As filed with the Securities and Exchange Commission on August 10, 2023
Registration Statement No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
F&G Annuities & Life, Inc.
(Exact name of registrant as specified in its charter)
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| Delaware | 6311 | 85-2487422 |
| (State or other jurisdiction of incorporation or organization) | (Primary Standard Industrial Classification Code Number) | (I.R.S. Employer Identification Number) |
801 Grand Avenue, Suite 2600
Des Moines, Iowa 50309
(515) 330-3340
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive
offices)
Jodi Ahlman
General Counsel & Secretary
F&G Annuities & Life, Inc.
801 Grand Avenue, Suite 2600
Des Moines, Iowa 50309
(515) 330-3340
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copy to:
Dwight Yoo
Skadden, Arps, Slate, Meagher & Flom LLP
One Manhattan West
New York, New York 10001
(212) 735-3000
Approximate date of commencement of proposed sale of the securities to the public: As soon as practicable after this registration statement becomes effective.
If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. ☐
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) 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. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) 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. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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| Large accelerated filer | ☐ | Accelerated filer | ☐ |
| Non-accelerated filer | ☒ | Smaller reporting company | ☐ |
| | Emerging growth company | ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
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| Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer) | ☐ |
| Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) | ☐ |
TABLE OF ADDITIONAL REGISTRANTS
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| Exact name of registrant as specified in its charter* | | State or other jurisdiction of incorporation or organization | | Primary Standard Industrial Classification Code Number | | I.R.S. Employer Identification Number |
| CF Bermuda Holdings Limited | | Bermuda | | 6311 | | |
| FGL US Holdings Inc. | | Delaware | | 6311 | | 82-2796563 |
| Fidelity & Guaranty Life Business Services, Inc. | | Delaware | | 6311 | | 43-1914674 |
| Fidelity & Guaranty Life Holdings, Inc. | | Delaware | | 6311 | | 48-1245662 |
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* The address and telephone number of each additional registrant is c/o F&G Annuities & Life, Inc., 801 Grand Avenue, Suite 2600, Des Moines, Iowa 50309, tel. (515) 330-3340.
The registrants hereby amend this registration statement on such date or dates as may be necessary to delay its effective date until the registrants shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. We may not sell these securities or consummate the exchange offer until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not an offer to buy these securities in any state where the offer or sale is not permitted.
Subject to Completion, dated August 10, 2023
PROSPECTUS
F&G Annuities & Life, Inc.
Offer to Exchange
$500,000,000 aggregate principal amount of 7.400% Senior Notes due 2028
(CUSIP Nos. 30190A AA2 and U3152B AA0)
for
$500,000,000 aggregate principal amount of 7.400% Senior Notes due 2028
(CUSIP No. 30190A AC8)
that have been registered under the Securities Act of 1933, as amended (the “Securities Act”)
The exchange offer will expire at 5:00 p.m.,
New York City time, on , 2023, unless extended.
We hereby offer, upon the terms and subject to the conditions set forth in this prospectus and the accompanying letter of transmittal (which together constitute the “exchange offer”), to exchange up to $500,000,000 aggregate principal amount of our outstanding 7.400% Senior Notes due 2028 (CUSIP Nos. 30190A AA2 and U3152B AA0) (the “original notes”) for a like principal amount of our 7.400% Senior Notes due 2028 that have been registered under the Securities Act of 1933 (CUSIP No. 30190A AC8) (the “exchange notes”). When we use the term “notes” in this prospectus, the term includes the original notes and the exchange notes unless otherwise indicated or the context otherwise requires. The terms of the exchange offer are summarized below and are more fully described in this prospectus.
The terms of the exchange notes are identical to the terms of the original notes, except that the transfer restrictions and registration rights (including additional interest upon a registration default) provisions applicable to the original notes do not apply to the exchange notes.
The original notes are, and the exchange notes will be, fully and unconditionally guaranteed, jointly and severally, on an unsecured unsubordinated basis by the guarantors.
We will accept for exchange any and all original notes validly tendered and not validly withdrawn prior to 5:00 p.m., New York City time, on , 2023, unless extended (the “expiration date”).
You may withdraw tenders of the original notes at any time prior to the expiration of the exchange offer.
We will not receive any proceeds from the exchange offer. The original notes surrendered in exchange for the exchange notes will be retired and cancelled and will not be reissued. Accordingly, issuance of the exchange notes will not result in any increase in our outstanding indebtedness.
The exchange of original notes for exchange notes pursuant to the exchange offer will not be a taxable transaction for U.S. federal income tax purposes. See “U.S. Federal Income Tax Considerations.” No public market currently exists for the original notes. We do not intend to list the exchange notes on any securities exchange and, therefore, no active public market is anticipated.
Each broker-dealer that receives exchange notes for its own account pursuant to the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of such exchange notes. The letter of transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of exchange notes received in exchange for original notes where such original notes were acquired by such broker-dealer as a result of market-making activities or other trading activities. We have agreed that, for a period of 180 days after the expiration date, we will make this prospectus available to any broker-dealer for use in connection with any such resale. See “Plan of Distribution.” See “Risk Factors” beginning on page 8 to read about important factors you should consider before tendering your original notes. Neither the Securities and Exchange Commission nor any state securities commission 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.
The date of this prospectus is , 2023.
TABLE OF CONTENTS
We are responsible only for the information contained in or incorporated by reference into this prospectus. We have not authorized anyone to provide you with different or additional information. We take no responsibility for any other information or representations that others may give you. This prospectus is an offer to sell only the securities it describes, but only under circumstances and in jurisdictions where it is lawful to do so. The information incorporated by reference into or contained in this prospectus may only be accurate on the date of the relevant incorporated document or of this prospectus, as the case may be.
Rather than repeating certain information in this prospectus that we have already included in reports filed with the Securities and Exchange Commission (the “SEC”), this prospectus incorporates important business and financial information about us that is not included in or delivered with this prospectus. See “Incorporation of Certain Documents by Reference.” Copies of these documents, except for certain exhibits and schedules, will be made available to you without charge upon written or oral request to: F&G Annuities & Life, Inc.
801 Grand Avenue, Suite 2600
Des Moines, Iowa 50309
(515) 330-3340
In order to obtain timely delivery of such materials, you must request information from us no later than five business days prior to the expiration of the exchange offer.
No information in this prospectus constitutes legal, business or tax advice, and you should not consider it as such. You should consult your own attorney, business advisor and tax advisor for legal, business and tax advice regarding the exchange offer.
FORWARD-LOOKING STATEMENTS
This prospectus, including the information incorporated by reference herein, contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking statements are intended to enhance the reader’s ability to assess F&G’s future financial and business performance.
Some of the forward-looking statements can be identified by the use of terms such as “believes”, “expects”, “may”, “will”, “should”, “could”, “seeks”, “intends”, “plans”, “estimates”, “anticipates” or other comparable terms. However, not all forward-looking statements contain these identifying words. These forward-looking statements include all matters that are not related to present facts or current conditions or that are not historical facts. They appear in a number of places throughout this prospectus and include statements regarding our intentions, beliefs or current expectations concerning, among other things, our consolidated results of operations, financial condition, liquidity, prospects and growth strategies and the industries in which we operate and including, without limitation, statements relating to our future performance.
Forward-looking statements are subject to known and unknown risks and uncertainties, many of which are beyond our control. If any of those risks and uncertainties materialize, actual results could differ materially from those discussed in any such forward-looking statement. Additional factors that could cause actual results to differ materially from those discussed in forward-looking statements are those discussed under the heading “Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2022 and in any other documents that are incorporated by reference into this prospectus. See “Where You Can Find More Information” and “Incorporation of Certain Information by Reference” for information about how to obtain copies of those documents.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference the information we file with the SEC, which means we can disclose important information to you by referring you to those documents (other than information that is deemed “furnished” to the SEC). The information we incorporate by reference is considered to be part of this prospectus.
We incorporate by reference into this prospectus the following documents filed with the SEC (except for information in these documents or filings that is deemed “furnished” and not “filed” in accordance with the SEC rules, including pursuant to Item 2.02 or 7.01 of Form 8-K, and no such information shall be deemed specifically incorporated by reference herein):
•our Annual Report on Form 10-K for the year ended December 31, 2022, filed with the SEC on February 27, 2023, as updated and supplemented by our Form 10-K/A filed with the SEC on April 27, 2023 and our Current Report on Form 8-K filed with the SEC on July 13, 2023 (only with respect to Item 8.01 information); •our Definitive Proxy Statement on Schedule 14A, filed with the SEC on June 2, 2023 (solely to the extent incorporated by reference into Part III of our Annual Report on Form 10-K for the year ended December 31, 2022); •our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2023, filed with the SEC on May 9, 2023; •our Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2023, filed with the SEC on August 9, 2023; and •our Current Reports on Form 8-K filed with the SEC on, January 13, 2023, February 21, 2023, March 10, 2023, April 3, 2023, April 24, 2023, May 3, 2023 (only with respect to Item 8.01 information), June 1, 2023, June 30, 2023, July 17, 2023 and August 8, 2023 (only with respect to Item 8.01 information). You may request a copy of these filings at no cost, by writing or telephoning us at the following address or telephone number:
F&G Annuities & Life, Inc.
801 Grand Avenue, Suite 2600
Des Moines, Iowa 50309
(515) 330-3340
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports and other information with the SEC. Our SEC filings are available to the public from the SEC’s website at http://www.sec.gov. This reference to the SEC’s website is an inactive textual reference only, and is not a hyperlink.
In order to obtain timely delivery of such materials, you must request information from us no later than five business days prior to the expiration of the exchange offer.
SUMMARY
The following summary highlights selected information included in or incorporated by reference into this prospectus. It does not contain all of the information that you should consider before making an investment decision. You should carefully read this prospectus in its entirety, including the documents incorporated by reference herein, especially the risks of investing in our notes discussed under the heading “Risk Factors” herein and in our Annual Report on Form 10-K for the year ended December 31, 2022, as well as the consolidated financial statements and related notes and other information incorporated by reference into this prospectus. We are a “controlled company” under the New York Stock Exchange (“NYSE”) corporate governance standards and, as a result, rely on exemptions from certain corporate governance requirements. See “Risk Factors.” We use the following terms to refer to the items indicated:
•the “Company,” “F&G,” “we,” “our” and “us,” unless the context otherwise requires, refer to F&G Annuities & Life, Inc., a Delaware corporation, and its consolidated subsidiaries;
•the “Issuer” refers only to F&G Annuities & Life, Inc.;
•“FGL Insurance” refers to Fidelity & Guaranty Life Insurance Company, an Iowa domiciled life insurance company and an indirect wholly owned subsidiary of the Issuer; and
•“FGL NY Insurance” refers to Fidelity & Guaranty Life Insurance Company of New York, a New York domiciled life insurance company, a direct wholly owned subsidiary of FGL Insurance and an indirect wholly owned subsidiary of the Issuer.
The Company
We are a leading provider of insurance solutions serving retail annuity and life customers and institutional clients. Through our insurance subsidiaries, including FGL Insurance and FGL NY Insurance, we market a broad portfolio of deferred annuities (fixed indexed annuities and multi-year guarantee annuities or other fixed rate annuities), immediate annuities, indexed universal life insurance, funding agreements (through funding agreement-backed notes issuances and the Federal Home Loan Bank of Atlanta) and pension risk transfer solutions.
Our executive offices are located at 801 Grand Avenue, Suite 2600, Des Moines, Iowa 50309 (telephone number: (515) 330-3340).
Summary of the Exchange Offer
On January 13, 2023, in connection with a private placement, we issued $500,000,000 aggregate principal amount of 7.400% Senior Notes due 2028. As part of the issuance, we entered into a registration rights agreement, dated as of January 13, 2023, with respect to the original notes with the initial purchasers of the private placement, in which we agreed, among other things, to deliver this prospectus to you and to use our commercially reasonable efforts to complete an exchange offer for the original notes. Below is a summary of the exchange offer.
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| Securities offered | | $500,000,000 aggregate principal amount of 7.400% Senior Notes due 2028 that have been registered under the Securities Act. The terms of the exchange notes are identical to the terms of the original notes, except that the transfer restrictions and registration rights (including additional interest upon a registration default) provisions applicable to the original notes do not apply to the exchange notes. |
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| Exchange offer | | We are offering to exchange up to $500,000,000 aggregate principal amount of the outstanding original notes for a like principal amount of the exchange notes. You may tender original notes only in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. We will issue exchange notes promptly after the expiration of the exchange offer. In order to be exchanged, an original note must be validly tendered, not validly withdrawn and accepted. Subject to the satisfaction or waiver of the conditions of the exchange offer, all original notes that are validly tendered and not validly withdrawn will be exchanged. As of the date of this prospectus, $500,000,000 aggregate principal amount of original notes is outstanding. The original notes were issued under an indenture, dated as of January 13, 2023, among the Company, the guarantors party thereto and Citibank, N.A., as trustee (the “trustee”), as amended and supplemented by a first supplemental indenture thereto establishing the terms of the notes, dated as of January 13, 2023, and a second supplemental indenture, dated as of January 26, 2023, between CF Bermuda Holdings Limited (“CF Bermuda”) and the trustee adding CF Bermuda as a guarantor (together, the “indenture”). If all outstanding original notes are tendered for exchange, there will be $500,000,000 aggregate principal amount of 7.400% Senior Notes due 2028 (that have been registered under the Securities Act) outstanding after the exchange offer. |
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| Expiration date; Tenders | | The exchange offer will expire at 5:00 p.m., New York City time, on , 2023, unless we extend the period of time during which the exchange offer is open. If we materially change the terms of the exchange offer, we will extend the period of time during which the exchange offer is open if necessary so that at least five business days remain in the exchange offer period following notice of the material change. By signing or agreeing to be bound by the letter of transmittal, you will represent, among other things, that: •you are not an affiliate of ours; •you are acquiring the exchange notes in the ordinary course of your business; •you are not participating, do not intend to participate and have no arrangement or understanding with anyone to participate in the distribution (within the meaning of the Securities Act) of the exchange notes; and •if you are a broker-dealer that will receive exchange notes for its own account in exchange for original notes that were acquired as a result of market-making activities or other trading activities, you will deliver a prospectus (or to the extent permitted by law, make available a prospectus to purchasers) in connection with any resale of such exchange notes. For further information regarding resales of the exchange notes by broker-dealers, see “Plan of Distribution.” |
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| Accrued interest on the exchange notes and original notes | | The exchange notes will bear interest from January 13, 2023. If your original notes are accepted for exchange, you will receive interest on the corresponding exchange notes and not on such original notes, provided that you will receive interest on the original notes and not the exchange notes if and to the extent the record date for such interest payment occurs prior to completion of the exchange offer. Any original notes not tendered will remain outstanding and continue to accrue interest according to their terms. |
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| Conditions to the exchange offer | | The exchange offer is subject to customary conditions. If we materially change the terms of the exchange offer, we will resolicit tenders of the original notes and extend the exchange offer period if necessary so that at least five business days remain in the exchange offer period following notice of any such material change. See “The Exchange Offer—Conditions to the Exchange Offer” for more information regarding conditions to the exchange offer. |
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| Procedures for tendering original notes | | A tendering holder must, at or prior to the expiration date: •transmit a properly completed and duly executed letter of transmittal, including all other documents required by the letter of transmittal, to the exchange agent at the address listed in this prospectus; or •if original notes are tendered in accordance with the book-entry procedures described in this prospectus, transmit an agent’s message to the exchange agent at the address listed in this prospectus. |
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| Special procedures for beneficial holders | | If you are a beneficial holder of original notes that are registered in the name of your broker, dealer, commercial bank, trust company or other nominee, and you wish to tender in the exchange offer, you should promptly contact the person in whose name your original notes are registered and instruct that nominee to tender on your behalf. See “The Exchange Offer—Procedures for Tendering.” |
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| Withdrawal rights | | Tenders may be withdrawn at any time before 5:00 p.m., New York City time, on the expiration date. See “The Exchange Offer—Withdrawal Rights.” |
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| Acceptance of original notes and delivery of exchange notes | | Subject to the conditions stated in the section “The Exchange Offer—Conditions to the Exchange Offer” of this prospectus, we will accept for exchange any and all original notes that are properly tendered in the exchange offer and not validly withdrawn before 5:00 p.m., New York City time, on the expiration date. The exchange notes will be delivered promptly after the expiration date. See “The Exchange Offer—Terms of the Exchange Offer.” |
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| U.S. Federal Income Tax Considerations | | The exchange of original notes for exchange notes pursuant to the exchange offer will not be a taxable transaction for U.S. federal income tax purposes. See “U.S. Federal Income Tax Considerations.” |
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| Exchange agent | | D.F. King & Co. is serving as exchange agent (the “exchange agent”) in connection with the exchange offer. The address and telephone number of the exchange agent are listed under the heading “The Exchange Offer—Exchange Agent.” |
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| Use of proceeds; Expenses | | We will not receive any proceeds from the issuance of exchange notes in the exchange offer. We have agreed to pay all fees and expenses incident to the exchange offer (including the expenses of one counsel for the holders of the original notes and the exchange notes) other than commissions or concessions of any brokers or dealers. |
