a share warrant agent to be
selected at the time of issue. The particular terms of any
warrants offered by any prospectus supplement, and the extent to
which the general provisions described below may apply to the
offered securities, will be described in the prospectus
supplement.
General
The share warrants, evidenced by share warrant certificates, may
be issued under a share warrant agreement independently or
together with any other securities offered by any prospectus
supplement and may be attached to or separate from such other
offered securities. If share warrants are offered, the related
prospectus supplement will describe the designation and terms of
the share warrants, including without limitation the following:
|
|
|
|
|
the offering price, if any;
|
|
|
|
the aggregate number of warrants;
|
|
|
|
the designation and terms of the ordinary shares or preference
shares purchasable upon exercise of the share warrants;
|
|
|
|
if applicable, the date on and after which the share warrants
and the related offered securities will be separately
transferable;
|
|
|
|
the number of ordinary shares or preference shares purchasable
upon exercise of one share warrant and the initial price at
which such shares may be purchased upon exercise;
|
|
|
|
the date on which the right to exercise the share warrants shall
commence and the date on which such right shall expire;
|
|
|
|
a discussion of certain U.S. federal income tax
considerations;
|
|
|
|
the call provisions, if any;
|
|
|
|
the currency, currencies or currency units in which the offering
price, if any, and exercise price are payable;
|
|
|
|
the antidilution provisions of the share warrants; and
|
|
|
|
any other terms of the share warrants.
|
The ordinary shares or preference shares issuable upon exercise
of the share warrants will, when issued in accordance with the
share warrant agreement, be fully paid and nonassessable.
Exercise
of Share Warrants
Share warrants may be exercised by surrendering to the share
warrant agent the share warrant certificate with the form of
election to purchase on the reverse thereof duly completed and
signed by the warrantholder, or its duly authorized agent (such
signature to be guaranteed by a bank or trust company, by a
broker or dealer which is a member of the National Association
of Securities Dealers, Inc. or by a member of a national
securities exchange), indicating the warrantholders
election to exercise all or a portion of the share warrants
evidenced by the certificate. Surrendered share warrant
certificates will be accompanied by payment of the aggregate
exercise price of the share warrants to be exercised, as set
forth in the related prospectus supplement, in lawful money of
the United States, unless otherwise provided in the related
prospectus supplement. Upon receipt thereof by the share warrant
agent, the share warrant agent will requisition from the
transfer agent for the ordinary shares or the preference shares,
as the case may be, for issuance and delivery to or upon the
written order of the exercising warrantholder, a certificate
representing the number of ordinary shares or preference shares
purchased. If less than all of the share warrants evidenced by
any share warrant certificate are exercised, the share warrant
agent will deliver to the exercising warrantholder a new share
warrant certificate representing the unexercised share warrants.
41
Antidilution
and Other Provisions
The exercise price payable and the number of ordinary shares or
preference shares purchasable upon the exercise of each share
warrant and the number of share warrants outstanding will be
subject to adjustment in certain events which will be described
in a prospectus supplement. These may include the issuance of a
stock dividend to holders of ordinary shares or preference
shares, respectively, or a combination, subdivision or
reclassification of ordinary shares or preference shares,
respectively. In lieu of adjusting the number of ordinary shares
or preference shares purchasable upon exercise of each share
warrant, we may elect to adjust the number of share warrants. No
adjustment in the number of shares purchasable upon exercise of
the share warrants will be required until cumulative adjustments
require an adjustment of at least 1% thereof. We may, at our
option, reduce the exercise price at any time. No fractional
shares will be issued upon exercise of share warrants, but we
will pay the cash value of any fractional shares otherwise
issuable. Notwithstanding the foregoing, in case of our
consolidation, merger, or sale or conveyance of our property as
an entirety or substantially as an entirety, the holder of each
outstanding share warrant shall have the right to the kind and
amount of shares of stock and other securities and property
(including cash) receivable by a holder of the number of
ordinary shares or preference shares into which such share
warrants were exercisable immediately prior thereto.
No Rights
as Shareholders
Holders of share warrants will not be entitled, by virtue of
being such holders, to vote, to consent, to receive dividends,
to receive notice as shareholders with respect to any meeting of
shareholders for the election of our directors or any other
matter, or to exercise any rights whatsoever as our shareholders.
42
DESCRIPTION
OF THE WARRANTS TO PURCHASE DEBT SECURITIES
The following statements with respect to the debt warrants are
summaries of, and subject to, the detailed provisions of a debt
warrant agreement to be entered into by us and a debt warrant
agent to be selected at the time of issue. The particular terms
of any warrants offered by any prospectus supplement, and the
extent to which the general provisions described below may apply
to the offered securities, will be described in the prospectus
supplement.
General
The debt warrants, evidenced by debt warrant certificates, may
be issued under a debt warrant agreement independently or
together with any other securities offered by any prospectus
supplement and may be attached to or separate from such other
offered securities. If debt warrants are offered, the related
prospectus supplement will describe the designation and terms of
the debt warrants, including without limitation the following:
|
|
|
|
|
the offering price, if any;
|
|
|
|
the aggregate number of debt warrants;
|
|
|
|
the designation, aggregate principal amount and terms of the
debt securities purchasable upon exercise of the debt warrants;
|
|
|
|
if applicable, the date on and after which the debt warrants and
the related offered securities will be separately transferable;
|
|
|
|
the principal amount of debt securities purchasable upon
exercise of one debt warrant and the price at which such
principal amount of debt securities may be purchased upon
exercise;
|
|
|
|
the date on which the right to exercise the debt warrants shall
commence and the date on which such right shall expire;
|
|
|
|
a discussion of certain U.S. federal income tax
considerations;
|
|
|
|
whether the warrants represented by the debt warrant
certificates will be issued in registered or bearer form;
|
|
|
|
the currency, currencies or currency units in which the offering
price, if any, and exercise price are payable;
|
|
|
|
the antidilution provisions of the debt warrants; and
|
|
|
|
any other terms of the debt warrants.
|
Warrantholders will not have any of the rights of holders of
debt securities, including the right to receive the payment of
principal of, any premium or interest on, or any additional
amounts with respect to, the debt securities or to enforce any
of the covenants of the debt securities or the applicable
indenture except as otherwise provided in the applicable
indenture.
Exercise
of Debt Warrants
Debt warrants may be exercised by surrendering the debt warrant
certificate at the office of the debt warrant agent, with the
form of election to purchase on the reverse side of the debt
warrant certificate properly completed and executed (with
signature(s) guaranteed by a bank or trust company, by a broker
or dealer which is a member of the National Association of
Securities Dealers, Inc. or by a member of a national securities
exchange), and by payment in full of the exercise price, as set
forth in the related prospectus supplement. Upon the exercise of
debt warrants, we will issue the debt securities in authorized
denominations in accordance with the instructions of the
exercising warrantholder. If less than all of the debt warrants
evidenced by the debt warrant certificate are exercised, a new
debt warrant certificate will be issued for the remaining number
of debt warrants.
43
DESCRIPTION
OF THE PURCHASE CONTRACTS AND THE PURCHASE UNITS
We may issue purchase contracts, obligating holders to purchase
from us, and obligating us to sell to the holders, a specified
number of our ordinary shares, preference shares, debt
securities or securities of third parties, a basket of such
securities, an index or indices of such securities or any
combination of the above, as specified in the applicable
prospectus supplement, at a future date or dates. The price per
security may be fixed at the time the purchase contracts are
issued or may be determined by reference to a specific formula
set forth in the purchase contracts and to be described in the
applicable prospectus supplement. The purchase contracts may be
issued separately or as a part of purchase units consisting of a
purchase contract and, as security for the holders
obligations to purchase the securities under the purchase
contracts, either:
(1) our senior debt securities or our subordinated debt
securities;
(2) our preference shares; or
(3) debt obligations of third parties, including
U.S. Treasury securities.
The applicable prospectus supplement will specify the securities
that will secure the holders obligations to purchase
securities under the applicable purchase contract. Unless
otherwise described in a prospectus supplement, the securities
related to the purchase contracts securing the holders
obligations to purchase securities will be pledged to a
collateral agent, for our benefit, under a pledge agreement. The
pledged securities will secure the obligations of holders of
purchase contracts to purchase securities under the related
purchase contracts. The rights of holders of purchase contracts
to the related pledged securities will be subject to our
security interest in those pledged securities. That security
interest will be created by the pledge agreement. No holder of
purchase contracts will be permitted to withdraw the pledged
securities related to such purchase contracts from the pledge
arrangement except upon the termination or early settlement of
the related purchase contracts. Subject to that security
interest and the terms of the purchase contract agreement and
the pledge agreement, each holder of a purchase contract will
retain full beneficial ownership of the related pledged
securities.
The purchase contracts may require us to make periodic payments
to the holders of the purchase units or vice versa, and such
payments may be unsecured or prefunded on some basis. The
purchase contracts may require holders to secure their
obligations in a specified manner and in certain circumstances
we may deliver newly issued prepaid purchase contracts upon
release to a holder of any collateral securing such
holders obligations under the original purchase contract.
The applicable prospectus supplement will describe the terms of
any purchase contracts or purchase units and, if applicable,
prepaid purchase contracts.
Except as described in a prospectus supplement, the collateral
agent will, upon receipt of distributions on the pledged
securities, distribute those payments to us or a purchase
contract agent, as provided in the pledge agreement. The
purchase contract agent will in turn distribute payments it
receives as provided in the purchase contract.
44
PLAN OF
DISTRIBUTION
Distributions
by Aspen Holdings and the Selling Shareholders
We
and/or
the selling shareholders may sell offered securities in any one
or more of the following ways from time to time:
(1) through agents;
(2) to or through underwriters;
(3) through dealers;
(4) directly to purchasers; or
(5) in market transactions, including transactions on a
national securities exchange (e.g., on the NYSE) or a quotations
service or an over-counter market (including through
at-the-market
offerings).
In sales to or through underwriters in a demand registration by
the selling shareholders, a selling shareholder may only sell
ordinary shares through underwriting syndicates led by one or
more managing underwriters, as designated by the selling
shareholders initiating the demand registration, who shall be
named in the applicable prospectus supplement. In an
underwritten offering in which we are offering our ordinary
shares, selling shareholders may only sell ordinary shares
through underwriting syndicates led by one or more managing
underwriters selected by us, who shall be named in the
applicable prospectus supplement.
The prospectus supplement with respect to the offered securities
will set forth the terms of the offering of the offered
securities, including the name or names of any underwriters,
dealers or agents; the purchase price of the offered securities
and the proceeds to us
and/or
the
selling shareholders from such sale; any underwriting discounts
and commissions or agency fees and other items constituting
underwriters or agents compensation; any initial
public offering price and any discounts or concessions allowed
or reallowed or paid to dealers and any securities exchange on
which such offered securities may be listed. Any public offering
price, discounts or concessions allowed or reallowed or paid to
dealers may be changed from time to time.
The selling shareholders may offer their ordinary shares in one
or more offerings pursuant to one or more prospectus
supplements, and each such prospectus supplement will set forth
the terms of the relevant offering as described above. To the
extent the ordinary shares offered pursuant to a prospectus
supplement remain unsold, the selling shareholder may offer
those ordinary shares on different terms pursuant to another
prospectus supplement, provided that no selling shareholder may
offer or sell more ordinary shares in the aggregate than are
indicated in the table set forth under the caption Selling
Shareholders pursuant to any such prospectus supplements.