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| Resales | | Based on existing interpretations of the Securities Act by the SEC staff set forth in several no-action letters to third parties, and subject to the immediately following sentence, we believe exchange notes issued under the exchange offer in exchange for original notes may be offered for resale, resold and otherwise transferred by the holders thereof (other than holders that are broker-dealers) without further compliance with the registration and prospectus delivery provisions of the Securities Act. However, any holder of original notes that is an affiliate of ours or that intends to participate in the exchange offer for the purpose of distributing any of the exchange notes, or any broker-dealer that purchased any of the original notes from us for resale pursuant to Rule 144A or any other available exemption under the Securities Act, (i) will not be able to rely on the interpretations of the SEC staff set forth in the above mentioned no-action letters, (ii) will not be entitled to tender its original notes in the exchange offer and (iii) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any sale or transfer of the original notes unless such sale or transfer is made pursuant to an exemption from such requirements. Any broker-dealer that will receive exchange notes for its own account in exchange for original notes that were acquired as a result of market-making activities or other trading activities must deliver a prospectus (or to the extent permitted by law, make available a prospectus to purchasers) in connection with any resale of such exchange notes. |
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| Consequences of not exchanging original notes | | If you do not exchange your original notes in the exchange offer, you will continue to be subject to the restrictions on transfer described in the legend on your original notes. In general, you may offer or sell your original notes only: •if they are registered under the Securities Act and applicable state securities laws; •if they are offered or sold under an exemption from registration under the Securities Act and applicable state securities laws; or •if they are offered or sold in a transaction not subject to the Securities Act and applicable state securities laws. Although your original notes will continue to accrue interest, they will generally retain no rights under the registration rights agreement. We currently do not intend to register the original notes under the Securities Act. Under some circumstances, holders of the original notes, including holders that are not permitted to participate in the exchange offer or that may not freely sell exchange notes received in the exchange offer, may require us to file, and to cause to become effective, a shelf registration statement covering resales of original notes by these holders. For more information regarding the consequences of not tendering your original notes and our obligations to file a shelf registration statement, see “The Exchange Offer—Consequences of Exchanging or Failing to Exchange the Original Notes” and “The Exchange Offer—Registration Rights Agreement.” |
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| Risk factors | | For a discussion of significant factors you should consider carefully before deciding to participate in the exchange offer, see “Risk Factors” beginning on page 8 of this prospectus. |
Summary of the Terms of the Exchange Notes
The following is a summary of the terms of the exchange notes. The terms of the exchange notes are identical to the terms of the original notes, except that the transfer restrictions and registration rights (including additional interest upon a registration default) provisions applicable to the original notes do not apply to the exchange notes. The exchange notes will evidence the same debt as the original notes and will be governed by the same indenture. Certain of the terms and conditions described below are subject to important limitations and exceptions. For a more detailed description of the terms and conditions of the exchange notes, see “Description of the Notes.” | | | | | | | | |
| Issuer | | F&G Annuities & Life, Inc. |
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| Securities offered | | $500,000,000 aggregate principal amount of 7.400% Senior Notes due 2028. |
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| Maturity date | | January 13, 2028. |
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| Interest | | Interest on the exchange notes will accrue at a rate of 7.400% per year. |
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| Interest rate adjustment | | The interest rate payable on the exchange notes will be subject to adjustment from time to time if either S&P or Fitch (or a substitute rating agency therefor) downgrades (or downgrades and subsequently upgrades) the credit ratings assigned to the notes. See “Description of the Notes—Interest Rate Adjustment upon Ratings Action.” |
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| Interest payment dates | | The Issuer will pay interest on the exchange notes semi-annually in arrears on January 13 and July 13 of each year, beginning on July 13, 2023. Interest will accrue on the exchange notes from January 13, 2023. |
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| Ranking | | The exchange notes and the guarantees will be the senior unsecured obligations of the Issuer and the guarantors (the “obligor group”) and will rank senior in right of payment to all obligations of the obligor group that are expressly subordinated in right of payment to the exchange notes and the guarantees and equally in right of payment with all of the existing and future senior unsecured indebtedness of the obligor group, including the obligations of the obligor group under the mirror revolving note we entered into with Fidelity National Financial, Inc. in December 2020 (the “FNF Credit Facility”), the Credit Agreement (as defined below) and the 5.50% F&G Notes (as defined below). In addition, the exchange notes and guarantees will effectively rank junior in right of payment to any future secured indebtedness of the obligor group to the extent of the value of the assets securing such indebtedness. As of June 30, 2023, the obligor group had no secured indebtedness that would have effectively ranked senior in right of payment to the exchange notes and the guarantees, $1.1 billion of unsecured indebtedness that would have ranked equally in right of payment with the exchange notes and the guarantees and no subordinated indebtedness that would have ranked junior in right of payment to the exchange notes and the guarantees. See “Risk Factors.” |
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| Structural subordination | | The Issuer is a holding company and conducts substantially all of its operations through its subsidiaries, including FGL Insurance and FGL NY Insurance. As a result, claims of the holders of the exchange notes and the guarantees will be structurally subordinated to the indebtedness, other liabilities (including liabilities to policyholders and contract holders) and preferred equity of the Issuer’s and the guarantors’ subsidiaries that are not guarantors. Therefore, in the event of the bankruptcy, insolvency, liquidation or dissolution of a subsidiary that is not a guarantor, following payment by such subsidiary of its liabilities, such subsidiary may not have sufficient assets remaining in order to make payments to the Issuer, as a shareholder or otherwise. In addition, assets of the Issuer could be made available to satisfy claims of FGL Insurance’s policyholders, as discussed under “Risk Factors—Risk Factors Related to the Notes—We are subject to statutory provisions under which our assets could be used to satisfy claims of FGL Insurance’s policyholders.” As of June 30, 2023, the Issuer’s non-guarantor subsidiaries had no aggregate indebtedness. |
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| Guarantees | | The payment of the principal of, and premium, if any, and interest on, the exchange notes will be fully and unconditionally guaranteed on a senior unsecured, unsubordinated basis, jointly and severally, by each of the Issuer’s existing and future direct and indirect subsidiaries that are guarantors of the Issuer’s obligations under the Credit Agreement. As of the date of this prospectus, the only guarantors of the exchange notes will be CF Bermuda, FGL US Holdings Inc. (“FGL US Holdings”), Fidelity & Guaranty Life Business Services, Inc. (“FGLBS”) and Fidelity & Guaranty Life Holdings, Inc. (“FGLH”). Any subsidiary that guarantees the Issuer’s obligations under the Credit Agreement after the date of the indenture will be required to become a guarantor under the indenture. See “Description of the Notes—General Terms of the Guarantees” and “Description of the Notes—Additional Guarantees.” None of the Issuer’s insurance subsidiaries will guarantee the exchange notes. |
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| Further issuances | | The Issuer may, without notice to or consent of the holders of the exchange notes, issue additional notes having the same terms, with certain exceptions, as the exchange notes; provided, that if the additional notes are not fungible with the original notes for U.S. federal income tax purposes, the additional notes will have a separate CUSIP number so that they are distinguishable from the original notes. |
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| Covenants | | The indenture contains various covenants by which the Issuer and its subsidiaries will be bound, including limitations on consolidations and mergers, limitations on liens on the capital stock of the Issuer’s Covered Subsidiaries (as defined under “Description of the Notes—Certain Definitions”) and limitations on the disposition of the capital stock of these Covered Subsidiaries in specified circumstances. These covenants are subject to important qualifications and limitations. See “Description of the Notes—Certain Covenants of the Issuer.” |
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| Optional redemption | | Prior to December 13, 2027 (the “Par Call Date”), the Issuer may redeem the exchange notes at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of: •(a) the sum of the present values of the remaining scheduled payments of principal of and interest on the exchange notes to be redeemed discounted to the redemption date (assuming the exchange notes to be redeemed matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below under “Description of the Notes—Optional Redemption”), plus 50 basis points, less (b) interest accrued to the redemption date; and •100% of the principal amount of the exchange notes to be redeemed, plus, in either case, accrued and unpaid interest thereon to, but excluding, the redemption date. On or after the Par Call Date, the Issuer may redeem the exchange notes at its option, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the exchange notes to be redeemed, plus accrued and unpaid interest thereon to, but excluding, the redemption date. |
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| Optional redemption for tax reasons | | The Issuer may redeem the exchange notes, in whole but not in part, at a redemption price equal to 100% of the principal amount of the exchange notes, plus accrued and unpaid interest thereon to, but excluding, the redemption date, and all additional amounts, in certain circumstances where any foreign guarantor (as defined under “Description of the Notes—Certain Definitions”) would be required to pay additional amounts under the notes. See “Description of the Notes—Redemption for Changes in Taxes.” |
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| Additional amounts | | If a tax withholding or deduction is imposed on the payment of a foreign guarantor due under the exchange notes or its guarantee, such foreign guarantor will be obligated to pay an additional amount such that the net amounts received in respect of such foreign guarantor’s payment is equal to the amount that would have been due in the absence of such tax withholding or deduction. See “Description of the Notes—Additional Amounts.” |
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| Change of control offer | | If a Change of Control Triggering Event (as defined herein) with respect to the exchange notes occurs, each holder of the exchange notes will have the right to require the Issuer to repurchase all or, at the holder’s option, any part of such holder’s exchange notes at a repurchase price equal to 101% of the principal amount of the exchange notes to be repurchased, plus accrued and unpaid interest thereon to, but excluding, the repurchase date. See “Description of the Notes—Repurchase upon Change of Control Triggering Event.” |
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| Absence of public market for the exchange notes | | The exchange notes are a new issue of securities, and there is currently no established trading market for the exchange notes. The exchange notes generally will be freely transferable, but will also be new securities for which there will not initially be a market. The Issuer does not intend to apply for a listing of the exchange notes on any securities exchange or automated dealer quotation system. Certain of the initial purchasers have advised the Issuer that they currently intend to make a market in the exchange notes. However, they are not obligated to do so, and any market making with respect to the exchange notes may be discontinued without notice. Accordingly, the Issuer cannot assure you as to the development or liquidity of any trading market for the exchange notes. See “Risk Factors—Risk Factors Related to the Exchange Notes—There is currently no market for the exchange notes, and we cannot assure you that an active trading market for the exchange notes will develop. The exchange notes may trade at prices below the price you paid for them.” |
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| Clearance and settlement | | The exchange notes will be issued in book-entry form through the facilities of the Depository Trust Company (“DTC”) for the accounts of its participants, including Clearstream and Euroclear, and will trade in DTC’s same day funds settlement system. Beneficial interests in notes held in book-entry form will not be entitled to receive physical delivery of certificated notes, except in certain limited circumstances. |
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| Form and denomination | | The exchange notes will be issued only in fully registered form without interest coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. |
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| Governing law | | The exchange notes will be governed by the laws of the State of New York. |
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| Trustee | | Citibank, N.A. |
RISK FACTORS
An investment in the exchange notes involves risks. Before deciding whether to participate in the exchange offer, you should carefully consider the risks described below as well as other factors and information included in or incorporated by reference into this prospectus, including the risk factors set forth in our filings with the SEC that are incorporated by reference into this prospectus, as well as the consolidated financial statements and related notes and other information incorporated by reference in this prospectus. Any such risks could materially and adversely affect our business, financial condition, results of operations or liquidity and the trading price of our securities. However, the risks and uncertainties that the we face are not limited to those described below and those set forth in the periodic reports incorporated herein by reference. Additional risks and uncertainties not presently known to us or that we currently believe to be immaterial may also adversely affect our business and the trading price of our securities.
Risks Related to the Exchange Offer
The consummation of the exchange offer may not occur.
We will exchange up to the aggregate principal amount of original notes for exchange notes that are tendered in compliance with, and pursuant to, the terms and conditions of the exchange offer described in this prospectus. Accordingly, holders participating in the exchange offer may have to wait longer than expected to receive their exchange notes, during which time those holders of original notes will not be able to effect transfers of their original notes tendered in the exchange offer. We may, however, waive these conditions at our sole discretion prior to the expiration date. See “The Exchange Offer—Conditions to the Exchange Offer.” You may have difficulty selling the original notes that you do not exchange.
If you do not exchange your original notes for exchange notes pursuant to the exchange offer, the original notes you hold will continue to be subject to the existing transfer restrictions. The original notes may not be offered, sold or otherwise transferred, except in compliance with the registration requirements of the Securities Act, pursuant to an exemption from registration under the Securities Act or in a transaction not subject to the registration requirements of the Securities Act, and in compliance with applicable state securities laws. We do not anticipate that we will register the original notes under the Securities Act. After the exchange offer is consummated, the trading market for the remaining untendered original notes may be small and inactive or may be subject to increased volatility due to the reduction in liquidity. Consequently, you may find it difficult to sell any original notes you continue to hold or to sell such original notes at the price you desire because there will be fewer original notes outstanding. In addition, if you are eligible to exchange your original notes in the exchanges offer and do not exchange your original notes in the exchange offer, you will no longer be entitled to have those outstanding notes registered under the Securities Act.
Some noteholders may be required to comply with the registration and prospectus delivery requirements of the Securities Act.
If you exchange your original notes in the exchange offer for the purpose of participating in a distribution of the exchange notes, you may be deemed to have received restricted securities and, if so, you will be required to comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction. In addition, a broker-dealer that purchased original notes for its own account as part of market-making activities or other trading activities must deliver a prospectus when it sells the exchange notes it receives in exchange for original notes in the exchange offer. Our obligation to keep the registration statement of which this prospectus forms a part effective, or to make this prospectus available to broker-dealers, is limited. Accordingly, a current prospectus may not be available at all times to broker-dealers wishing to resell their exchange notes.
Late deliveries of original notes or any other failure to comply with the exchange offer procedures could prevent a holder from exchanging its original notes.
Noteholders are responsible for complying with all exchange offer procedures. The issuance of exchange notes in exchange for original notes will only occur upon proper completion of the procedures described in this prospectus
under “The Exchange Offer.” Therefore, holders of original notes that wish to exchange them for exchange notes should allow sufficient time for timely completion of the exchange procedure. None of us, the exchange agent or any other person is obligated to extend the exchange offer or notify you of any failure by you to follow the proper exchange offer procedures. In addition, there are no guaranteed delivery procedures available to you in connection with this exchange offer. Risks Related to the Exchange Notes
The exchange notes and the guarantees will be structurally subordinated to all existing and future indebtedness, other liabilities and preferred equity of our and the guarantors’ subsidiaries that are not guarantors.
As a holding company, we conduct substantially all of our operations through our subsidiaries, meaning we derive substantially all of our operating income from, and hold substantially all of our assets through, our subsidiaries. As a result, our ability to meet our obligations on the exchange notes and our other debt obligations, including any future indebtedness under the Credit Agreement and other credit facilities and debt securities when due, depends on our ability to receive distributions from these subsidiaries. These subsidiaries are separate and distinct legal entities and, beyond the obligations that certain subsidiaries have as guarantors, have no obligation to pay any amounts due on our indebtedness, including the exchange notes, or to provide us with funds to satisfy our payment obligations, whether by dividends, distributions, loans or otherwise. The exchange notes will be guaranteed by each of our existing and future direct and indirect subsidiaries that are guarantors of our obligations under the Credit Agreement. The exchange notes will not be guaranteed by any of our other subsidiaries, including our insurance subsidiaries. As a result, the exchange notes and the guarantees will be structurally subordinated to all indebtedness, other liabilities (including liabilities to policyholders and contract holders) and preferred equity of our and the guarantors’ subsidiaries that are not guarantors. In the event of the liquidation, dissolution, winding up or other bankruptcy event of a subsidiary that is not a guarantor, creditors of that subsidiary would generally have the right to be paid in full before any distribution is made to the Issuer or holders of the exchange notes.
The exchange notes and the guarantees will be effectively subordinated to our and the guarantors’ secured indebtedness.
The exchange notes and the guarantees will not be secured by any of our or the guarantors’ assets or the assets of our non-guarantor subsidiaries. As a result, the exchange notes and the guarantees will be effectively subordinated to any secured indebtedness we or the guarantors may incur, to the extent of the value of the assets securing such indebtedness. If we or any of the guarantors are declared bankrupt or insolvent, or if we or any of the guarantors default under any of our or their future indebtedness that is secured by assets, the holders of such indebtedness could declare all of the funds borrowed thereunder, together with accrued interest, immediately due and payable. If we or any of the guarantors are unable to repay such indebtedness, the holders of such indebtedness could foreclose on such assets to the exclusion of holders of the notes and the guarantees, even if an event of default exists under the indenture at such time. In any such event, because the exchange notes and the guarantees will not be secured by such assets, it is possible that there would be no assets remaining from which claims of the holders of the exchange notes and the guarantees could be satisfied or, if any assets remained, they may be insufficient to satisfy such holders’ claims fully.
We will depend substantially on our insurance company subsidiaries for funds to meet our payment obligations under the exchange notes, which may be limited by law.
We conduct substantially all of our operations through our insurance company subsidiaries, including, principally, FGL Insurance and FGL NY Insurance. Our insurance company subsidiaries are restricted by state insurance laws in their ability to pay dividends and make distributions.
Under the insurance laws of the jurisdictions in which our insurance company subsidiaries are domiciled, an insurer is restricted with respect to the timing or the amount of dividends it may pay without prior approval by applicable regulatory authorities. For example, the Iowa insurance law and the New York insurance law regulate the amount of dividends that may be paid in any year by FGL Insurance and FGL NY Insurance, respectively.
Currently, many of our subsidiaries are owned directly by FGL Insurance. Accordingly, all dividends paid by such entities are not paid directly to us, but rather are paid to FGL Insurance and, as described above, the amount of dividends that can be paid to us by FGL Insurance is limited by law. Accordingly, it is possible that our indirect subsidiaries will pay dividends to FGL Insurance, but FGL Insurance will be unable to pay all or a part of any such dividend to us as a result of restrictions under applicable insurance laws and regulations and Iowa corporate law or that of any other state or jurisdiction.
The amount of any dividend an insurance company subsidiary may pay without prior regulatory approval is not necessarily indicative of the insurer’s actual ability to pay dividends, which may be constrained by business and regulatory considerations, such as the impact of dividends on surplus, which could affect the insurer’s ratings or competitive position, the amount of premiums that can be written and the ability to pay future dividends. Further, depending on business and regulatory conditions, we may in the future need to retain cash in our insurance company subsidiaries or even contribute cash to one or more of them in order to maintain their ratings or their statutory capital position. Such a requirement could be the result of investment losses, reserve charges, adverse operating conditions in the current economic environment or changes in interpretation of statutory accounting requirements by regulators.
We maintain consolidated accounting records in accordance with generally accepted accounting principles (“GAAP”) and our insurance company subsidiaries maintain accounting records in accordance with applicable statutory accounting practices (“SAP”). The amount of dividends that can be paid to us by FGL Insurance, and by our indirect subsidiaries to FGL Insurance (including FGL NY Insurance), without prior regulatory approval is based on such subsidiaries’ earnings and capital and surplus determined under SAP, which can differ materially from earnings and capital and surplus reported on a GAAP basis.
In addition, the amount of dividends that our subsidiaries, including our insurance company subsidiaries, can pay may also be limited by applicable corporate laws, which laws generally provide that a corporation cannot pay dividends at any period when its liabilities exceed its assets or when it is unable to pay its debts as they become due in the usual course of business, and may be limited by other contractual arrangements to which such subsidiaries are party, including the terms of other indebtedness.
We are subject to statutory provisions under which our assets could be used to satisfy claims of FGL Insurance’s policyholders.
As a holding company parent of FGL Insurance, we are subject to regulation, both directly and indirectly, by the Iowa Insurance Commissioner. Each state has rehabilitation and liquidation laws that authorize the insurance regulatory authorities to commence proceedings to place an insurer domiciled in such state under supervision, or to rehabilitate or liquidate it, on several grounds, including insolvency and other hazardous financial conditions and events. Under Iowa law, in any proceeding commenced by the Iowa Insurance Commissioner for the purpose of liquidating, rehabilitating, conserving or otherwise reorganizing FGL Insurance, our assets may be deemed to be available to satisfy the policyholder obligations of FGL Insurance. Therefore, it is likely that in a supervision, rehabilitation or liquidation proceeding under Iowa law involving FGL Insurance, we would be named as a party. As a party in any such proceeding, insurance regulatory authorities would likely seek to use our assets to pay the claims of policyholders of FGL Insurance. This would adversely affect our ability to make payments due under the notes.
Our debt instruments may restrict our current and future operations, particularly our ability to respond to changes or to take certain actions.
At June 30, 2023, we had outstanding (i) $515 million of borrowings under the Credit Agreement, (ii) $550 million aggregate principal amount of 5.50% senior notes due 2025 (the “5.50% F&G Notes”) and (iii) $500 million aggregate principal amount of the original notes.
The Credit Agreement imposes significant operating and financial restrictions, including financial covenants, and the Credit Agreement and the indenture governing the 5.50% F&G Notes limit, among other things, our and our subsidiaries’ ability to:
•incur or assume additional indebtedness, including guarantees;
•incur or assume liens;
•engage in mergers or consolidations;
•convey, transfer, lease or dispose of assets;
•make certain investments;
•enter into transactions with affiliates;
•declare or make any dividend payments or distributions or repurchase capital stock or other equity interests;
•change the nature of our business materially,
•make changes in accounting treatment or reporting practices that affect the calculation of financial covenants, or change our fiscal year; and
•enter into certain agreements that would restrict the ability of subsidiaries to make payments to us.
Upon the occurrence of a “change of control triggering event” as defined in the indentures governing the 5.50% F&G Notes and original notes, the holders of the notes will have the right to require us to repurchase all or any part of their notes at a price equal to 101% of the principal amount plus any accrued but unpaid interest to the repurchase date. In addition, under the indenture governing the original notes and the exchange notes, the interest rate payable on the original notes and the exchange notes may be subject to adjustment if either S&P or Fitch (or a substitute rating agency therefor) downgrades (or downgrades and subsequently upgrades) the credit ratings assigned to such notes.
As a result of these covenants and restrictions, we are, and will be, limited in how we conduct our business, and we may be unable to raise additional debt or equity financing to compete effectively or to take advantage of new business opportunities. The terms of any future indebtedness we may incur could include additional or different restrictive covenants. If we fail to comply with these covenants in the future, we would be required to obtain waivers or amend the covenants, which we may not be successful in obtaining.
Our failure to comply with the restrictive covenants in existing or future debt instruments could result in an event of default, which, if not cured or waived, could result in our being required to repay outstanding indebtedness before their due date. If we are forced to refinance indebtedness on less favorable terms or are unable to refinance at all, our results of operations and financial condition could be materially adversely affected.
The indenture contains only limited protection for holders of the exchange notes and, except in certain limited circumstances, will not restrict our ability to incur additional debt, repurchase our securities or take other actions that could negatively impact holders of the exchange notes.
We are not restricted under the terms of the indenture, pursuant to which the exchange notes will be issued, from incurring additional debt or repurchasing our securities. In addition, the indenture does not contain any covenants which require us to achieve or maintain any minimum financial results or financial position. Our ability to recapitalize, incur additional debt and take a number of other actions that are not limited by the terms of the indenture could have the effect of diminishing our ability to make payments on the notes when due.
The terms of the exchange notes will not necessarily afford holders of the exchange notes protection in the event of a highly leveraged transaction that may adversely affect holders of the notes, including a reorganization, recapitalization, restructuring, merger or other similar transaction involving us. As a result, we could enter into any such transaction even though the transaction could increase the total amount of our outstanding debt, adversely affect our capital structure or the credit ratings of our debt securities, or otherwise adversely affect the holders of the exchange notes. For a variety of reasons, these transactions may not necessarily constitute a Change of Control Triggering Event that affords holders the protections described under “Description of the Notes—Repurchase upon Change of Control Triggering Event.” Except as described under “Description of the Notes—Repurchase upon Change of Control Triggering Event,” the indenture will not contain provisions that permit the holders of the
exchange notes to require us to repurchase the exchange notes in the event of a takeover, recapitalization or similar transaction.
A Change of Control (as defined under “Description of the Notes—Certain Covenants of the Issuer—Certain Definitions”) includes a disposition to any person, other than a Permitted Holder, of all or substantially all of our assets and the assets of our subsidiaries taken as a whole. Although there is a limited body of case law interpreting the phrase “all or substantially all,” there is no precise established definition of the phrase under applicable law. Accordingly, in certain circumstances, there may be a degree of uncertainty as to whether a particular transaction would involve a disposition of “all or substantially all” of the assets of us and our subsidiaries taken as a whole. As a result, the ability of the holders of the exchange notes to require us to offer to repurchase exchange notes as a result of a transfer of less than all of our assets to another person may be uncertain. The guarantees of the notes are limited in nature, and any guarantor that is released from its obligations under the Credit Agreement will be automatically released from its guarantee of the notes.
The exchange notes will only be guaranteed by each of our existing and future direct and indirect subsidiaries that are guarantors of our obligations under the Credit Agreement. If any such subsidiary (including any newly formed, newly acquired or newly re-designated subsidiary) guarantees (or becomes a co-borrower or co-issuer in respect of) our obligations or any guarantor’s obligations under any credit facility (or commitments therefor) that we enter into or that such guarantor enters into (other than the Credit Agreement) or any capital markets debt that we issue or that such guarantor issues, such subsidiary will not be required to guarantee our obligations under the exchange notes and the indenture. Furthermore, if any of our subsidiaries that serves as a guarantor under the exchange notes is released from its obligations under the Credit Agreement (other than if such guarantor is released because of payment under its guarantee), the guarantee of the exchange notes by that subsidiary will be released without action by, or consent of, any holder of the exchange notes or the trustee. See “Description of the Notes—General Terms of the Guarantees.” You will not have a claim as a creditor against any subsidiary that is not a guarantor of the exchange notes due to the limited nature of the guarantees or that ceases to be a guarantor of the exchange notes due to the release of its guarantees. We may not be able to repurchase all of the exchange notes upon a Change of Control Triggering Event.
As described under “Description of the Notes—Repurchase upon Change of Control Triggering Event,” unless we have otherwise redeemed the exchange notes, we will be required to offer to repurchase the exchange notes upon the occurrence of a Change of Control Triggering Event with respect to the exchange notes. We may not have sufficient funds to repurchase the exchange notes for cash at such time. In addition, our ability to repurchase the exchange notes for cash may be limited or prohibited by law or our credit, lease or operating agreements in existence at the time. To the extent we are unable to obtain relief from any such limitations or prohibitions, we may be unable to repurchase the exchange notes. In addition, the Credit Agreement contains an event of default upon certain events that constitute a change of control which will obligate us to repay any indebtedness outstanding under the Credit Agreement upon an acceleration of such indebtedness. Regardless of the cause, our failure to offer to repurchase the notes could constitute an event of default under the indenture which could, in turn, constitute a default under other of our agreements relating to our indebtedness outstanding at the time, including the Credit Agreement. There is currently no market for the exchange notes, and we cannot assure you that an active trading market for the exchange notes will develop. The exchange notes may trade at prices below the price you paid for them.
Currently, there is no market for the exchange notes, and we do not intend to apply for listing of the exchange notes on any securities exchange or automated dealer quotation system. Accordingly, there can be no assurances that a trading market for the exchange notes will ever develop or will be maintained. Further, there can be no assurances as to the liquidity of any trading market that may develop for the exchange notes, your ability to sell your exchange notes or the prices at which you will be able to sell your exchange notes. Future trading prices of the exchange notes will depend on many factors, including prevailing interest rates, our financial condition and results of operations, the then-current ratings assigned to the exchange notes and the market for similar securities. Any trading market that develops may be affected by many factors independent of and in addition to the foregoing, including:
•time remaining prior to the maturity of the exchange notes;
•outstanding amounts of the exchange notes;
•the terms related to optional redemption of the exchange notes; and
•level, direction and volatility of market interest rates generally.
Certain of the initial purchasers have advised us that they presently intend to make a market in the exchange notes. However, they are not obligated to do so, and any market making with respect to the exchange notes may be discontinued without notice, in the initial purchasers’ sole discretion.
Any downgrade in our credit ratings could limit our ability to obtain future financing, increase our borrowing costs and adversely affect the market price of our outstanding debt securities, including the exchange notes, or otherwise impair our business, financial condition, cash flows and results of operations.
We expect that the exchange notes will be rated by at least one nationally recognized credit rating agency. A debt rating is not a recommendation to purchase, sell or hold the exchange notes. These ratings are not intended to correspond to market price or suitability of the notes for any particular investors. Credit rating agencies continually review their ratings for the companies that they follow, including us. Credit rating agencies also evaluate the industries in which we operate as a whole and may change their credit rating for us based on their overall view of such industries. There can be no assurance that any rating assigned to any of our debt securities, including the exchange notes, will remain in effect for any given period of time or that any such ratings will not be lowered, suspended or withdrawn entirely by a credit rating agency if, in that credit rating agency’s judgment, circumstances so warrant.
A downgrade of our credit ratings could, among other things:
•adversely affect the market price of our debt securities, including the notes;
•limit our access to the capital markets or otherwise adversely affect the availability of other new financing on favorable terms, if at all;
•result in more restrictive covenants in agreements governing the terms of any future indebtedness that we may incur;
•increase our cost of borrowing; and
•impair our business, financial condition, cash flows and results of operations.
Redemption may adversely affect the investment return on the exchange notes.
We have the right to redeem some or all of the exchange notes prior to maturity, as described under “Description of the Notes—Optional Redemption” and “Description of the Notes—Redemption for Changes in Taxes.” We may redeem the exchange notes at times when prevailing interest rates may be relatively low. Accordingly, holders of the exchange notes may not be able to reinvest the redemption proceeds in a comparable security and obligor at an effective interest rate as high as that of the exchange notes. Federal and state laws may permit courts, under specific circumstances, to void the exchange notes and/or any of the guarantees as a fraudulent transfer or conveyance, subordinate claims in respect of the exchange notes and/or any of the guarantees and require you to return payments received. If that occurs, you may not receive any payments on the exchange notes or any of the guarantees.
Federal and state creditor-protection related laws, including fraudulent transfer and fraudulent conveyance statutes, may apply to the exchange notes and any of the guarantees. Under federal bankruptcy law and comparable provisions of state fraudulent transfer or fraudulent conveyance laws, which may vary from state to state, the exchange notes or any of the guarantees thereof could be voided as fraudulent transfers or conveyances if we or any of the guarantors, as applicable, (i) issued the notes or incurred the guarantees with the actual intent of hindering, delaying or defrauding current or future creditors or (ii) received less than reasonably equivalent value or fair
consideration in return for either issuing the notes or incurring the guarantees and, in the case of (ii) only, one of the following is also true at the time thereof:
•we or any such guarantors, as applicable, were insolvent or rendered insolvent by reason of the issuance of the notes or the incurrence of any such guarantees;
•the issuance of the notes or the incurrence of any such guarantees left us or any such guarantors, as applicable, with an unreasonably small amount of capital or assets to carry on business; or
•we or any such guarantors intended to, or believed that we or such guarantor would, incur debts beyond our or any guarantor’s ability to pay as they mature.
As a general matter, value is given for a transfer or an obligation if, in exchange for the transfer or obligation, property is transferred or a valid antecedent debt is secured or satisfied. A court could find that we or any guarantor did not receive reasonably equivalent value or fair consideration for the notes or any of the guarantees, as applicable, to the extent that we or any guarantor did not obtain a reasonably equivalent benefit directly or indirectly from the issuance of the notes or the applicable guarantees.
The bankruptcy code defines “insolvent” as to an entity other than a partnership or a municipality as the sum of its debts, including contingent and unliquidated liabilities, being greater than the fair value of all of its assets. We cannot be certain as to the standards a court would use to determine whether or not we or any guarantors were insolvent at the relevant time.
If a court were to find that the issuance of the exchange notes or the incurrence of a guarantee of the exchange notes was a fraudulent transfer or conveyance, the court could void the payment obligations under the exchange notes or that guarantee (the effect being that holders of the exchange notes would cease to have a claim under the exchange notes or such guarantee) and could require the holders of the exchange notes to repay any amounts received with respect to the exchange notes or that guarantee. In the event of a finding that a fraudulent transfer or conveyance occurred, you may not receive any repayment on the exchange notes. Further, the voiding of the exchange notes or any of the guarantees could result in an event of default with respect to the exchange notes or our and our subsidiaries’ other debt that could result in acceleration of the exchange notes or that debt.
Although the indenture will contain a provision intended to limit any guarantor’s liability under its guarantee of the exchange notes to the maximum amount as will not result in the obligations of such guarantor under its guarantee of the exchange notes constituting a fraudulent conveyance or fraudulent transfer under applicable law, this provision may not be effective to protect any guarantees of the exchange notes from being voided under fraudulent conveyance, fraudulent transfer or similar laws, or prevent that guarantor’s obligation from being reduced to an amount that effectively makes its guarantee worthless. If any guarantees of the exchange notes by any of the guarantors were held to be unenforceable, the notes would be equity of such guarantor.
Finally, the bankruptcy court may subordinate the claims in respect of the notes or the guarantees of the notes to other claims against us or any guarantors under the principle of equitable subordination if the court determines that (i) the holder of exchange notes engaged in some type of inequitable conduct, (ii) the inequitable conduct resulted in injury to our other creditors or conferred an unfair advantage upon the holders of exchange notes and (iii) equitable subordination is not inconsistent with the provisions of the bankruptcy code.
Insolvency laws of Bermuda may not be as favorable to you as the U.S. bankruptcy laws and may preclude holders of the exchange notes from recovering payments due under the exchange notes.