Notwithstanding this plan of distribution, each of the selling
shareholders also may resell all or a portion of its ordinary
shares in open market transactions in reliance upon
Rule 144 under the Securities Act, provided it meets the
criteria and conforms to the requirements of Rule 144.
The distribution of the offered securities may be effected from
time to time in one or more transactions at a fixed price or
prices, which may be changed, at market prices prevailing at the
time of sale, at prices related to such prevailing market prices
or at negotiated prices.
We
and/or
the selling shareholders may sell the securities through agents
from time to time. Any such agent involved in the offer or sale
of the offered securities in respect of which this prospectus is
delivered will be named, and any commissions payable by us
and/or
the
selling shareholders to such agent will be set forth, in the
applicable prospectus supplement. Unless otherwise indicated in
such prospectus supplement, any such agent will be acting on a
reasonable best efforts basis for the period of its appointment.
Any such agent may be deemed to be an underwriter, as that term
is defined in the Securities Act, of the offered securities so
offered and sold.
Each of the selling shareholders may offer its ordinary shares
at various times in one or more of the following transactions:
through short sales, derivative and hedging transactions; by
pledge to secure debts and other obligations; through offerings
of securities exchangeable, convertible or exercisable for
ordinary shares; under forward purchase contracts with trusts,
investment companies or other entities (which may, in turn,
distribute their
45
own securities) through distribution to its members, partners or
shareholders; in exchange or
over-the-counter
market transactions;
and/or
in
private transactions.
If offered securities are sold by means of an underwritten
offering, we
and/or
the
selling shareholders will execute an underwriting agreement with
an underwriter or underwriters, and the names of the specific
managing underwriter or underwriters, as well as any other
underwriters, and the terms of the transaction, including
commissions, discounts and any other compensation of the
underwriters and dealers, if any, will be set forth in the
prospectus supplement which will be used by the underwriters to
make resales of the offered securities. If underwriters are
utilized in the sale of the offered securities, the offered
securities will be acquired by the underwriters for their own
account and may be resold from time to time in one or more
transactions, including negotiated transactions, at fixed public
offering prices or at varying prices determined by the
underwriters at the time of sale.
Our offered securities may be offered to the public either
through underwriting syndicates represented by managing
underwriters or directly by the managing underwriters. If any
underwriter or underwriters are utilized in the sale of the
offered securities, unless otherwise indicated in the prospectus
supplement, the underwriting agreement will provide that the
obligations of the underwriters are subject to certain
conditions precedent and that the underwriters with respect to a
sale of offered securities will be obligated to purchase all
such offered securities of a series if any are purchased. We
and/or
the
selling shareholders may grant to the underwriters options to
purchase additional offered securities, to cover
over-allotments, if any, at the public offering price (with
additional underwriting discounts or commissions), as may be set
forth in the prospectus supplement relating thereto. If we
and/or
the
selling shareholders grant any over-allotment option, the terms
of such over-allotment option will be set forth in the
prospectus supplement relating to such offered securities.
If a dealer is utilized in the sales of offered securities in
respect of which this prospectus is delivered, we
and/or
the
selling shareholders will sell such offered securities to the
dealer as principal. The dealer may then resell such offered
securities to the public at varying prices to be determined by
such dealer at the time of resale. Any such dealer may be deemed
to be an underwriter, as such term is defined in the Securities
Act, of the offered securities so offered and sold. The name of
the dealer and the terms of the transaction will be set forth in
the related prospectus supplement.
Offers to purchase offered securities may be solicited directly
by us
and/or
the selling shareholders and the sale thereof may be made by us
and/or
the
selling shareholders directly to institutional investors or
others, who may be deemed to be underwriters within the meaning
of the Securities Act with respect to any resale thereof. The
terms of any such sales will be described in the related
prospectus supplement.
We may enter into derivative or other hedging transactions with
financial institutions. These financial institutions may in turn
engage in sales of ordinary shares to hedge their position,
deliver this prospectus in connection with some or all of those
sales and use the shares covered by this prospectus to close out
any short position created in connection with those sales. We
may also sell our ordinary shares short using this prospectus
and deliver ordinary shares covered by this prospectus to close
out such short positions, or loan or pledge ordinary shares to
financial institutions that in turn may sell the ordinary shares
using this prospectus. We may pledge or grant a security
interest in some or all of the ordinary shares covered by this
prospectus to support a derivative or hedging position or other
obligation and, if we default in the performance of our
obligations, the pledgees or secured parties may offer and sell
the ordinary shares from time to time pursuant to this
prospectus.
Offered securities may also be offered and sold, if so indicated
in the applicable prospectus supplement, in connection with a
remarketing upon their purchase, in accordance with a redemption
or repayment pursuant to their terms, or otherwise, by one or
more firms (remarketing firms), acting as principals
for their own accounts or as agents for us. Any remarketing firm
will be identified and the terms of its agreements, if any, with
us and its compensation will be described in the applicable
prospectus supplement. Remarketing firms may be deemed to be
underwriters, as such term is defined in the Securities Act, in
connection with the offered securities remarketed thereby.
We may sell equity securities in an offering at the
market as defined in Rule 415 under the Securities
Act. A post-effective amendment to this registration statement
will be filed to identify the underwriter(s) at the time of the
take-down for at the market offerings.
Underwriters and purchasers that are deemed underwriters under
the Securities Act may engage in transactions that stabilize,
maintain or otherwise affect the price of the securities,
including the entry of stabilizing bids or
46
syndicate covering transactions or the imposition of penalty
bids. Such purchasers will be subject to the applicable
provisions of the Securities Act and Exchange Act and the rules
and regulations thereunder, including
Rule 10b-5
and Regulation M. Regulation M may restrict the
ability of any person engaged in the distribution of the
securities to engage in market-making activities with respect to
those securities. In addition, the anti-manipulation rules under
the Exchange Act may apply to sales of the securities in the
market. All of the foregoing may affect the marketability of the
securities and the ability of any person to engage in
market-making activities with respect to the securities.