CF Bermuda is incorporated in Bermuda and, is a party to certain key agreements affecting your rights as holders of the exchange notes and your ability to recover under the exchange notes. The insolvency laws of Bermuda may not be as favorable to your interests as creditors as the laws of the United States or other jurisdictions with which you may be familiar, including in the areas of rights of creditors, priority of governmental and other creditors, ability to obtain post-petition interest and the duration of the proceeding. See “Limitations on Validity and Enforceability of CF Bermuda Guarantee” for a description of the insolvency laws in Bermuda, which could limit the enforceability of the guarantee of CF Bermuda.
In the event that the issuer, any one or more of the guarantors or any other of our subsidiaries experiences financial difficulty, it is not possible to predict with certainty in which jurisdiction or jurisdictions insolvency or similar proceedings would be commenced, or the outcome of such proceedings.
Enforcing your rights as a holder of the exchange notes or under the guarantees across multiple jurisdictions may be difficult.
The exchange notes will be issued by a U.S. entity and guaranteed by CF Bermuda, a Bermuda entity. In the event of bankruptcy, insolvency or a similar event, proceedings could be initiated in either of these jurisdictions. Your rights under the exchange notes and the guarantees may therefore be subject to the laws of multiple jurisdictions, and you may not be able to enforce effectively your rights in multiple bankruptcy, insolvency and other similar proceedings. Moreover, such multi-jurisdictional proceedings are typically complex and costly for creditors and often result in substantial uncertainty and delay in the enforcement of creditors’ rights. In addition, the bankruptcy, insolvency, foreign exchange, administration and other laws of the various jurisdictions may be materially different from or in conflict with one another and those of the United States, including in respect of creditor’s rights, priority of creditors, the ability to obtain post-petition interest and the duration of the insolvency proceeding. The consequences of the multiple jurisdictions involved could trigger disputes over which jurisdiction’s law should apply, which could adversely affect your ability to enforce your rights and to collect payment in full under the exchange notes and the guarantees.
You may be unable to enforce judgments obtained in the United States and foreign courts against CF Bermuda or its directors and officers.
CF Bermuda, as guarantor, is, and will continue to be, a non-resident of the United States. As a consequence, you may not be able to effect service of process on CF Bermuda (or its directors and officers, if applicable) or to enforce judgments of U.S. courts in any civil liability proceedings under the U.S. federal securities laws. Moreover, any judgment obtained in the United States against CF Bermuda (or its directors and officers, if applicable), including judgments with respect to the payment of principal, premium, if any, and interest on the exchange notes, may not be collectible in the United States. There is also uncertainty about the enforceability in the courts of certain jurisdictions, including judgments obtained in the United States against CF Bermuda, whether or not predicated upon the federal securities laws of the United States. See “Service of Process and Enforcement of Civil Liabilities.”
THE EXCHANGE OFFER
Purpose of the Exchange Offer
When we completed the first issuance of the original notes in connection with a private placement on January 13, 2023, we entered into a registration rights agreement with respect to the original notes with the initial purchasers of the private placement. Under the registration rights agreement, we agreed to use commercially reasonable efforts to file a registration statement with the SEC relating to the exchange offer. We also agreed to use our commercially reasonable efforts to cause the registration statement to become effective with the SEC and to consummate the exchange offer within 365 days of the first issuance of the original notes. The registration rights agreement provides that we will be required to pay additional interest to the holders of the original notes if we fail to comply with such filing, effectiveness and offer consummation requirements. See “The Exchange Offer—Registration Rights Agreement” for more information on the additional interest we will owe if we do not complete the exchange offer within a specified timeline. The exchange offer is not being made to holders of original notes in any jurisdiction where the exchange would not comply with the securities or blue sky laws of such jurisdiction. A copy of the registration rights agreement has been filed as an exhibit to the registration statement of which this prospectus forms a part, and both are available from us upon request. See “Where You Can Find More Information.” Each broker-dealer that receives exchange notes for its own account in exchange for original notes, where such original notes were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such exchange notes. See “Plan of Distribution.” Terms of the Exchange Offer
Upon the terms and subject to the conditions described in this prospectus, we will accept for exchange original notes that are properly tendered before 5:00 p.m., New York City time, on the expiration date and not validly withdrawn as permitted below. We will issue a like principal amount of exchange notes in exchange for the principal amount of the corresponding original notes tendered under the exchange offer. As used in this prospectus, the term “expiration date” means , 2023. However, if we have extended the period of time for which the exchange offer is open, the term “expiration date” means the latest date to which we extend the exchange offer.
As of the date of this prospectus, $500,000,00 aggregate principal amount of the original notes is outstanding. The original notes were issued under the indenture. Our obligation to accept original notes for exchange in the exchange offer is subject to the conditions described below under “The Exchange Offer—Conditions to the Exchange Offer.” We reserve the right to extend the period of time during which the exchange offer is open. We may elect to extend the exchange offer period if less than 100% of the original notes are tendered or if any condition to consummation of the exchange offer has not been satisfied as of the expiration date and it is likely that such condition will be satisfied after such date. In addition, if we materially change the terms of the exchange offer, we will extend the period of time during which the exchange offer is open if necessary so that at least five business days remain in the offering period following notice of the material change. In the event of such extension, and only in such event, we may delay acceptance for exchange of any original notes by giving written notice of the extension to the holders of original notes as described below. During any extension period, all original notes previously tendered will remain subject to the exchange offer and may be accepted for exchange by us. Any original notes not accepted for exchange will be returned to the tendering holder promptly after the expiration or termination of the exchange offer. Original notes tendered in the exchange offer must be in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. No dissenter’s rights of appraisal exist with respect to the exchange offer.
We reserve the right to amend or terminate the exchange offer, and not to accept for exchange any original notes not previously accepted for exchange, upon the occurrence of any of the conditions of the exchange offer specified below under “The Exchange Offer—Conditions to the Exchange Offer.” We will give written notice of any extension, amendment, non-acceptance or termination to the holders of the original notes as promptly as practicable.
Such notice, in the case of any extension, will be issued by means of a press release or other public announcement no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled expiration date.
Our acceptance of the tender of original notes by a tendering holder will form a binding agreement upon the terms and subject to the conditions provided in this prospectus and the accompanying letter of transmittal.
Procedures for Tendering
Except as described below, a tendering holder must, at or prior to 5:00 p.m., New York City time, on the expiration date:
•transmit a properly completed and duly executed letter of transmittal, including all other documents required by the letter of transmittal, to D.F. King & Co., as the exchange agent, at the address listed below under the heading “—Exchange Agent;” or
•if original notes are tendered in accordance with the book-entry procedures described below, transmit an agent’s message to the exchange agent at the address listed below under the heading “—Exchange Agent.”
In addition, the exchange agent must receive a timely confirmation of book-entry transfer of the original notes into the exchange agent’s account at DTC, the book-entry transfer facility.
The term “agent’s message” means a message, transmitted to DTC and received by the exchange agent and forming a part of a book-entry transfer, that states that DTC has received an express acknowledgment that the tendering holder agrees to be bound by the letter of transmittal and that we may enforce the letter of transmittal against this holder.
The method of delivery of original notes, letters of transmittal and all other required documents is at your election and risk. If the delivery is by mail, we recommend that you use registered mail, properly insured, with return receipt requested. In all cases, you should allow sufficient time to assure timely delivery. You should not send letters of transmittal or original notes to anyone other than the exchange agent.
If you are a beneficial owner whose original notes are registered in the name of a broker, dealer, commercial bank, trust company or other nominee, and wish to tender, you should promptly instruct the registered holder to tender on your behalf. Any registered holder that is a participant in DTC’s book-entry transfer facility system may make book-entry delivery of the original notes by causing DTC to transfer the original notes into the exchange agent’s account.
Signatures on a letter of transmittal or a notice of withdrawal must be guaranteed unless the original notes surrendered for exchange are tendered:
•by a registered holder of the original notes that has not completed the box entitled “Special Issuance Instructions” or “Special Delivery Instructions” on the letter of transmittal; or
•for the account of an “eligible institution.”
If signatures on a letter of transmittal or a notice of withdrawal are required to be guaranteed, the guarantees must be by an “eligible institution.” An “eligible institution” is a financial institution, including most banks, savings and loan associations and brokerage houses, that is a participant in the Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchanges Medallion Program.
We will reasonably determine all questions as to the validity, form and eligibility of original notes tendered for exchange and all questions concerning the timing of receipts and acceptance of tenders. These determinations will be final and binding.
We reserve the right to reject any particular original note not properly tendered, or any acceptance that might, in our judgment or our counsel’s judgment, be unlawful. We also reserve the right to waive any defects or irregularities with respect to the form or procedures applicable to the tender of any particular original note prior to the expiration
date. Unless waived, any defects or irregularities in connection with tenders of original notes must be cured prior to the expiration date of the exchange offer. None of we, the exchange agent or any other person will be under any duty to give notification of any defect or irregularity in any tender of original notes. None of us, the exchange agent or any other person will incur any liability for failing to give notification of any defect or irregularity.
If the letter of transmittal is signed by a person other than the registered holder of original notes, the letter of transmittal must be accompanied by a certificate of the original notes endorsed by the registered holder or written instrument of transfer or exchange in satisfactory form, duly executed by the registered holder, in either case with the signature guaranteed by an eligible institution. In addition, in either case, the original endorsement or the instrument of transfer must be signed exactly as the name of any registered holder appears on the original notes.
If the letter of transmittal or any original notes or powers of attorney are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, these persons should so indicate when signing. Unless waived by us, proper evidence satisfactory to us of their authority to so act must be submitted.
By signing or agreeing to be bound by the letter of transmittal, each tendering holder of original notes will represent, among other things:
•that it is not an affiliate of ours;
•the exchange notes will be acquired in the ordinary course of its business;
•that it is not participating, does not intend to participate, and has no arrangement or understanding with anyone to participate, in the distribution (within the meaning of the Securities Act) of the exchange notes; and
•if such holder is a broker-dealer that will receive exchange notes for its own account in exchange for original notes that were acquired as a result of market making or other trading activities, that it will deliver a prospectus (or to the extent permitted by law, make available a prospectus to purchasers) in connection with any resale of such exchange notes. Each broker-dealer that receives exchange notes for its own account in exchange for original notes, where such original notes were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such exchange notes. See “Plan of Distribution.” Acceptance of Original Notes for Exchange; Delivery of Exchange Notes
Upon satisfaction of all of the conditions to the exchange offer, we will accept, promptly after the expiration date, all original notes properly tendered. We will issue the exchange notes promptly after the expiration of the exchange offer and acceptance of the corresponding original notes. See “The Exchange Offer—Conditions to the Exchange Offer.” For purposes of the exchange offer, we will be deemed to have accepted properly tendered original notes for exchange when, as and if we have given written notice of such acceptance to the exchange agent. For each original note accepted for exchange, the holder of the original note will receive an exchange note having a principal amount equal to that of the surrendered original note. Since no interest has been paid on the original notes, holders of exchange notes will receive interest accruing from January 13, 2023. Original notes accepted for exchange will cease to accrue interest from and after the date of completion of the exchange offer. Holders of original notes whose original notes are accepted for exchange will not receive any payment for accrued interest on the original notes otherwise payable on any interest payment date, the record date for which occurs on or after completion of the exchange offer and will be deemed to have waived their rights to receive the accrued interest on the original notes.
In all cases, issuance of exchange notes for original notes will be made only after timely receipt by the exchange agent of:
•a timely book-entry confirmation of the original notes into the exchange agent’s account at the book-entry transfer facility;
•a properly completed and duly executed letter of transmittal or a transmitted agent’s message; and
•all other required documents.
Unaccepted or non-exchanged original notes will be returned without expense to the tendering holder of the original notes promptly after the expiration of the exchange offer. In the case of original notes tendered by book-entry transfer in accordance with the book-entry procedures described below, the non-exchanged original notes will be returned or recredited promptly after the expiration of the exchange offer.
Book-Entry Transfer
The exchange agent will make a request to establish an account for the original notes at DTC for purposes of the exchange offer within two business days after the date of this prospectus. Any financial institution that is a participant in DTC’s systems must make book-entry delivery of original notes by causing DTC to transfer those original notes into the exchange agent’s account at DTC in accordance with DTC’s procedure for transfer. Such participant should transmit its acceptance to DTC at or prior to 5:00 p.m., New York City time, on the expiration date. DTC will verify this acceptance, execute a book-entry transfer of the tendered original notes into the exchange agent’s account at DTC and then send to the exchange agent confirmation of this book-entry transfer. The confirmation of this book-entry transfer will include an agent’s message confirming that DTC has received an express acknowledgment from the participant that such participant has received and agrees to be bound by the letter of transmittal and that we may enforce the letter of transmittal against this participant. Delivery of exchange notes issued in the exchange offer may be effected through book-entry transfer at DTC. However, the letter of transmittal or facsimile of it or an agent’s message, with any required signature guarantees and any other required documents, must be transmitted to and received by the exchange agent at the address listed below under “—Exchange Agent” at or prior to 5:00 p.m., New York City time, on the expiration date.
Exchanging Book-Entry Notes
The exchange agent and the book-entry transfer facility have confirmed that any financial institution that is a participant in the book-entry transfer facility may utilize the book-entry transfer facility’s Automated Tender Offer Program, or ATOP, procedures to tender original notes. Any participant in the book-entry transfer facility may make book-entry delivery of original notes by causing the book-entry transfer facility to transfer such original notes into the exchange agent’s account in accordance with the book-entry transfer facility’s ATOP procedures for transfer. However, the exchange for the original notes so tendered will only be made after a book-entry confirmation of the book-entry transfer of original notes into the exchange agent’s account, and timely receipt by the exchange agent of an agent’s message and any other documents required by the letter of transmittal. The term “agent’s message” means a message, transmitted by the book-entry transfer facility and received by the exchange agent and forming part of a book-entry confirmation, which states that the book-entry transfer facility has received an express acknowledgment from a participant tendering original notes that are the subject of such book-entry confirmation that such participant has received and agrees to be bound by the terms of the letter of transmittal, and that we may enforce such agreement against such participant.
Withdrawal Rights
For a withdrawal to be effective, the exchange agent must receive a written notice of withdrawal at the address or, in the case of eligible institutions, at the facsimile number, indicated below under “—Exchange Agent” before 5:00 p.m., New York City time, on the expiration date. Any notice of withdrawal must:
•specify the name of the person, referred to as the depositor, having tendered the original notes to be withdrawn;
•identify the original notes to be withdrawn, including the principal amount of the original notes;
•in the case of original notes tendered by book-entry transfer, specify the number of the account at the book-entry transfer facility from which the original notes were tendered and specify the name and number of the
account at the book-entry transfer facility to be credited with the withdrawn original notes and otherwise comply with the procedures of such facility;
•contain a statement that the holder is withdrawing his or her election to have the original notes exchanged;
•be signed by the holder in the same manner as the original signature on the letter of transmittal by which the original notes were tendered, including any required signature guarantees, or be accompanied by documents of transfer to have the trustee with respect to the original notes register the transfer of the original notes in the name of the person withdrawing the tender; and
•specify the name in which the original notes are registered, if different from that of the depositor.
We will determine all questions as to the validity, form and eligibility, including time of receipt, of notices of withdrawal. Any original notes so withdrawn will be deemed not to have been validly tendered for exchange. No exchange notes will be issued unless the original notes so withdrawn are validly re-tendered. Any original notes that have been tendered for exchange, but which are not exchanged for any reason, will be returned to the tendering holder without cost to the holder promptly after the expiration of the exchange offer. In the case of original notes tendered by book-entry transfer, the original notes will be credited to an account maintained with the book-entry transfer facility for the original notes promptly after the expiration of the exchange offer. Properly withdrawn original notes may be re-tendered by following the procedures described under “The Exchange Offer—Procedures for Tendering” above at any time on or before 5:00 p.m., New York City time, on the expiration date. Conditions to the Exchange Offer
Notwithstanding any other provision of the exchange offer, we shall not be required to accept for exchange, or to issue exchange notes in exchange for, any original notes, and may terminate or amend the exchange offer, if at any time prior to 5:00 p.m., New York City time, on the expiration date any of the following events occurs:
•there is threatened, instituted or pending any action or proceeding before, or any injunction, order or decree issued by, any court or governmental agency or other governmental regulatory or administrative agency or commission that might materially impair our ability to proceed with the exchange offer; or
•the exchange offer or the making of any exchange by a holder of original notes would violate applicable law or any applicable interpretation of the SEC staff.
In addition, we will not accept for exchange any original notes tendered, and no exchange notes will be issued in exchange for any original notes, if any stop order is threatened by the SEC or in effect relating to the registration statement of which this prospectus constitutes a part or the qualification of the indenture under the Trust Indenture Act of 1939, as amended. We are required to make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment.
Exchange Agent
We have appointed D.F. King & Co. as the exchange agent for the exchange offer. You should direct all executed letters of transmittal to the exchange agent at the address indicated below. You should direct questions and requests for assistance, requests for additional copies of this prospectus or of the letter of transmittal to the exchange agent addressed as follows:
D.F. King & Co.
48 Wall Street
New York, NY 10005
Attn: Kristian Klein
Tel: +1.212.269.5550
Email: f&g@dfking.com
All other questions should be addressed to F&G Annuities & Life, Inc., 801 Grand Ave. Suite 2600, Des Moines, IA 50309, Attention: Jodi Ahlman, Telephone: (515) 330-3340. If you deliver the letter of transmittal to an
address other than any address indicated above or transmit instructions via facsimile other than to any facsimile number indicated above, then your delivery or transmission will not constitute a valid delivery of the letter of transmittal.
Fees and Expenses
We will not make any payment to brokers, dealers or others soliciting acceptances of the exchange offer. We have agreed to pay all fees and expenses incident to the exchange offer (including the expenses of one counsel for the holders of the original notes and the exchange notes) other than commissions or concessions of any brokers or dealers and will indemnify the holders of the original notes and the exchange notes (including any broker-dealers) against certain liabilities, including liabilities under the Securities Act. The cash fees and expenses to be incurred in connection with the exchange offer, including fees and expenses for the exchange agent, will be paid by us.
Transfer Taxes
We will pay any transfer taxes in connection with the tender of original notes in the exchange offer unless you instruct us to register exchange notes in the name of, or request that original notes not tendered or not accepted in the exchange offer be returned to, a person other than the registered tendering holder. In those cases, you will be responsible for the payment of any applicable transfer taxes.
Consequences of Exchanging or Failing to Exchange the Original Notes
Holders of original notes that do not exchange their original notes for exchange notes under the exchange offer will remain subject to the restrictions on transfer of such original notes as set forth in the legend printed on the original notes as a consequence of the issuance of the original notes pursuant to exemptions from, or in transactions not subject to, the registration requirements of the Securities Act and applicable state securities laws. In general, you may not offer or sell the original notes unless they are registered under the Securities Act, or if the offer or sale is exempt from registration under the Securities Act and applicable state securities laws. Except as required by the registration rights agreement, we do not intend to register resales of the original notes under the Securities Act.
Under existing interpretations of the Securities Act by the SEC staff contained in several no-action letters to third parties, and subject to the immediately following sentence, we believe the exchange notes would generally be freely transferable by holders after the exchange offer without further registration under the Securities Act, subject to certain representations required to be made by each holder of exchange notes, as set forth below. However, any holder of original notes that is one of our “affiliates” (as defined in Rule 405 under the Securities Act) or that intends to participate in the exchange offer for the purpose of distributing the exchange notes, or any broker-dealer that purchased any of the original notes from us for resale pursuant to Rule 144A or any other available exemption under the Securities Act:
•will not be able to rely on the interpretation of the SEC staff;
•will not be able to tender its original notes in the exchange offer; and
•must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any sale or transfer of original notes unless such sale or transfer is made pursuant to an exemption from such requirements. See “Plan of Distribution.” We do not intend to seek our own interpretation regarding the exchange offer and there can be no assurance that the SEC staff would make a similar determination with respect to the exchange notes as it has in other interpretations to other parties, although we have no reason to believe otherwise.
Registration Rights Agreement
The following summary describes the material terms and provisions of the registration rights agreement. This description is qualified in its entirety by reference to the terms and conditions of the registration rights agreement. We urge you to read the registration rights agreement in its entirety because it, not the following summary, will
define your rights as a holder of original notes under that agreement. A copy of the registration rights agreement may be obtained upon request to F&G at its address set forth under “Where You Can Find More Information.” On January 13, 2023, the obligor group and the initial purchasers entered into a registration rights agreement with respect to the original notes. In the registration rights agreement, the obligor group agreed, at their expense, for the benefit of the holders of the original notes, to use their commercially reasonable efforts to (1) file with the SEC a registration statement on an appropriate registration form (the “exchange offer registration statement”) with respect to a registered offer to exchange the original notes for the exchange notes issued by the Issuer and guaranteed by the guarantors, in each case having substantially identical terms as the original notes and the related guarantees and evidencing the same indebtedness as the original notes and the guarantees (except that the exchange notes will not contain terms with respect to transfer restrictions or any additional interest payable upon a registration default, as discussed below) and (2) cause such registration statement to be declared effective under the Securities Act. Unless the context otherwise requires, references to the original notes include references to the guarantees associated with the original notes, and references to the exchange notes include references to the guarantees associated with the exchange notes.
In the event that the obligor group determines that a registered exchange offer may not be completed as soon as practicable after the last date for acceptance of original notes for exchange because it would violate any applicable law or applicable interpretations of the staff of the SEC or, if for any reason the exchange offer is not completed within 365 days after the issuance of the original notes, or, in certain circumstances, any initial purchaser so requests in connection with any offer or sale of original notes, the obligor group will promptly file and use their commercially reasonable efforts to have declared effective a shelf registration statement relating to resales of the original notes and to keep that shelf registration statement effective until the date that the original notes cease to be “registrable securities” (as defined in the registration rights agreement), including when all original notes covered by the shelf registration statement have been sold pursuant to the shelf registration statement. The obligor group will, in the event of such a shelf registration, provide to each participating holder of original notes copies of a prospectus, notify each participating holder of original notes when the shelf registration statement has become effective and take certain other actions to permit resales of the original notes. A holder of original notes that sells original notes under the shelf registration statement generally will be required to make certain representations to the obligor group, to be named as a selling security holder in the related prospectus and to deliver a prospectus to purchasers, will be subject to certain of the civil liability provisions under the Securities Act in connection with those sales and will be bound by the provisions of the registration rights agreement that are applicable to such a holder of original notes (including certain indemnification obligations). Holders of original notes will also be required to suspend their use of the prospectus included in the shelf registration statement under specified circumstances upon receipt of notice from the obligor group. Under applicable interpretations of the staff of the SEC, the Issuer’s affiliates will not be permitted to exchange their original notes for registered notes in the exchange offer. The obligor group is entitled to suspend its obligation to file any shelf registration statement or amendment thereto, furnish any supplement or amendment to a prospectus included in a shelf registration statement or any free writing prospectus, make any other filing with the SEC that would be incorporated by reference into a shelf registration statement, cause a shelf registration statement to remain effective or a prospectus or any free writing prospectus to remain usable or take any similar action if there is a possible acquisition, disposition or business combination or other transaction, business development or event involving the Issuer or its subsidiaries that may require disclosure in the shelf registration statement or prospectus and the obligor group determines that disclosure at such time is not in the best interests of the Issuer and its shareholders or if obtaining any financial statements relating to any such acquisition or business combination required to be included in the shelf registration statement or prospectus would be impracticable.
If a “registration default” (as defined in the registration rights agreement and described below) occurs with respect to the original notes that are “registrable securities” (as defined in the registration rights agreement), then additional interest in respect of such registration default shall accrue on the principal amount of the original notes at a rate of 0.25% per annum (which rate will be increased by an additional 0.25% per annum for each subsequent 90-day period that such additional interest continues to accrue; provided, that the rate at which such additional interest accrues on the original notes may in no event exceed 0.50% per annum). The additional interest in respect of any registration default will cease to accrue when the registration default is cured. A registration default occurs if (1) the obligor group has not exchanged exchange notes for all original notes validly tendered in accordance with the terms
of the exchange offer or, if a shelf registration statement is required and is not declared effective, on or prior to the 365th day after the issuance of the original notes, or (2) if applicable, a shelf registration statement covering resales of the original notes has been declared effective and such shelf registration statement ceases to be effective or the prospectus contained therein ceases to be usable for resales of original notes (a) on more than two occasions during the required effectiveness period or (b) at any time in any 12-month period during the required effectiveness period, and such failure to remain effective or be usable exists for more than 60 days (whether or not consecutive) in any 12-month period. A registration default is cured with respect to the original notes, and additional interest in respect of such registration default ceases to accrue on any registrable securities of the original notes, when the exchange offer is completed or the shelf registration statement is declared effective or the prospectus again becomes usable, as applicable, or the notes cease to be registrable securities.
Any amounts of additional interest in respect of a registration default due will be payable in cash on the same original interest payment dates as interest on the original notes (including any additional interest payable upon an interest rate adjustment, as described under “Description of the Notes—Interest Rate Adjustment upon Ratings Action”) is payable. The exchange notes will be accepted for clearance through DTC.
USE OF PROCEEDS
We will not receive any proceeds from the exchange offer. In consideration for issuing exchange notes, we will receive in exchange the original notes of like principal amount. The original notes surrendered in exchange for exchange notes will be retired and canceled.
SUMMARIZED OBLIGOR GROUP FINANCIAL INFORMATION
Set forth below is summarized unaudited financial information of the obligor group, as presented on a combined basis. Intercompany transactions and balances within the obligor group have been eliminated. In addition, financial information of any non-issuer or non-guarantor subsidiaries, which would normally be consolidated by either F&G or the guarantors under U.S. GAAP, has been excluded from such presentation.
| | | | | | | | | | | |
| Six Months Ended June 30, 2023 | | Year Ended December 31, 2022 |
($ in millions) | | | |
Summarized Statement of Operations: | | | |
Total revenue | (11) | | | (27) | |
Total expenses | (12) | | | (14) | |
Tax benefit (expense) | 5 | | | (42) | |
Net income (loss) from continuing operations, net of tax | (18) | | | (83) | |
| | | |
| Summarized Balance Sheet: | June 30, 2023 | | December 31, 2022 |
Investments | 522 | | | 346 | |
Cash & cash equivalents | 233 | | | 185 | |
Goodwill | 1,725 | | | 1,725 | |
| Amounts due from non-guarantor subsidiaries | 46 | | | 40 | |
Other assets | 34 | | | 37 | |
Total assets | 2,560 | | | 2,333 | |
| | | |
Notes payable | 1,594 | | | 1,120 | |
Other liabilities | 84 | | | 121 | |
Total liabilities | 1,678 | | | 1,241 | |
DESCRIPTION OF THE NOTES
The original notes were issued and the exchange notes will be issued under the indenture. The following discussion summarizes selected provisions of the notes and the indenture. Because this is only a summary, it is not complete and does not describe every aspect of the notes and the indenture. Whenever there is a reference to particular sections or defined terms of the notes or the indenture, the sections or defined terms are incorporated by reference, and the statement is qualified in its entirety by that reference. Capitalized terms are terms that are defined in the notes or the indenture, as applicable. The amount of securities that the Issuer may issue under the indenture is unlimited. A copy of the indenture is available from the Issuer upon request. Investors in the notes should read the notes and the indenture for provisions that may be important to investors but which are not included in this summary.
General Terms of the Notes
The notes will mature and become payable in full, together with any accrued unpaid interest thereon, on January 13, 2028. Interest on the notes will accrue from January 13, 2023 at the rate of 7.400% per annum (subject to adjustment from time to time as described under “—Interest Rate Adjustment upon Ratings Action”). Interest on the notes will be payable semi-annually in arrears on January 13 and July 13 of each year, beginning on July 13, 2023, to the persons in whose names the notes were registered at the close of business on the next preceding January 1 and July 1, respectively.
The Issuer issued the original notes initially in the aggregate principal amount of $500 million. The Issuer may, from time to time, without giving notice to or seeking the consent of the holders of the notes, issue notes under the indenture having the same ranking and the same interest rate, maturity date and other terms (other than the issue price, issue date, and date and amount of the first payment of interest) as the notes issued in this exchange offer. Any additional notes having such similar terms, together with the notes offered hereby, will constitute a single series of notes for all purposes under the indenture, including waivers, amendments and redemptions. This type of offering is often referred to as a “re-opening.” Additional notes may constitute a separate issuance from the original series of notes offered hereby for U.S. federal income tax purposes. Additional notes that constitute a separate issuance from the original notes for U.S. federal income tax purposes will be issued under a separate CUSIP number.
Interest on the notes will be computed on the basis of a 360-day year comprised of twelve 30-day months. Principal and interest will be payable, and the notes will be transferable or exchangeable, at the office or offices or agency maintained by the Issuer for this purpose. Payment of interest on the notes may be made at the Issuer’s option by check mailed to the registered holders.
Any payment otherwise required to be made in respect of the notes on a date that is not a business day for the notes may be made on the next succeeding business day with the same force and effect as if made on that date. No additional interest shall accrue as a result of a delayed payment. A business day is defined in the indenture as a day other than a Saturday, Sunday or other day on which banking institutions in New York City are authorized or required by law, regulation or executive order to close.
The Issuer does not intend to list the notes on any securities exchange. The original notes were issued and the exchange notes will be issued only in fully registered form without coupons in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof (or other such denominations set forth in the Global Certificates (as defined under “—Book-Entry, Delivery and Form”)). No service charge will be made for any transfer or exchange of the notes, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with a transfer or exchange. The notes will be represented by one or more Global Certificates registered in the name of a nominee of DTC. Except as described below under “—Book-Entry, Delivery and Form,” the notes will not initially be issuable in definitive form.
The Issuer will initially appoint the trustee at its designated corporate trust office as a paying agent and registrar for the notes. The Issuer will cause to be kept at the designated office of the registrar a register in which, subject to such reasonable regulations as the Issuer may prescribe, the Issuer will provide for the registration of the notes and registration of transfers of the notes. The Issuer will maintain an office or agency where security certificates representing the notes may be presented for payment of principal of and interest, if any, and where security
certificates representing the notes may be presented for registration of transfer and for exchange. The Issuer will give the trustee written notice of the location of such office or agency and of any change of location thereof. If the Issuer fails to designate or maintain any such office or agency or fails to give such notice of the location or of any change in the location thereof to the trustee, presentations for payment may be made at the designated corporate trust office of the trustee.
The Issuer will provide investors in the notes with notice of any resignation or removal of the trustee and of any appointment of a successor trustee.
General Terms of the Guarantees
The original notes are, and as of the closing of this exchange offer, the exchange notes will be, fully and unconditionally guaranteed, jointly and severally, by all of the subsidiaries of the Issuer that are guarantors of the Issuer’s obligations under the Credit Agreement, which are CF Bermuda, FGL US Holdings, FGLBS and FGLH. If, after the date of the indenture, any subsidiary, guarantees (or becomes a co-borrower or co-issuer in respect of) the Issuer’s obligations under the Credit Agreement, within 15 days of such event, the Issuer shall cause such subsidiary to become a guarantor under the indenture. See “—Additional Guarantees.” None of the Issuer’s insurance subsidiaries will guarantee the notes.
The obligations of each guarantor under its guarantee will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such guarantor and after giving effect to any collections from or payments made by or on behalf of any other guarantor in respect of the obligations of such other guarantor under its guarantee or pursuant to its contribution obligations under the indenture, result in the obligations of such guarantor under its guarantee not constituting a fraudulent conveyance or fraudulent transfer under federal or state law. By virtue of this limitation, a guarantor’s obligation under its guarantee of the notes could be significantly less than amounts due and payable with respect to the notes, or a guarantor may have no obligation under its guarantee of the notes. Each guarantor that makes a payment for distribution under its guarantee is entitled to a contribution from each other guarantor in a pro rata amount based on the adjusted net assets of each guarantor. See “Risk Factors—Risks Factors Related to the Notes—Federal and state laws may permit courts, under specific circumstances, to void the exchange notes and/or any of the guarantees as a fraudulent transfer or conveyance, subordinate claims in respect of the exchange notes and/or any of the guarantees and require you to return payments received. If that occurs, you may not receive any payments on the exchange notes or any of the guarantees.” The guarantee of a guarantor will be released:
•upon any sale or other disposition (by merger, amalgamation, consolidation or otherwise) of (i) all or substantially all of the assets of that guarantor or (ii) the capital stock (as defined under “—Certain Definitions”) of such guarantor, in each case, after which that guarantor is no longer a subsidiary of the Issuer; provided, that such sale or other disposition is made in compliance with the covenants described in “—Limitation on Disposition of Capital Stock of the Issuer’s Covered Subsidiaries” and “—Consolidation, Merger, Sale or Conveyance—The Guarantors”;
•if such guarantor merges with and into the Issuer or another guarantor, with the Issuer or such other guarantor surviving such merger;
•if the Issuer exercises its legal defeasance option or covenant defeasance option as described under “—Defeasance” or if the Issuer’s and the guarantors’ obligations under the indenture are discharged; or
•upon the release or discharge of the guarantee by such guarantor of indebtedness under the Credit Agreement, except, in each case, a discharge or release by or as a result of payment under such guarantee (it being understood that a release subject to a contingent reinstatement is still a release, and that, if any such guarantee is so reinstated, such guarantee shall also be reinstated to the extent that such guarantor would then be required to provide a guarantee pursuant to the covenant described under “—Additional Guarantees”).
Interest Rate Adjustment upon Ratings Action
The interest rate payable on the notes will be subject to adjustment from time to time if either S&P or Fitch (each as defined under “—Certain Definitions”) or, in either case, any Substitute Rating Agency downgrades (or downgrades and subsequently upgrades) the credit ratings assigned to the notes, in the manner described below.