Agents, underwriters, dealers and remarketing firms may be
entitled under relevant agreements entered into with us to
indemnification by us
and/or
the
selling shareholders against certain civil liabilities,
including liabilities under the Securities Act that may arise
from any untrue statement or alleged untrue statement of a
material fact or any omission or alleged omission to state a
material fact in this prospectus, any supplement or amendment
hereto, or in the registration statement of which this
prospectus forms a part, or to contribution with respect to
payments which the agents, underwriters, dealers or remarketing
firms may be required to make.
If so indicated in the prospectus supplement, we will authorize
underwriters or other persons acting as our agents to solicit
offers by certain institutions to purchase offered securities
from us, pursuant to contracts providing for payments and
delivery on a future date. Institutions with which such
contracts may be made include commercial and savings banks,
insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all
cases such institutions must be approved by us. The obligations
of any purchaser under any such contract will be subject to the
condition that the purchase of the offered securities shall not
at the time of delivery be prohibited under the laws of the
jurisdiction to which such purchaser is subject. The
underwriters and such other agents will not have any
responsibility in respect of the validity or performance of such
contracts.
Disclosure in the prospectus supplement of our use of delayed
delivery contracts will include the commission that underwriters
and agents soliciting purchases of the securities under delayed
contracts will be entitled to receive in addition to the date
when we will demand payment and delivery of the securities under
the delayed delivery contracts. These delayed delivery contracts
will be subject only to the conditions that we describe in the
prospectus supplement.
Each series of offered securities will be a new issue and, other
than the ordinary shares which are listed on the NYSE, will have
no established trading market. We may elect to list any series
of offered securities on an exchange, and in the case of the
ordinary shares, on any additional exchange, but, unless
otherwise specified in the applicable prospectus supplement, we
shall not be obligated to do so. No assurance can be given as to
the liquidity of the trading market for any of the offered
securities.
Underwriters, dealers, agents and remarketing firms, as well as
their respective affiliates, may be customers of, engage in
transactions with, or perform services for, us, our subsidiaries
and/or
the
selling shareholders in the ordinary course of business.
47
CURRENCY
OF PRESENTATION
In this prospectus, we present our financial statements in
U.S. dollars. In this prospectus, references to
U.S. Dollars, dollars,
$, or ¢ are to the lawful currency
adopted by the United States of America, references to
British Pounds, pounds or
£ are to the lawful currency of the United
Kingdom, and references to euros or
are to the lawful currency adopted by the
certain member states of the EU, unless the context otherwise
requires.
This prospectus contains a translation of some British Pound
amounts into U.S. dollars at specified exchange rates
solely for your convenience. See Exchange Rate
Information below for information about the rates of
exchange between British Pounds and U.S. Dollars for the
periods indicated.
Our financial statements are prepared in accordance with
generally accepted accounting principles in the United States of
America (U.S. GAAP).
48
WHERE YOU
CAN FIND MORE INFORMATION
General
We have filed with the SEC, a registration statement on
Form F-3
under the Securities Act with respect to the ordinary shares,
preference shares, depositary shares, debt securities, warrants,
purchase contracts, purchase units offered by this prospectus.
This prospectus, filed as part of the registration statement,
does not contain all of the information set forth in the
registration statement and its exhibits and schedules, portions
of which have been omitted as permitted by the rules and
regulations of the SEC. For further information about us and the
securities, we refer you to the registration statement and to
its exhibits and schedules. Statements in this prospectus about
the contents of any contract, agreement or other document are
not necessarily complete and, in each instance, we refer you to
the copy of such contract, agreement or document filed as an
exhibit to the registration statement, with each such statement
being qualified in all respects by reference to the document to
which it refers.
We are subject to the informational requirements of the Exchange
Act. As a foreign private issuer (as defined in rules under the
Exchange Act), we are not required to comply with the periodic
reporting requirements imposed upon a U.S. domestic private
issuer of securities registered under, and are exempt from the
provisions of, the Exchange Act prescribing the content and
filing of proxy statements and the solicitation of proxies and
the provisions of Section 16 of the Exchange Act relating
to the reporting of securities transactions by certain persons
and the recovery of short-swing profits from the
purchase or sale of securities. Nonetheless, pursuant to a
provision in our bye-laws, we have filed and will continue to
file with the SEC all annual reports on
Form 10-K,
quarterly reports on
Form 10-Q
and current reports with respect to specified events on
Form 8-K,
as would be required of a U.S. domestic private issuer
subject to those particular requirements of the Exchange Act
(including the informational and timing requirements for filing
such reports). The audited consolidated financial statements and
financial schedules contained in such annual reports and the
unaudited quarterly financial information contained in such
quarterly reports have been and will be prepared in accordance
with U.S. GAAP and will include Managements
Discussion and Analysis of Financial Condition and Results of
Operations for the relevant periods. Anyone may inspect
any materials we file with the SEC at the Public Reference Room
the SEC maintains at 450 Fifth Street, N.W.,
Washington, D.C. 20549. You may obtain copies of all or any
part of these materials from the SEC upon the payment of certain
fees prescribed by the SEC. Please call the SEC at
1-888-SEC-0330 for further information on the public reference
rooms. Our SEC filings are also available to the public from the
SECs web site at www.sec.gov or from our web site at
www.aspen.bm. However, the information on our web site does not
constitute a part of this prospectus.