If the rating assigned by S&P (or any Substitute Rating Agency therefor) of the notes is downgraded to a rating set forth in the immediately following table, the interest rate on the notes will increase from the interest rate payable thereon on the date of their initial issuance by an amount equal to the percentage set forth opposite the rating in the table below (plus, if applicable, the percentage set forth opposite the rating in the table following the succeeding paragraph):
| | | | | | | | |
S&P Rating(1) | | Percentage |
| BB+ | | 0.25 | % |
| BB | | 0.50 | % |
| BB- | | 0.75 | % |
| B+ or below | | 1.00 | % |
__________________
(1)Including the equivalent ratings of any Substitute Rating Agency therefor.
If the rating assigned by Fitch (or any Substitute Rating Agency therefor) of the notes is downgraded to a rating set forth in the immediately following table, the interest rate on the notes will increase from the interest rate payable thereon on the date of their initial issuance by an amount equal to the percentage set forth opposite the rating in the table below (plus, if applicable, the percentage set forth opposite the rating in the table following the preceding paragraph):
| | | | | | | | |
Fitch Rating(1) | | Percentage |
| BB+ | | 0.25 | % |
| BB | | 0.50 | % |
| BB- | | 0.75 | % |
| B+ or below | | 1.00 | % |
__________________
(1)Including the equivalent ratings of any Substitute Rating Agency therefor.
If at any time the interest rate on the notes has been increased and S&P or Fitch (or, in either case, any Substitute Rating Agency) subsequently upgrades its rating of the notes to any of the ratings set forth above, the interest rate on the notes will be decreased such that the interest rate on the notes equals the interest rate payable on the notes on the date of their initial issuance plus the percentages set forth opposite the ratings from the tables above in effect immediately following the upgrade in rating. If S&P and Fitch (or, in either case, any Substitute Rating Agency) subsequently upgrade their respective ratings of the notes to BBB- (or its equivalent, in the case of any Substitute Rating Agency) or higher, the interest rate on the notes will be decreased to the interest rate payable thereon on the date of their initial issuance (and if one such upgrade occurs and the other does not, the interest rate on the notes will be decreased so that it does not reflect any increase of interest rate attributable to the upgrading rating agency). In addition, the interest rate payable on the notes will permanently cease to be subject to any adjustment described above (notwithstanding any subsequent downgrade in the ratings by either or both rating agencies) if the notes become rated BBB+ (or the equivalent thereof, in the case of any Substitute Rating Agency) or higher by each of S&P and Fitch (or, in either case, a Substitute Rating Agency) (or by one rating agency if the notes are only rated by one rating agency and the Issuer has not obtained a rating on the notes from a Substitute Rating Agency).
Each adjustment required by any downgrade or upgrade in a rating set forth above, whether occasioned by the action of S&P or Fitch (or, in either case, any Substitute Rating Agency), will be made independent of any and all other adjustments; provided, however, that in no event shall (1) the interest rate on the notes be reduced to below the
interest rate payable thereon on the date of their initial issuance or (2) the total increase in the interest rate on the notes exceed 2.00% above the interest rate payable thereon on the date of their initial issuance.
No adjustments to the interest rate on the notes will be made solely as a result of a rating agency ceasing to provide ratings of the notes. If at any time S&P or Fitch ceases to provide ratings of the notes for any reason, the Issuer will use its commercially reasonable efforts to obtain ratings of the notes from a Substitute Rating Agency, if one exists, in which case, for purposes of determining any increase or decrease in the interest rate on the notes pursuant to the tables above, (a) such Substitute Rating Agency will be substituted for the last rating agency to provide a rating of the notes but which has since ceased to provide such rating, (b) the relative rating scale used by such Substitute Rating Agency to assign ratings to senior unsecured debt will be determined in good faith by an independent investment banking institution of national standing appointed by the Issuer and, for purposes of determining the applicable ratings included in the applicable table above with respect to such Substitute Rating Agency, such ratings will be deemed to be the equivalent ratings used by S&P or Fitch, as applicable, in such table and (c) the interest rate on the notes will increase or decrease, as the case may be, such that the interest rate on the notes equals the interest rate payable on the notes on the date of their initial issuance plus the appropriate percentage, if any, set forth opposite the deemed equivalent rating from such Substitute Rating Agency in the applicable table above (taking into account the provisions of clause (b) above) (plus any applicable percentage resulting from a decreased rating by the other rating agency).
For so long as only one of S&P or Fitch provides ratings of the notes and the Issuer does not select a Substitute Rating Agency to replace the other rating agency, any subsequent increase or decrease in the interest rate on the notes necessitated by a downgrade or upgrade in the applicable rating by the rating agency providing the rating shall be twice the applicable percentage set forth in the applicable table above (taking into account the provisions of clause (b) from the immediately preceding paragraph, if applicable). For so long as none of S&P, Fitch or a Substitute Rating Agency provides a rating of the notes, the interest rate on the notes will increase to, or remain at, as the case may be, 2.00% above the interest rate payable on the notes on the date of their initial issuance.
Any interest rate increase or decrease on the notes described above will take effect on the next business day following the date on which a rating change occurs that requires an adjustment in the interest rate on the notes. If the interest rate payable on the notes is increased as described above, the term “interest,” as used with respect to the notes (including in respect of any additional interest payable upon a registration default, as discussed under “Exchange Offer; Registration Rights”), will be deemed to include any such additional interest, unless the context otherwise requires. Ranking
The notes and the guarantees will be the senior unsecured obligations of the obligor group and will rank senior in right of payment to all of the obligations of the obligor group that are expressly subordinated in right of payment to the notes and each guarantee and equally in right of payment with all of the existing and future senior unsecured indebtedness of the obligor group, including the obligations of the obligor group under the FNF Credit Facility, the Credit Agreement and the 5.50% F&G Notes. In addition, the notes and guarantees will effectively rank junior in right of payment to any future secured indebtedness of the Issuer or the guarantors to the extent of the value of the assets securing such indebtedness. As of June 30, 2023, there was no secured indebtedness that would have effectively ranked senior in right of payment to the notes and the guarantees, $1.1 billion of unsecured indebtedness that would have ranked equally in right of payment with the notes and the guarantees and no subordinated indebtedness that would have ranked junior in right of payment to the notes and the guarantees.
The Issuer is a holding company and conducts substantially all of its operations through its subsidiaries, including FGL Insurance and FGL NY Insurance. The notes will be guaranteed by each of the Issuer’s existing and future direct and indirect subsidiaries that are guarantors of the Issuer’s obligations under the Credit Agreement. The notes will not be guaranteed by any of the Issuer’s other subsidiaries, including its insurance subsidiaries. As a result, claims of the holders of the notes and the guarantees will be structurally subordinated to all indebtedness, other liabilities (including liabilities to policyholders and contract holders) and preferred equity of the Issuer’s and the guarantors’ subsidiaries that are not guarantors. The indenture will contain no limitations on the amount of additional indebtedness that the obligor group may incur, and therefore the amount of such indebtedness could be
substantial and, subject to the limitations set forth in the covenant described under “—Limitation on Liens on Capital Stock of the Issuer’s Covered Subsidiaries,” such indebtedness may be secured indebtedness. Therefore, in the event of the liquidation, dissolution, winding up or other bankruptcy event of a subsidiary that is not a guarantor, following payment by such subsidiary of its indebtedness, other liabilities and preferred equity, such subsidiary may not have sufficient assets remaining in order to make payments to the Issuer, as a shareholder or otherwise. In addition, assets of the Issuer could be made available to satisfy claims of FGL Insurance’s policyholders, as discussed under “Risk Factors—Risk Factors Related to the Notes—We are subject to statutory provisions under which our assets could be used to satisfy claims of FGL Insurance’s policyholders.” As of June 30, 2023, the Issuer’s non-guarantor subsidiaries had no aggregate indebtedness. Additional Amounts
All payments made by or on behalf of a foreign guarantor (as defined under “—Certain Definitions”) under or with respect to the notes or its guarantee will be made free and clear of, and without withholding or deduction for, or on account of, any present or future taxes, unless the withholding or deduction of such taxes is then required by law. If any withholding or deduction for, or on account of, any taxes imposed or levied by or on behalf of any Tax Jurisdiction (as defined under “—Certain Definitions”) will at any time be required to be made from any payments made by or on behalf of any foreign guarantor with respect to any guarantee, including, without limitation, payments of principal, premium, or interest, the foreign guarantor will pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments (including Additional Amounts) after such withholding or deduction will equal the respective amounts that would have been received in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts will be payable with respect to:
(1)any taxes that would not have been imposed but for the holder or beneficial owner of the notes being a citizen, resident or national of, or incorporated in or carrying on a business in, the relevant Tax Jurisdiction in which such taxes are imposed, or having any other present or former connection with the relevant Tax Jurisdiction in which such taxes are imposed, other than by the mere acquisition or holding of any note or the enforcement or receipt of payment under or in respect of any note or any guarantee;
(2)any taxes imposed or withheld as a result of the failure of the holder or beneficial owner of the notes to comply with any reasonable written request made to such holder in writing at least 30 days before any such withholding or deduction would be payable by any foreign guarantors to provide timely or accurate information concerning the nationality, residence or identity of such holder or to make any valid or timely declaration or similar claim or satisfy any certification, information or other reporting requirements (to the extent such holder or beneficial owner is legally eligible to do so), which is required or imposed by a statute, treaty, regulation or administrative practice of the relevant Tax Jurisdiction as a precondition to exemption from, or reduction in the rate of withholding or deduction of, such taxes;
(3)any taxes that are imposed or withheld as a result of the presentation of any note for payment (where presentation is required under the indenture) more than 30 days after the relevant payment is first made available for payment to the holder (except to the extent that the holder would have been entitled to Additional Amounts had the note been presented on the last day of such 30 day period);
(4)any estate, inheritance, gift, sale, transfer, use, personal property tax or similar tax or assessment;
(5)any tax which is payable otherwise than by withholding or deduction from payments made under or with respect to the notes or any guarantee;
(6)any tax that was imposed with respect to any payment on a note to any holder who is a fiduciary partnership, limited liability company or any person other than the sole beneficial owner of such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or limited liability company or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual holder of such note;
(7)any taxes that are imposed or withheld pursuant to Sections 1471 through 1474 of the Code as of the issue date of the notes (or any amended or successor version of such sections), any regulations promulgated thereunder, any official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States with respect to the foregoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code; or
(8)any combination of items (1) through (7) above.
In addition to the foregoing, any foreign guarantor will pay and indemnify the holder for any present or future stamp, issue, registration, transfer, court or documentary taxes, or any other excise or property taxes, charges or similar levies or taxes levied by any jurisdiction on the execution, delivery, registration or enforcement of any of the notes, any guarantee (other than on or in connection with a transfer of the notes other than the initial sale thereof by the initial purchasers) or any other document or instrument referred to therein, or the receipt of any payments with respect thereto.
If any foreign guarantor becomes aware that it will be obligated to pay Additional Amounts with respect to any payment under or with respect to the notes or its guarantee, the relevant foreign guarantor will deliver to the trustee on a date at least 30 days prior to the date of such payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to the date of such payment, in which case the relevant foreign guarantor shall notify the trustee promptly thereafter) an officer’s certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The officer’s certificate must also set forth any other information reasonably necessary to enable the paying agent to pay Additional Amounts on the relevant payment date. The trustee shall be entitled to rely solely on such officer’s certificate as conclusive proof that such payments are necessary. The relevant foreign guarantor will provide the trustee with documentation reasonably satisfactory to the trustee evidencing the payment of Additional Amounts.
The relevant foreign guarantor will make all withholdings and deductions required by law and will remit the full amount deducted or withheld to the relevant tax authority in accordance with applicable law. The relevant foreign guarantor will use its reasonable efforts to obtain tax receipts from each tax authority evidencing the payment of any taxes so withheld or deducted. The relevant foreign guarantor will furnish to the holders of notes, within 60 days after the date the payment of any taxes so withheld or deducted is made, certified copies of tax receipts evidencing payment by the foreign guarantor or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments by such entity.
References to the payment of amounts based on the principal amount, interest of any other amount payable under, or with respect to, any of the notes, shall be deemed to include the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
The above obligation will survive any termination, defeasance or discharge of the indenture or any transfer by a holder of its notes, and will apply, mutatis mutandis, to any Tax Jurisdiction applicable to any successor person to any foreign guarantor.
Redemption for Changes in Taxes
The Issuer may redeem the notes at its option, in whole but not in part, at a redemption price equal to 100% of the principal amount of the notes, plus accrued and unpaid interest thereon to, but excluding, the date fixed by the Issuer for such redemption (such date, a “Tax Redemption Date”) and all Additional Amounts, if any, then due and that will become due on the Tax Redemption Date as a result of such redemption or otherwise, if on the next date on which any amount would be payable in respect of the guarantees, (i) the relevant foreign guarantor is or would be required to pay Additional Amounts, (ii) the payment giving rise to such requirement cannot be made by the Issuer or another guarantor without the obligation to pay Additional Amounts and (iii) the relevant foreign guarantor cannot avoid any such payment obligation by taking reasonable measures available as a result of:
(1)any change in, or amendment to or the laws (or any regulations, protocols or rulings promulgated thereunder) of the relevant Tax Jurisdiction affecting taxation which change or amendment has not been publicly announced before and which becomes effective on or after the date of this prospectus (or, if the
relevant Tax Jurisdiction was not a Tax Jurisdiction on the issue date of the notes, the date on which such Tax Jurisdiction became a Tax Jurisdiction under the indenture); or
(2)any change in, or amendment to, the existing official written position or the introduction of a written official position regarding the application, administration or interpretation of such laws, regulations or rulings (including a holding, judgment or order by a court of competent jurisdiction or a change in published administrative practice), which change, amendment, application or interpretation has not been publicly announced and becomes effective on or after the date of this prospectus (or, if the relevant Tax Jurisdiction was not a Tax Jurisdiction on the issue date of the notes, the date on which such Tax Jurisdiction became a Tax Jurisdiction under the indenture).
Notice of any such redemption will be provided to each holder of notes to be redeemed in accordance with the procedures described under “—Optional Redemption”, provided, that the Issuer will not give any such notice of redemption earlier than 30 days prior to the earliest date on which the relevant foreign guarantor would be obligated to make such payment or withholding if a payment under or in respect of the notes or the guarantees were then due, and unless at the time such notice is given, the obligation to pay Additional Amounts remains in effect.
Prior to the furnishing of any notice of redemption pursuant to the immediately preceding paragraph, the Issuer will deliver the trustee an opinion of counsel to the effect that there has been such change or amendment described in paragraphs (1) and (2) above which would entitle the Issuer to redeem the notes. In addition, before the Issuer furnishes the notice of redemption to each holder of notes to be redeemed pursuant to the immediately preceding paragraph, it will deliver to the trustee an officer’s certificate to the effect that the obligation to pay Additional Amounts cannot be avoided by the relevant foreign guarantor (but only if the payment giving rise to such requirement cannot be made by the Issuer or another guarantor without the obligation to pay Additional Amounts) taking reasonable measures available to it.
The trustee will accept such officer’s certificate and opinion of counsel as sufficient evidence of the existence and satisfaction of the conditions precedent as described above, in which event it will be conclusive and binding on the holders of the notes.
Optional Redemption
Prior to the Par Call Date, the Issuer may redeem the notes at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
•(a) the sum of the present values of the remaining scheduled payments of principal of, and interest on, the notes to be redeemed discounted to the redemption date (assuming the notes to be redeemed matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate, plus 50 basis points, less (b) interest accrued to the redemption date; and
•100% of the principal amount of the notes to be redeemed,
plus, in either case, accrued and unpaid interest thereon to, but excluding, the redemption date.
On or after the Par Call Date, the Issuer may redeem the notes at its option, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the notes to be redeemed, plus accrued and unpaid interest thereon to, but excluding, the redemption date.
Notwithstanding the foregoing, installments of interest on the notes that are due and payable on interest payment dates falling on or prior to a redemption date will be payable on the interest payment date to the registered holders as of the close of business on the relevant record date according to the notes and the indenture.
“Treasury Rate” means, with respect to any redemption date, the yield determined by the Issuer in accordance with the following two paragraphs.
The Treasury Rate shall be determined by the Issuer after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Issuer shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the Par Call Date (the “Remaining Life”); (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than the Remaining Life and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.
If on the third business day preceding the redemption date H.15 TCM or any successor designation or publication is no longer published, the Issuer shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to the Par Call Date. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Issuer shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Issuer shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
The Issuer’s actions and determinations in determining the redemption price shall be conclusive and binding for all purposes, absent manifest error.
Notice of any redemption will be mailed or electronically delivered (or otherwise transmitted in accordance with the depositary’s procedures) at least 10 days but not more than 60 days before the redemption date to each holder of notes to be redeemed. Notice of any redemption of notes may, at the Issuer’s discretion, be given subject to one or more conditions precedent, including, but not limited to, completion of a corporate transaction that is pending (such as an equity or equity-linked offering, an incurrence of indebtedness or an acquisition or other strategic transaction involving a change of control of the Issuer). If the redemption or notice of redemption is subject to the satisfaction of one or more conditions precedent, the notice of redemption must describe the conditions and, if applicable, state that the redemption date may be delayed at the Issuer’s discretion until such conditions are satisfied or waived by the Issuer or that, if such conditions are not so satisfied or waived, the redemption may not occur and the redemption notice may be rescinded.
In the case of a partial redemption, selection of the notes for redemption will be made by lot or by such other method as the trustee deems to be fair and appropriate. The notes may be redeemed in part in multiples equal to not less than $2,000 and integral multiples of $1,000 in excess thereof. If any note is to be redeemed in part only, the notice of redemption that relates to the note will state the portion of the principal amount of the note to be redeemed. A new note in a principal amount equal to the unredeemed portion of the note will be issued in the name of the holder of the note upon surrender for cancellation of the original note. For so long as the notes are held by DTC (or
another depositary), the redemption of the notes shall be done in accordance with the policies and procedures of the depositary.
Unless the Issuer defaults in payment of the redemption price, on and after the redemption date, interest will cease to accrue on the notes or portions thereof called for redemption.
The notes will not be entitled to the benefit of any mandatory redemption or sinking fund.
Repurchase upon Change of Control Triggering Event
If a Change of Control Triggering Event with respect to the notes occurs, unless the Issuer has exercised its right to redeem the notes as described under “—Optional Redemption,” the Issuer will be required to make an offer to repurchase all or, at the holder’s option, any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such holder’s notes on the terms set forth in the indenture (a “Change of Control Offer”). In such Change of Control Offer, the Issuer will be required to offer a payment in cash equal to 101% of the principal amount of the notes to be repurchased, plus accrued and unpaid interest thereon (the “Change of Control Payment”) to, but excluding, the repurchase date (the “Change of Control Payment Date”).
Within 30 days following the date of any Change of Control Triggering Event with respect to the notes or, at the Issuer’s option, prior to any Change of Control with respect to the notes but after the public announcement of the transaction or transactions that constitutes or may constitute a Change of Control with respect to the notes, the Issuer will mail a notice to each holder (with a copy to the trustee) describing the transaction or transactions that constitute or will constitute such Change of Control Triggering Event and offering to repurchase the notes on the Change of Control Payment Date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed, pursuant to the procedures required by the indenture and described in such notice. The notice shall, if mailed prior to the date of consummation of the Change of Control, state that the offer to repurchase is conditioned on the Change of Control Triggering Event occurring on or prior to the Change of Control Payment Date. The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Triggering Event provisions of the indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control Triggering Event provisions of the indenture by virtue of such compliance.
On the Change of Control Payment Date, the Issuer will, to the extent lawful:
•accept for payment all notes or portions of notes properly tendered pursuant to the Change of Control Offer;
•deposit with the paying agent an amount equal to the Change of Control Payment in respect of all notes or portions of notes properly tendered; and
•deliver or cause to be delivered to the trustee the notes properly accepted, together with an officer’s certificate stating the aggregate principal amount of notes or portions of notes being repurchased by the Issuer.
The paying agent for the notes will promptly mail to each holder of notes properly tendered the Change of Control Payment for such notes, and the trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each such holder a new note equal in principal amount to any unpurchased portion of the notes surrendered, if any; provided, that each such new note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.
The Issuer will not be required to make a Change of Control Offer upon a Change of Control Triggering Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Issuer and such third party purchases all notes properly tendered and not withdrawn under
its offer. In the event that such third party terminates or defaults on its offer, the Issuer will be required to make a Change of Control Offer, treating the date of such termination or default as though it were the date of the Change of Control Triggering Event. In addition, the Issuer will not purchase any notes if there has occurred and is continuing on the Change of Control Payment Date an Event of Default under the indenture, other than a default in the payment of the Change of Control Payment.
Certain Covenants of the Issuer
The Issuer has agreed to some restrictions on the Issuer’s and the guarantors’ activities for the benefit of holders of the notes. The restrictive covenants summarized below will apply, unless the covenants are waived or amended, so long as any of the notes are outstanding.
Other than the covenants described in “—Consolidation, Merger, Sale or Conveyance,” “—Limitation on Liens on Capital Stock of the Issuer’s Covered Subsidiaries” and “—Limitation on Disposition of Capital Stock of the Issuer’s Covered Subsidiaries” below, the indenture and the notes do not contain other provisions that afford holders of the notes protection in the event the Issuer:
•subject to the provisions described under “—Repurchase upon Change of Control Triggering Event,” engages in a change of control transaction;
•subject to the covenant described in “—Limitation on Liens on Capital Stock of the Issuer’s Covered Subsidiaries,” issues secured debt or secures existing unsecured debt;
•issues debt securities or otherwise incurs additional unsecured indebtedness or other obligations;
•purchases or redeems or makes any payments in respect of capital stock or other securities ranking junior in right of payment to the notes;
•sells assets;
•pays dividends;
•enters into transactions with related parties; or
•conducts other similar transactions that may adversely affect the holders of the notes.
See “Risk Factors—Risk Factors Related to the Notes—The indenture contains only limited protection for holders of the notes and, except in certain limited circumstances, will not restrict the Issuer’s ability to incur additional debt, repurchase its securities or take other actions that could negatively impact holders of the notes” for a further discussion of the limited protections provided to holders of the notes. Certain Definitions
Set forth below are certain of the defined terms used in the indenture:
“Below Investment Grade Rating Event” with respect to the notes means that the ratings of the notes are downgraded from an Investment Grade Rating by each of the Rating Agencies to below an Investment Grade Rating by each of the Rating Agencies on any date during the period commencing upon the first public notice of the occurrence of a Change of Control or the Issuer’s intention to effect a Change of Control and ending 60 days following public notice of the occurrence of the related Change of Control (which 60-day period shall be extended so long as the ratings of the notes are under publicly announced consideration for possible downgrade by either of the Rating Agencies); provided, that a Below Investment Grade Rating Event otherwise arising by virtue of a particular reduction in ratings shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Below Investment Grade Rating Event for purposes of the definition of “Change of Control Triggering Event” hereunder) if the Rating Agencies making the reduction in ratings to which this definition would otherwise apply do not announce or publicly confirm or inform the holders of the notes in writing at their request that the reduction was the result, in whole or in part, of any event or circumstance comprising or arising as a
result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Below Investment Grade Rating Event).
“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.
“Change of Control” means the occurrence of any of the following:
•the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Issuer and its subsidiaries taken as a whole to any Person or group of related Persons for purposes of Section 13(d) of the Exchange Act (a “Group”) other than to one or more Permitted Holders, the Issuer or one of its subsidiaries;
•the approval by the holders of the Issuer’s common stock of any plan or proposal for the liquidation or dissolution of the Issuer; or
•the consummation of any transaction (including, without limitation, any merger or consolidation), the result of which is that any Person or Group, other than a Permitted Holder, becomes the beneficial owner, directly or indirectly, of more than 50% of the then outstanding number of shares of the Issuer’s Voting Stock.
Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control if (1) the Issuer (or its successor) becomes a direct or indirect wholly owned subsidiary of a holding company and (2)(A) the direct or indirect holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Issuer’s Voting Stock immediately prior to that transaction or (B) immediately following that transaction, no Person or Group (other than a Permitted Holder or a holding company satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly of more than 50% of the Voting Stock of such holding company.
“Change of Control Triggering Event” means the occurrence of both a Change of Control and a Below Investment Grade Rating Event in respect of such Change of Control.
“Covered Guarantor” means any guarantor that is a Covered Subsidiary.
“Covered Subsidiary” means any subsidiary of the Issuer, the total assets of which constitute at least 10% of the total assets of the Issuer and its consolidated subsidiaries (including that subsidiary), based on the most recent quarterly (including fiscal year-end) balance sheet of the subsidiary and on the most recent quarterly (including fiscal year-end) consolidated balance sheet of the Issuer. As of the date of this prospectus, CF Bermuda, FGL US Holdings, FGLH, FGL Insurance and F&G Life Re are the Issuer’s only subsidiaries that meet the definition of Covered Subsidiary.
“Credit Agreement” means that certain Credit Agreement, dated as of November 22, 2022, among the Issuer, the guarantors from time to time party thereto and the banks and other financial institutions from time to time parties thereto as agents and lenders, and any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, and in each case as it may be further amended, restated, modified, renewed, refunded, replaced or refinanced from time to time.
“Fitch” means Fitch Ratings, Inc. and its successors.
“foreign guarantor” means any guarantor that is organized or existing under the laws of, or otherwise treated as resident for tax purposes in, a jurisdiction other than the United States, any state thereof or the District of Columbia.
“guarantee” means, individually, any guarantee of payment of the notes by a guarantor pursuant to the terms of the indenture and any supplemental indenture thereto, and, collectively, all such guarantees. Each guarantee will be in the form prescribed by the indenture.
“guarantor” means:
(1)each subsidiary of the Issuer on the date of the indenture that guarantees indebtedness of the Issuer under the Credit Agreement and is a signatory to the indenture; and
(2)any subsidiary that executes a supplemental indenture in accordance with the provisions of the indenture as described under “—Additional Guarantees”;
and their respective successors and assigns, in each case, until such person is released from its guarantee in accordance with the terms of the indenture.
“Investment Grade Rating” means a rating equal to or higher than BBB- (or the equivalent) by S&P and Fitch, respectively, or the equivalent investment grade credit rating from any additional Rating Agency or Rating Agencies selected by the Issuer.
“lien” means any mortgage, pledge, lien, security interest or other encumbrance.
“Moody’s” means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation, and its successors.
“Permitted Holder” means any or a combination of any of:
(1)Fidelity National Financial, Inc. (or its successor);
(2)any affiliate or related party of any Person specified in clause (1); and
(3)any Person both the capital stock and the Voting Stock of which (or in the case of a trust, the beneficial interests in which) are owned 50% or more by Persons specified in clauses (1) and (2) or any Group in which the Persons specified in clauses (1) and (2) own more than a majority of the voting power of the Voting Stock held by such Group, and any Person that is a member of any such Group.
“permitted lien” means (i) liens on the capital stock of a Covered Subsidiary to secure indebtedness incurred to finance the purchase price of such capital stock; (ii) liens on the capital stock of a Covered Subsidiary existing at the time such person becomes a Covered Subsidiary (including, without limitation, by merger into or consolidation with the Issuer or a Covered Subsidiary); provided, that any such lien is not incurred in anticipation of such person becoming a Covered Subsidiary; (iii) liens on the capital stock of a Covered Subsidiary to secure indebtedness to the Issuer or a Covered Subsidiary; provided, that such indebtedness is owned or held by the Issuer or a Covered Subsidiary; and (iv) extensions, renewals, refinancings or replacements of any lien referred to in the foregoing clauses (i), (ii) and (iii); provided, however, that any liens permitted by any of the foregoing clauses (i) and (ii) shall not extend to or cover any additional capital stock of a Covered Subsidiary, other than the property that previously secured such lien.
“Person” means any individual, firm, limited liability company, corporation, partnership, association, joint venture, tribunal, trust, government or political subdivision or agency or instrumentality thereof, or any other entity or organization and includes a “person” as used in Section 13(d)(3) of the Exchange Act.
“Rating Agencies” means (1) each of S&P and Fitch and their respective successors; and (2) if either of S&P or Fitch ceases to rate the notes or fails to make a rating of the notes publicly available for reasons outside of the Issuer’s control, a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act, that the Issuer selects (as certified by an officer of the Issuer to the trustee) as a replacement agency for S&P or Fitch, respectively, as the case may be.
“S&P” means S&P Global Ratings Services (a division of S&P Global Inc.) and its successors.
“Substitute Rating Agency” means Moody’s, as selected by the Issuer in its discretion at any time and from time to time as a replacement agency for S&P or Fitch, respectively, as the case may be, as certified to the trustee by a resolution of the Issuer’s board of directors.
“Tax Jurisdiction” means any jurisdiction in which any foreign guarantor is then incorporated, organized, engaged in business or resident for tax purposes, any political subdivision or governmental authority thereof or therein having power to tax or any jurisdiction from or through which payment under or with respect to the notes or the guarantees is made, excluding the United States and any political subdivision thereof.
“Voting Stock” of any specified Person as of any date means the capital stock of such Person that is at the time entitled to vote generally in the election of the board of directors of such Person.
Consolidation, Merger, Sale or Conveyance
The Issuer. As long as any notes are outstanding, the Issuer may not (i) consolidate with or merge into any other person, or convey, transfer, sell, or lease or otherwise dispose of the Issuer’s properties and assets substantially as an entirety, in one or more related transactions, to any person or (ii) permit any person to consolidate with or merge into the Issuer, unless:
•(a) the Issuer is the surviving entity or (b) if the Issuer is not the surviving entity, the person formed by the consolidation or into which the Issuer is merged or the person to which the Issuer’s properties and assets are so conveyed, transferred, sold, assigned or leased, shall be a corporation, partnership, limited liability company, limited liability partnership, trust or other person organized and existing under the laws of the United States, any state within the United States or the District of Columbia, and shall expressly assume, in the form of a supplemental indenture satisfactory to the trustee, the payment of all amounts due on the notes and the performance of all of the Issuer’s other covenants and other obligations under the indenture;
•immediately after giving effect to such transaction, no Event of Default (as defined herein), and no event that, after notice or lapse of time or both, would become an Event of Default, will have occurred and be continuing; and
•the Issuer has delivered an officer’s certificate and an opinion of counsel to the trustee, each stating that such transaction complies with the applicable provisions of the indenture and the execution of any supplemental indenture required in connection with such transaction is authorized and permitted under the indenture and all covenants and conditions precedent provided for in the indenture relating to the execution of such supplemental indenture have been performed, satisfied or otherwise complied with.
The above provision shall not prohibit:
•the direct or indirect conveyance or transfer of all or any portion of the capital stock, assets or liabilities of any of the Issuer’s direct or indirect wholly owned subsidiaries to the Issuer or any of its direct or indirect wholly owned subsidiaries; or
•the consolidation or merger of any of the Issuer’s direct or indirect wholly owned subsidiaries with and into the Issuer.
If the conditions described above are satisfied with respect to the notes, the Issuer will not need to obtain the approval of the holders of the notes in order to consolidate or merge or to sell its assets. Also, these conditions will apply only if the Issuer wishes to consolidate with or merge into any other person, or convey, transfer, sell, or lease or otherwise dispose of its properties and assets substantially as an entirety to another person. The Issuer will not need to satisfy these conditions if the Issuer enters into other types of transactions, including any transaction in which the Issuer acquires the stock or assets of another entity, any transaction that involves a change of control but in which the Issuer does not consolidate or merge and any transaction in which the Issuer does not convey, transfer, sell, or lease or otherwise dispose of its properties and assets substantially as an entirety. It is possible that this type of transaction may result in a reduction in the Issuer’s credit rating, or may impair its operating results or its financial condition. Holders of the notes, however, will have no approval right with respect to any transaction of this type.
The Guarantors. As long as any notes are outstanding, each guarantor may not, and the Issuer may not permit any guarantor to, (i) consolidate with or merge into any other person, or convey, transfer, sell, or lease or otherwise
dispose of such guarantor’s properties and assets substantially as an entirety, in one or more related transactions, to any person or (ii) permit any person to consolidate with or merge into such guarantor, unless:
•(a) such guarantor is the surviving entity or (b) if such guarantor is not the surviving entity, the person formed by the consolidation or into which such guarantor is merged or the person to which such guarantor’s properties and assets are so conveyed, transferred, sold, assigned or leased, shall be a corporation, partnership, limited liability company, limited liability partnership, trust or other person organized and existing under the laws of the United States, any state within the United States or the District of Columbia, and shall expressly assume, in the form of a supplemental indenture satisfactory to the trustee, the payment of all amounts due under such guarantor’s guarantee and the performance of all of such guarantor’s other covenants and other obligations under the indenture;
•immediately after giving effect to such transaction, no Event of Default, and no event that, after notice or lapse of time or both, would become an Event of Default, will have occurred and be continuing; and
•such guarantor has delivered an officer’s certificate and an opinion of counsel to the trustee, each stating that such transaction complies with the applicable provisions of the indenture and the execution of any supplemental indenture required in connection with such transaction is authorized and permitted under the indenture and all covenants and conditions precedent provided for in the indenture relating to the execution of such supplemental indenture have been performed, satisfied or otherwise complied with.
The immediately preceding paragraph shall not prohibit any guarantor from consolidating or merging with or into or transferring all or part of its properties and assets to the Issuer or another guarantor.
Limitation on Liens on Capital Stock of the Issuer’s Covered Subsidiaries
As long as any notes are outstanding, the Issuer will not, and will not permit any subsidiary to, directly or indirectly, create, assume, incur, guarantee or otherwise permit to exist any indebtedness for borrowed money that is secured, directly or indirectly, by any lien, other than a permitted lien, on any shares of capital stock of any Covered Subsidiary (whether such shares of capital stock are owned as of the date of the indenture or acquired after the date of the indenture), unless the notes are secured equally and ratably with such indebtedness for as long as such indebtedness is so secured; provided, that the foregoing will not prohibit or limit any lien required by law, any regulation or order of any governmental or insurance regulatory authority.