49
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. The SEC allows us to
incorporate by reference the information we file
with it, which means that we can disclose important information
to you by referring to those documents. The information
incorporated by reference is an important part of this
prospectus. Any statement contained in a document which is
incorporated by reference in this prospectus is automatically
updated and superseded if information contained in this
prospectus, or information that we later file with the SEC,
modifies or replaces this information. All documents we file
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act, after the initial filing of this registration
statement and until we sell all the securities shall be deemed
to be incorporated by reference into this prospectus. We
incorporate by reference the documents listed below:
(1) our Annual Report on
Form 10-K
for the year ended December 31, 2009;
(2) our Quarterly Reports on
Form 10-Q
for the quarterly periods ended March 31, 2010 and
June 30, 2010 and September 30, 2010; and
(3) Aspens Current Reports on
Form 8-K
filed on January 6, 2010, January 15, 2010,
February 12, 2010, April 30,2010, July 28, 2010
(only with respect to the information provided under the
headings Segment Reporting and Supplemental
Prior Period Segment Information under Item 7.01),
August 4, 2010, October 6, 2010 (excluding information
furnished pursuant to Item 9.01 of
Form 8-K),
November 4, 2010, November 12, 2010 and
December 10, 2010.
We will provide to each person to whom a copy of this prospectus
is delivered, upon request and at no cost to such person, a copy
of any or all of the information that has been incorporated by
reference in this prospectus but not delivered with this
prospectus. You may request a copy of such information by
writing or telephoning us at:
Aspen
Insurance Holdings Limited
Attention: Company Secretary
Maxwell Roberts Building, 1 Church Street
Hamilton HM 11
Bermuda
(441) 295-8201
You should rely only upon the information provided in this
prospectus or incorporated in this document by reference. We
have not authorized anyone to provide you with different
information. You should not assume that the information in this
prospectus, including any information incorporated by reference,
is accurate as of any date other than that on the front cover of
the document.
50
LEGAL
MATTERS
Certain matters as to U.S. law in connection with this
prospectus will be passed upon for us by Dewey &
LeBoeuf LLP, New York, New York. Certain matters as to Bermuda
law in connection with this prospectus will be passed upon for
us by Appleby, Hamilton, Bermuda. Additional legal matters may
be passed on for us, any underwriters, dealers or agents by
counsel which we will name in the applicable prospectus
supplement.
EXPERTS
The consolidated balance sheets of Aspen Insurance Holdings
Limited and its subsidiaries as of December 31, 2009 and
2008 and the related consolidated statements of operations,
shareholders equity, comprehensive income and cash flows
for the twelve months ended December 31, 2009, 2008 and
2007 and the financial statement schedules for Aspen Insurance
Holdings Limited and managements assessment of the
effectiveness of internal control over financial reporting as of
December 31, 2009 have been incorporated by reference in
this prospectus in reliance upon the reports of KPMG Audit Plc,
independent registered public accounting firm, incorporated by
reference herein, and upon the authority of said firm as experts
in accounting and auditing.
51
ENFORCEMENT
OF CIVIL LIABILITIES UNDER UNITED STATES FEDERAL SECURITIES
LAWS AND OTHER MATTERS
We are organized under the laws of Bermuda. In addition, some of
our directors and officers reside outside the United States, and
all or a substantial portion of their assets and our assets are
or may be located in jurisdictions outside the United States.
Therefore, it may be difficult for investors to effect service
of process within the United States upon our
non-U.S. directors
and officers or to recover against our company, or our
non-U.S. directors
and officers on judgments of U.S. courts, including
judgments predicated upon the civil liability provisions of the
U.S. federal securities laws. However, we may be served
with process in the United States with respect to actions
against us arising out of or in connection with violations of
U.S. federal securities laws relating to offers and sales
of notes made hereby by serving CT Corporation System, 111
Eighth Avenue, New York, New York 10011, our U.S. agent
appointed for that purpose.
We have been advised by Appleby, our Bermuda counsel, that there
is doubt as to whether the Courts of Bermuda would enforce
judgments of U.S. courts obtained in actions against us or
our directors and officers, as well as the experts named herein,
predicated upon the civil liability provisions of the
U.S. federal securities laws or original actions brought in
Bermuda against us or such persons predicated solely upon
U.S. federal securities laws. Further, we have been advised
by Appleby that there is no treaty in force between the United
States and Bermuda providing for the reciprocal recognition and
enforcement of judgments in civil and commercial matters. As a
result, whether a U.S. judgment would be enforceable in
Bermuda against us or our directors and officers depends on
whether the U.S. court that entered the judgment is
recognized by the Bermuda court as having jurisdiction over us
or our directors and officers, as determined by reference to
Bermuda conflict of law rules. A judgment debt from a
U.S. court that is final and for a sum certain based on
U.S. federal securities laws will not be enforceable in
Bermuda unless the judgment debtor had submitted to the
jurisdiction of the U.S. court, and the issue of submission
and jurisdiction is a matter of Bermuda (not U.S.) law.
In addition, and irrespective of jurisdictional issues, the
Bermuda courts will not enforce a U.S. federal securities
law that is either penal or contrary to public policy. It is the
advice of Appleby that an action brought pursuant to a public or
penal law, the purpose of which is the enforcement of a
sanction, power or right at the instance of the state in its
sovereign capacity, will not be entertained by a Bermuda court.
Some remedies available under the laws of
U.S. jurisdictions, including some remedies under
U.S. federal securities laws, would not be available under
Bermuda law or enforceable in a Bermuda court as they would be
contrary to Bermuda public policy. Further, no claim may be
brought in Bermuda against us or our directors and officers in
the first instance for violation of U.S. federal securities
laws because these laws have no extraterritorial jurisdiction
under Bermuda law and do not have force of law in Bermuda. A
Bermuda court may, however, impose civil liability on us or our
directors and officers if the facts alleged in a complaint
constitute or give rise to a cause of action under Bermuda law.
The BMA must approve all issuances and transfers of securities
of a Bermuda exempted company, other than in cases where the BMA
has granted a general permission. The BMA in its policy dated
June 1, 2005 provides that where any equity securities,
which would include our ordinary shares, of a Bermuda company
are listed on an appointed stock exchange (the NYSE is an
appointed stock exchange under Bermuda law), general permission
is given for the issue and subsequent transfer of any equity
securities of a company from/or to a non-resident, for so long
as any equity securities of the company remain so listed.
Notwithstanding the general permission, a letter of permission
was issued by the BMA prior to June 1, 2005 for the issue
and free transferability of the securities of the Company, which
are being offered pursuant to this prospectus, as long as the
ordinary shares of the Company are listed on an appointed stock
exchange, to and among persons who are non-residents of Bermuda
for exchange control purposes and for the issue and free
transferability of up to 20% of the ordinary shares to and among
persons who are residents of Bermuda for exchange control
purposes. This letter of permission remains in effect. At the
time of issue of each prospectus supplement, we will deliver to
and file a copy of this prospectus and the prospectus supplement
with the Registrar of Companies in Bermuda in accordance with
Bermuda law. The BMA and the Registrar of Companies accept no
responsibility for the financial soundness of any proposal or
for the correctness of any of the statements made or opinions
expressed in this prospectus or any prospectus supplement.
Under the Insurance Act 1978 of Bermuda, as amended, and related
regulations (the Insurance Act) each shareholder or
prospective shareholder will be responsible for obtaining prior
written approval of the BMA of his or her intention of becoming
a controller, directly or indirectly, of 10%, of Aspen Holdings
and ultimately Aspen Bermuda. The BMA has 45 days from the
date of service of such notice to object to such person becoming
a controller of Aspen Bermuda. The BMA may serve a notice of
objection on any proposed or existing controller of Aspen
Bermuda if it appears to the BMA that the person is not fit and
proper to be such a controller.
52
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Expenses
of Issuance and Distribution
The estimated expenses in connection with the issuance and
distribution of the securities being registered, other than
underwriting compensation, are set forth in the following table.
Each amount is estimated based on an assumption of the offering
of $1 billion of securities.
|
|
|
|
|
Securities and Exchange Commission Registration Fee
|
|
|
(1
|
)
|
Trustees Fees and Expenses
|
|
$
|
100,000
|
|
Accountants Fees and Expenses
|
|
|
750,000
|
|
Legal Fees and Expenses
|
|
|
1,000,000
|
|
Printing and Engraving Fees
|
|
|
60,000
|
|
Rating Agency Fees
|
|
|
1,000,000
|
|
Miscellaneous Expenses
|
|
|
90,000
|
|
|
|
|
|
|
Total Expenses
|
|
$
|
3,000,000
|
|
|
|
|
|
|
|
|
|
(1)
|
|
Deferred in accordance with Rules 456(b) and 457(r) of the
Securities Act of 1933, except for $561.68 that has already been
paid with respect to aggregate $7,877,700 aggregate initial
offering price of securities that were previously registered
pursuant to Registration Statement
333-148245
and were not sold thereunder.
|
|
|
ITEM 8.
|
Indemnification
of Directors and Officers
|
Bye-Law 145 of the Companys bye-laws provides, among other
things, that, subject to certain provisos, the Companys
directors, officers or any other person appointed to a committee
of the board of directors and any resident representative (and
their respective heirs, executors or administrators;
collectively, the Indemnified Persons) shall be
indemnified and held harmless out of the assets of the Company
against all liabilities, loss, damage or expense (including but
not limited to liabilities under contract, tort and statute or
any applicable foreign law or regulation and all reasonable
legal and other costs and expenses properly payable) incurred or
suffered by him by or by reason of any act done, conceived in or
omitted in the conduct of the Companys business or in the
discharge of his duties and the indemnity contained in Bye-Law
145 shall extend to the Indemnified Persons of the Company
acting in any office or trust in the reasonable belief that he
has been appointed or elected to such office or trust
notwithstanding any defect in such appointment or election
provided always that the indemnity contained in this Bye-Law 145
shall not extend to any matter which would render it void under
the Companies Act.
Bye-Law 149 of the Companys bye-laws provides that each
shareholder and the Company agree to waive any claim or right of
action he or it may at any time have, whether individually or by
or in the right of the Company, against any director or officer
of the Company on account of any action taken by such director
or officer or the failure of such director or officer to take
any action in the performance of his duties with or for the
Company, provided, however, that such waiver shall not apply to
any claims or rights of action arising out of the fraud of such
director or officer or to recover any gain, personal profit or
advantage to which such director or officer is not legally
entitled.
The Companies Act provides that a Bermuda company may indemnify
its directors in respect of any loss arising or liability
attaching to them as a result of any negligence, default, breach
of duty or breach of trust of which they may be guilty. However,
the Companies Act also provides that any provision, whether
contained in the Companys bye-laws or in a contract or
arrangement between the Company and the director, indemnifying
such director against any liability which would attach to him in
respect of his fraud or dishonesty will be void.
The Company has purchased directors and officers liability
insurance policies. Such insurance will be available to the
Companys directors and officers in accordance with its
terms. In addition, certain directors may be covered by
directors and officers liability insurance policies purchased by
their respective employers, subject to the limitation of the
policy terms.
Any underwriting agreement that the Company may enter into in
connection with an offering of securities pursuant to this
registration statement may include provisions providing that the
underwriters are obligated, under
53
certain circumstances, to indemnify the directors, certain
officers and the controlling persons of the Company against
certain liabilities under the Securities Act of 1933, as amended.
Reference is also made to the Third Amended and Restated
Registration Rights Agreement, dated as of November 14,
2003, filed as Exhibit 4.10 hereto, which provides that,
under certain circumstances (i) the Company is obligated to
indemnify the selling shareholders and (ii) the selling
shareholders are obligated to indemnify the Company, against
certain liabilities and legal expenses arising from a violation
of the Securities Act of 1933, as amended.
A list of Exhibits filed herewith is contained on the Index to
Exhibits and is incorporated herein by reference.
The undersigned registrant hereby undertakes:
(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, as amended;
(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 Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 per-cent 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 set forth in the registration statement.
provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the registration statement is on
Form F-3
and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the registrant
pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in this
registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, as amended, 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) To file a post-effective amendment to the registration
statement to include any financial statements required by
Item 8.A. of
Form 20-F
at the start of any delayed offering or throughout a continuous
offering. Financial statements and information otherwise
required by Section 10(a)(3) of the Act need not be
furnished, provided, that the registrant includes in the
prospectus, by means of a post-effective amendment, financial
statements required pursuant to this paragraph (a)(4) and other
information necessary to ensure that all other information in
the prospectus is at least as current as the date of those
financial statements. Notwithstanding
54
the foregoing, with respect to registration statements on
Form F-3,
a post-effective amendment need not be filed to include
financial statements and information required by
Section 10(a)(3) of the Act or
Rule 3-19
of this chapter if such financial statements and information are
contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the
Form F-3.
(5) 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 the registration
statement as of the date the filed prospectus was deemed part of
and included in the 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 the 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
the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement
or prospectus that is part of the 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 the registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date; or
(6) 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.
The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933 as
amended, each filing of the registrants annual report
pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plans annual report pursuant to
Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration
statement 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.
55
The undersigned registrant hereby undertakes to supplement the
prospectus, after the expiration of the subscription period, to
set forth the results of the subscription offer, the
transactions by the underwriters during the subscription period,
the amount of unsubscribed securities to be purchased by the
underwriters, and the terms of any subsequent reoffering
thereof. If any public offering by the underwriters is to be
made on terms differing from those set forth on the cover page
of the prospectus, a post-effective amendment will be filed to
set forth the terms of such offering.
The undersigned registrant hereby undertakes to provide to the
underwriter at the closing specified in the underwriting
agreements, certificates in such denominations and registered in
such names as required by the underwriter to permit prompt
delivery to each purchaser.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, as amended, may be permitted
to directors, officers and controlling persons of the registrant
pursuant to the provisions set forth or described in Item 8
of this registration statement, or otherwise, the registrant has
been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act of 1933, as amended, and is
therefore unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by a registrant of expenses incurred or paid by a director,
officer or controlling person of such registrant in the
successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant
will, unless in the opinion of their counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by them is against public policy as expressed in
the Securities Act of 1933, as amended, and will be governed by
the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, as amended, the information omitted from
the form of prospectus filed as part of this registration
statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities
Act of 1933, as amended, shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, as amended, each post-effective
amendment that contains a form of prospectus 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.
The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of
the trustee to act under subsection (a) of Section 310
of the Trust Indenture Act of 1939 in accordance with the
rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Trust Indenture Act
of 1939.
56
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on
Form F-3
and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in
Hamilton, Bermuda, on the 15th day of December 2010.
Aspen Insurance Holdings Limited
|
|
|
|
By:
|
/s/ Christopher
OKane
|
Name: Christopher OKane
|
|
|
|
Title:
|
Chief Executive Officer
|
The undersigned do hereby constitute and appoint Christopher
OKane and Richard Houghton, and each of them, our true and
lawful attorneys and agents, to sign for us or any of us in our
names and in the capacities indicated below, any and all
amendments (including post-effective amendments) to this
Registration Statement, or any related registration statement
that is to be effective upon filing pursuant to
Rule 462 (b) under the Securities Act of 1933, as
amended, or any documents required pursuant to the Bermuda
Companies Act 1981, and to file the same, with all exhibits
thereto and other documents required in connection therewith,
and to do any and all acts and things in our names and in the
capacities indicated below, which said attorneys and agents, or
either of them, may deem necessary or advisable to enable said
corporation to comply with the Securities Act of 1933, as
amended, and any rules, regulations, and requirements of the
Securities and Exchange Commission or requirements of the
Bermuda Companies Act of 1981, in connection with this
Registration Statement; and we do hereby ratify and confirm all
that the said attorneys and agents, or either of them, shall do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the
following persons in the capacities indicated on the
15th day of December 2010.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ Glyn
Jones
Glyn
Jones
|
|
Chairman and Director
|
|
|
|
/s/ Christopher
OKane
Christopher
OKane
|
|
Chief Executive Officer and Director
(Principal Executive Officer)
|
|
|
|
/s/ Richard
Houghton
Richard
Houghton
|
|
Chief Financial Officer and Director
(Principal Financial Officer)
(Principal Accounting Officer)
|
|
|
|
/s/ Julian
Cusack
Julian
Cusack
|
|
Chief Risk Officer and Director
|
|
|
|
/s/ Liqauat
Ahamed
Liqauat
Ahamed
|
|
Director
|
|
|
|
/s/ Matthew
Botein
Matthew
Botein
|
|
Director
|
|
|
|
/s/ Richard
Bucknall
Richard
Bucknall
|
|
Director
|
|
|
|
/s/ John
Cavoores
John
Cavoores
|
|
Director
|
|
|
|
/s/ Ian
Cormack
Ian
Cormack
|
|
Director
|
|
|
|
/s/ Heidi
Hutter
Heidi
Hutter
|
|
Director
|
57
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ David
Kelso
David
Kelso
|
|
Director
|
|
|
|
/s/ Peter
OFlinn
Peter
OFlinn
|
|
Director
|
|
|
|
/s/ Andrew
Noga
Andrew
Noga
(authorized representative in the United States)
|
|
|
58
EXHIBIT INDEX
|
|
|
|
|
Number
|
|
Description of Document
|
|
|
*1
|
.1
|
|
Form of Underwriting Agreement relating to ordinary shares,
preference shares, depositary shares, debt securities and
warrants of the Company
|
|
*1
|
.2
|
|
Form of Underwriting Agreement relating to purchase contracts
|
|
*1
|
.3
|
|
Form of Underwriting Agreement relating to purchase units
|
|
3
|
.1
|
|
Certificate of Incorporation and Memorandum of Association of
Aspen Insurance Holdings Limited (incorporated herein by
reference to Exhibit 3.1 to Aspen Insurance Holdings
Limited 2003 Registration Statement on
Form F-1
(Registration
No. 333-110435))
|
|
3
|
.2
|
|
Amendments to the Memorandum of Association (incorporated herein
by reference to exhibit 3.2 of the Companys Current
Report on
Form 8-K
filed on May 4, 2009)
|
|
3
|
.3
|
|
Amended and Restated Bye-laws (incorporated herein by reference
to Exhibit 3.1 to the Companys Current Report on
Form 8-K
filed on May 4, 2009)
|
|
4
|
.1
|
|
Specimen Ordinary Share Certificate (incorporated herein by
reference to similarly numbered exhibit to the Companys
2003 Registration Statement on
Form F-1
(Registration
No. 333-110435))
|
|
4
|
.2
|
|
Indenture between Aspen Insurance Holdings Limited and Deutsche
Bank Trust Company Americas, as trustee dated as of
August 16, 2004 (incorporated herein by reference to
Exhibit 4.3 to Aspen Insurance Holdings Limited 2004
Registration Statement on
Form F-1
(Registration
No. 333-119314)).
The form or forms of senior debt securities and any supplemental
indentures with respect to each particular offering will be
filed as an exhibit to a Current Report on
Form 8-K
and incorporated herein by reference.
|
|
4
|
.3
|
|
Form of Subordinated Indenture, to be entered into between the
Company and Deutsche Bank Trust Company Americas, as
trustee (incorporated herein by reference to Exhibit 4.3 to
the Companys Registration Statement on
Form F-3
(Registration
No. 333-122571)).
The form or forms of subordinated debt securities and any
supplemental indentures with respect to each particular offering
will be filed as an exhibit to a Current Report on
Form 8-K
and incorporated herein by reference.
|
|
*4
|
.4
|
|
Form of Certificate of Designation, Preferences and Rights
relating to preference shares
|
|
*4
|
.5
|
|
Form of Standard Share Warrant Provisions
|
|
*4
|
.6
|
|
Form of Standard Debt Warrant Provisions
|
|
*4
|
.7
|
|
Form of Deposit Agreement
|
|
*4
|
.8
|
|
Form of Standard Purchase Contract Provisions
|
|
4
|
.9
|
|
Amended and Restated Shareholders Agreement, dated as of
September 30, 2003 among the Company and each of the
persons listed on Schedule A thereto (incorporated herein
by reference to Exhibit 10.1 to the Companys 2003
Registration Statement on
Form F-1
(Registration
No. 333-110435))
|
|
4
|
.10
|
|
Third Amended and Restated Registration Rights Agreement dated
as of November 14, 2003 among the Company and each of the
persons listed on Schedule 1 thereto (incorporated herein
by reference to Exhibit 10.2 to the Companys 2003
Registration Statement on
Form F-1
(Registration
No. 333-110435))
|
|
4
|
.11
|
|
Form of Shareholders Agreement between the Company and
certain employee and/or director shareholders and/or
optionholders (incorporated herein by reference to
Exhibit 4.11 to the Companys Registration Statement
on
Form F-3
(Registration
No. 333-122571))
|
|
4
|
.12
|
|
Form of First Amendment to Shareholders Agreement between
the Company and certain employee and/or director shareholders
and/or optionholders, dated as of May 4, 2007 (incorporated
herein by reference to Exhibit 10.3 to the Companys
Current Report on
Form 8-K
filed on May 7, 2007)
|
|
4
|
.13
|
|
Amended and Restated Instrument Constituting Options to
Subscribe for Shares in Aspen Insurance Holdings Limited, dated
September 30, 2005 (incorporated herein by reference to
Exhibit 4.1 to the Companys Current Report on
Form 8-K
filed on September 30, 2005)
|
|
5
|
.1
|
|
Opinion of Dewey & LeBoeuf LLP as to U.S. law
|
|
5
|
.2
|
|
Opinion of Appleby as to Bermuda law
|
|
12
|
.1
|
|
Statement regarding Computation of Ratios of Earnings to Fixed
Charges
|
|
23
|
.1
|
|
Consent of Independent Registered Public Accounting
Firm KPMG Audit Plc
|
|
23
|
.2
|
|
Consent of Dewey & LeBoeuf LLP (included in the
Opinion filed as Exhibit 5.1)
|
59
|
|
|
|
|
Number
|
|
Description of Document
|
|
|
23
|
.3
|
|
Consent of Appleby (included in the Opinion filed as
Exhibit 5.2)
|
|
24
|
.1
|
|
Powers of Attorney of officers and directors (included on
signature page of the Registration Statement)
|
|
25
|
.1
|
|
Statement of Eligibility of Deutsche Bank Trust Company
Americas on
Form T-1,
as trustee for the Senior Indenture
|
|
25
|
.2
|
|
Statement of Eligibility of Deutsche Bank Trust Company
Americas on
Form T-1,
as trustee for the Subordinated Indenture
|
|
99
|
.1
|
|
Form F-N
|
|
|
|
*
|
|
To be filed, if necessary, subsequent to the effectiveness of
this registration statement by an amendment to this registration
statement or incorporated by reference pursuant to a Current
Report on
Form 8-K
in connection with an offering of securities.
|
60
Aspen Insurance (NYSE:AHL)
Historical Stock Chart
From Sep 2024 to Oct 2024
Aspen Insurance (NYSE:AHL)
Historical Stock Chart
From Oct 2023 to Oct 2024