Limitation on Disposition of Capital Stock of the Issuer’s Covered Subsidiaries
As long as any notes are outstanding and except in a transaction otherwise governed by the indenture, the Issuer will not, and will not permit any subsidiary to, directly or indirectly, 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 preferred stock having no voting rights of any kind) of any Covered Subsidiary.
The above limitation will not apply to any issuance, sale, assignment, transfer or other disposition:
•that is for at least fair market value (as determined by the Issuer’s board of directors acting in good faith) subject to the provisions described under “—Consolidation, Merger, Sale or Conveyance” above;
•to the Issuer, any parent of the Issuer or any of its directly or indirectly wholly owned subsidiaries; or
•if required by law, any regulation or order of any court of competent jurisdiction or governmental or insurance regulatory authority.
Notwithstanding the foregoing, the Issuer may also merge or consolidate any of its subsidiaries into or with another of the Issuer’s direct or indirect subsidiaries.
Additional Guarantees
If, after the date of the indenture, any subsidiary guarantees (or becomes a co-borrower or co-issuer in respect of) the Issuer’s obligations under the Credit Agreement, within 15 days of such event, the Issuer shall cause such subsidiary to become a guarantor under the indenture by causing each such subsidiary to execute and deliver to the trustee a supplemental indenture in the form attached as an exhibit to the indenture pursuant to which such subsidiary shall fully and unconditionally guarantee all of the Issuer’s obligations under the notes and the indenture. Concurrently with the execution and delivery of such supplemental indenture, the Issuer shall also deliver to the trustee an officer’s certificate and an opinion of counsel stating that such guarantee complies with the applicable provisions of the indenture and the execution of such supplemental indenture is authorized and permitted under the indenture and all covenants and conditions precedent provided for in the indenture relating to the execution of such supplemental indenture have been performed, satisfied or otherwise complied with.
Reports
As long as any notes are outstanding, the Issuer will:
•furnish to the trustee, within 30 days after the Issuer is required to file the same with the SEC, the reports required by Section 314(a)(1) of the Trust Indenture Act of 1939 (the “Trust Indenture Act”), specifically, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may from time to time by rules and regulations prescribe) which the Issuer is required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Issuer is not required to file information, documents or reports pursuant to either of such sections, then to furnish to the trustee and file with the SEC, in accordance with rules and regulations prescribed from time to time by the SEC, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Exchange Act, in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations;
•furnish to the trustee and the SEC, in accordance with the rules and regulations prescribed from time to time by the SEC and as required by Section 314(a)(2) of the Trust Indenture Act, such additional information, documents and reports with respect to compliance by the Issuer with the conditions and covenants provided for in the indenture, as may be required from time to time by such rules and regulations; and
•furnish to holders of the notes, within 30 days after the furnishing thereof with the trustee, as required by Section 314(a)(3) of the Trust Indenture Act and in the manner and to the extent provided in Section 313(c) thereof, such summaries of any information, documents and reports required to be filed by the Issuer pursuant to the foregoing two paragraphs, as may be required by the rules and regulations prescribed from time to time by the SEC.
Delivery of such reports, information and documents to the trustee is for informational purposes only and the trustee’s receipt of such will not constitute constructive notice of any information contained therein, including the Issuer’s compliance with any of its covenants under the indenture (as to which the trustee is entitled to rely exclusively on officer’s certificates). The trustee shall have no duty to review or make independent investigation with respect to any of the foregoing received by the trustee, and shall hold the same solely as repository.
Events of Default
An Event of Default with respect to the notes is defined as:
•default in the payment of any interest on any of the notes when due and payable, and continuance of such default for a period of 30 days;
•default in the payment of any principal of, and premium (if any) on, any of the notes when due and payable either at maturity, upon any redemption, by declaration of acceleration or otherwise;
•failure by the Issuer or any guarantor in the performance, or breach, of any other covenant or agreement contained in the notes or in the indenture and relating to the notes and continuance of that failure for a period of 90 days after notice by the trustee or by the holders of at least 25% in principal amount of the outstanding notes;
•a default under the Issuer’s or any Covered Guarantor’s outstanding indebtedness (other than the notes or the guarantees) in the payment by the Issuer or such Covered Guarantor, when due, of an aggregate principal amount of such indebtedness exceeding $75,000,000, or default under any such indebtedness (other than the notes or the guarantees) in an aggregate principal amount exceeding $75,000,000 becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, in each case without such acceleration having been rescinded or annulled, or without such indebtedness having been paid in full, or without there having been deposited into trust a sum of money sufficient to pay in full such indebtedness, within ten days after notice by the trustee or by the holders of at least 25% in principal amount of the outstanding notes;
•except as permitted by the indenture, any guarantee shall be held by a court of competent jurisdiction in any non-appealable judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or any guarantor, or any Person acting on behalf of any such guarantor, shall deny or disaffirm in writing its obligations under its guarantee; or
•the Issuer or any Covered Guarantor files for bankruptcy or other events of bankruptcy or insolvency proceedings relating to the Issuer or any Covered Guarantor occur according to the terms of the indenture.
The trustee will notify the holders of notes of any continuing default of which the trustee has received notice within the later of 90 days after the occurrence of the default or 60 days after such default is actually known to the trustee. Notwithstanding the foregoing, except in the case of default in the payment of the principal of, or premium (if any) or interest on, any of the notes, the trustee may withhold notice if the trustee in good faith determines that the withholding of notice is in the interests of the holders of the notes.
If an Event of Default with respect to the notes has occurred and is continuing (other than with respect to certain events of bankruptcy, insolvency or reorganization described in the fifth bullet point above), either the trustee or the holders of not less than 25% in aggregate principal amount of the notes then outstanding may declare the principal amount of all notes to be due and payable immediately. An Event of Default relating to a bankruptcy, insolvency or reorganization described in the fifth bullet point above will cause all of the notes to become immediately due and payable without any declaration or other act by the trustee or the holders. At any time after a declaration of acceleration in respect of the notes 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 notes may, under certain circumstances, rescind and annul such acceleration.
Subject to the provisions of the indenture relating to the duties of the trustee, in case an Event of Default has occurred and is continuing, the trustee will not be under any obligation to exercise any of the trusts or powers vested in it by the indenture at the request or direction of any of the holders, unless such holders have offered to the trustee security or indemnity reasonably satisfactory to it against any loss, liability or expense. The holders of a majority in aggregate principal amount of the notes affected then outstanding will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee under the indenture or exercising any trust or power conferred on the trustee with respect to the notes; provided, that the trustee may refuse to follow any direction which is in conflict with any law or the indenture or that the trustee determines is unduly prejudicial to the rights of any other holder of a note (it being understood that the trustee does not have an affirmative duty to ascertain whether or not any such directions are unduly prejudicial to such holders) or that would involve the trustee in personal liability.
No holder of the notes will have any right by virtue or by availing of any provision of the indenture to institute any proceeding at law or in equity or in bankruptcy or otherwise upon or under or with respect to the indenture or for any remedy thereunder, unless, subject to the terms of the indenture, the holder has previously given the trustee
written notice of default and the continuance thereof and unless the holders of at least 25% in aggregate principal amount of the outstanding notes have made written request to the trustee to institute such proceeding in its own name, and have offered to the trustee such indemnity as it may require, and the trustee shall have failed to institute such proceeding within 60 days after its receipt of such notice, request and offer of indemnity, and the trustee shall not have received from the holders of a majority in aggregate principal amount of the outstanding notes a direction inconsistent with such request. However, the right of a holder of any note to receive payment of the principal of, and premium (if any) and interest on, such note on or after the due dates expressed in such note, or to institute suit for the enforcement of any such payment on or after such dates, shall not be impaired or affected without the consent of such holder.
Under the indenture, the Issuer will be required to provide an officer’s certificate to the trustee promptly upon the Issuer becoming aware of any default or Event of Default that has occurred and is continuing, and describe such default or Event of Default, the status thereof and what action the Issuer is taking or proposes to take with respect thereto; provided, that the Issuer shall provide such certification at least annually whether or not they know of any default or Event of Default.
Defeasance
Legal Defeasance. If there is a change in U.S. federal tax law or IRS ruling of the nature described in the sixth bullet below with respect to the notes, the Issuer can legally release itself and the guarantors from all payment and other obligations on the notes and the guarantees. This is called legal defeasance. To do so, each of the following must occur:
•The Issuer must deposit in trust for the benefit of all holders of the notes an amount of money, U.S. government or U.S. government agency securities (or a combination thereof) that will, in the written opinion of a nationally recognized accounting firm delivered to the trustee, generate enough cash to pay and discharge the principal of, and premium (if any) and interest on, the notes;
•The legal defeasance does not result in a breach or violation of, or constitute a default under, the indenture, the Credit Agreement or any other material agreement or instrument to which the Issuer or any Covered Subsidiary or guarantor is a party or is 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 notes to be legally defeased will have occurred and be continuing on the date of the trust deposit described in the first bullet point above and at any time during the period ending on the 91st day after such date;
•The Issuer must deliver to the trustee an officer’s certificate and an opinion of counsel, each stating that all conditions precedent to legal defeasance have been complied with;
•The Issuer must deliver to the trustee an officer’s certificate as to its solvency and the absence of intent of preferring holders of the notes over other creditors; and
•The Issuer must deliver to the trustee an opinion of counsel to the effect that the holders of the notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such legal 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 legal defeasance had not occurred, and such opinion of counsel must refer to and be based upon a letter ruling of the IRS received by the Issuer, a revenue ruling published by the IRS or a change in applicable U.S. federal income tax law occurring after the date of the indenture.
If the Issuer ever did accomplish legal defeasance with respect to the notes, an investor in the notes would have to rely solely on the trust deposit for payments on its notes and such investor could not look to the Issuer or the guarantors for payment in the event of any shortfall.
Covenant Defeasance. Under current U.S. federal tax law, the Issuer can make the same type of trust deposit described above under “—Legal Defeasance” with respect to the notes and have the obligations of the obligor group
released from certain restrictive covenants relating to the notes. This is called covenant defeasance. In that event, an investor in the notes would lose the protection of those restrictive covenants. In order to achieve covenant defeasance, each of the following must occur:
•The Issuer must deposit in trust for the benefit of the holders of the notes an amount of money, U.S. government or U.S. government agency securities (or a combination thereof) that will, in the written opinion of a nationally recognized accounting firm delivered to the trustee, generate enough cash to pay and discharge the principal of, and premium (if any) and interest on, the notes;
•The covenant defeasance does not result in a breach or violation of, or constitute a default under, the indenture, the Credit Agreement or any other material agreement or instrument to which the Issuer or any Covered Subsidiary or guarantor is a party or is 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 notes to be defeased will have occurred and be continuing on the date of the trust deposit described in the first bullet point above and at any time during the period ending on the 91st day after such date;
•The Issuer must deliver to the trustee an officer’s certificate and an opinion of counsel, each stating that all conditions precedent to covenant defeasance have been complied with; and
•The Issuer must deliver to the trustee an opinion of counsel to the effect that the holders of the notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such 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 covenant defeasance had not occurred.
If the Issuer accomplishes covenant defeasance with respect to the notes, the following provisions of the indenture and the notes would no longer apply: the covenants described above under “—Certain Covenants of the Issuer—Limitation on Liens on Capital Stock of the Issuer’s Covered Subsidiaries” and “—Certain Covenants of the Issuer—Limitation on Disposition of Capital Stock of the Issuer’s Covered Subsidiaries” and any Events of Default relating to the breach of these covenants.
If the Issuer accomplishes covenant defeasance with respect to the notes, an investor in the notes can still look to the Issuer for repayment of its notes in the event of any shortfall in the trust deposit. Investors in the notes should note, however, that if one of the remaining Events of Default occurred, such as the cross-default events described in the fourth bullet point above under “—Events of Default” or the Issuer’s bankruptcy or insolvency described in the fifth bullet point above under “—Events of Default,” and an investor’s notes became immediately due and payable, there may be a shortfall. Depending on the event causing the default, such investor may not be able to obtain payment to cover the shortfall.
The Issuer’s obligations under the indenture and the notes and the guarantors’ obligations under the guarantees, other than the Issuer’s obligations and the guarantors’ obligations under the covenants defeased, will remain in full force and effect.
Modification and Waiver
Certain modifications and amendments of the indenture (which, generally, either benefit or do not materially and adversely affect the holders of outstanding notes) may be made by the obligor group and the trustee without the consent of holders of the notes. Other modifications and amendments of the indenture require the consent of the holders of not less than a majority in aggregate principal amount of the outstanding notes of all series affected by such modifications and amendments. However, no modification or amendment may, without the consent of the holder of each affected outstanding note,
•change the final maturity of such note;
•reduce the principal amount of such note or any premium thereon;
•reduce the rate or extend the time of payment of interest on such note;
•reduce any amount payable upon redemption of such note;
•change the currency in which payments are made or the place where payments on such note are payable;
•impair or affect the right of any holder to institute suit for payment of such note;
•release any guarantor from any of its obligations under its guarantee or the indenture, except as permitted by the indenture; or
•reduce the percentage of notes, the consent of the holders of which is required for any such modification or amendment to the indenture.
The holders of not less than a majority in principal amount of the outstanding notes may, on behalf of the holders of all the notes, waive any past default under the indenture, except a default in the payment of the principal of, or premium (if any) or interest on, the notes.
Governing Law; Jury Trial Waiver
The indenture will provide that it, the guarantees and the notes will be governed by, and construed in accordance with, the laws of the State of New York. The indenture will provide that any legal suit, action or proceeding arising out of or based upon the indenture or the transactions contemplated thereby may be instituted in the federal courts of the United States of America located in the City of New York or the courts of the State of New York in each case located in the City of New York, and each party to the indenture will submit to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. The indenture will provide that the Issuer, the trustee and each holder of a note by its acceptance thereof, irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to the indenture, the notes, or any transaction contemplated thereby.
Concerning the Trustee
Citibank, N.A. will be the trustee under the indenture and has been appointed by the Issuer as the paying agent and registrar with regard to the notes. The Issuer does, and from time to time may continue to, conduct banking transactions, including lending transactions, or maintaining deposit accounts with affiliates of Citibank, N.A. in the ordinary course of business. If the trustee becomes a creditor of the Issuer, the indenture limits the right of the trustee to obtain payment of claims in certain cases, or to realize on certain property received in respect of any such claim as security or otherwise. The trustee will be permitted to engage in other transactions; however, if it acquires any conflicting interest it must eliminate such conflict within 90 days, apply to the SEC for permission to continue as trustee (if the indenture has been qualified under the Trust Indenture Act) or resign.
LIMITATIONS ON VALIDITY AND ENFORCEABILITY OF CF BERMUDA GUARANTEE
Set out below is a summary of certain limitations on the enforceability of the guarantee of CF Bermuda. It is a summary only. The application of these laws in multiple jurisdictions could trigger disputes over which jurisdiction’s law should apply, and could adversely affect your ability to enforce your rights and to collect payment in full under the exchange notes and the guarantees.
CF Bermuda is a Bermuda exempted company and is subject to Bermuda laws. Bermuda is a self-governing overseas territory of the United Kingdom. Bermuda’s legal system is based upon the English legal system. Bermuda has its own legislature, which enacts legislation for Bermuda. In addition, certain U.K. legislation is extended to Bermuda by the U.K. legislature and is effective in Bermuda. Where issues of common law in Bermuda have not been expressly considered by the Bermuda courts, the Bermuda courts often find assistance in the consideration of such issues in reasoned judgments of the English courts, as well as the courts of other common law jurisdictions, where appropriate. Their persuasiveness depends on the strength of the judicial reasoning and the standing of the judge who issued the decision. The Judicial Committee of the Privy Council sitting in London is the highest appellate court for Bermuda and decisions of that Committee are formally binding upon Bermuda courts.
Bermuda’s insolvency regime is generally premised upon the concept of pari passu distribution of assets amongst the creditors of the insolvent company. An insolvent Bermuda company may be the subject in Bermuda of liquidation proceedings. In the context of insolvency, the other proceedings that may be used in Bermuda are a scheme of arrangement or receivership, but these are not exclusive to insolvency. There are two types of insolvent liquidations in Bermuda: voluntary and compulsory. The former is usually referred to as a “creditors voluntary liquidation,” and is commenced by the shareholders of the company (it is an out of court procedure); while the latter is commenced by way of a petition presented to the Supreme Court of Bermuda (the “Bermuda Court”) by a creditor or shareholder or the company itself, upon which the court is asked to make a winding-up order. There are a number of circumstances provided for in Section 161 of the Companies Act in which a Bermuda company may be wound up by the court, the most common of which is when the company is unable to pay its debts.
In the case of the company’s inability to pay its debts, the petition can be presented by either the company or a creditor or a shareholder of the company (provided the shareholder has a tangible interest in the liquidation). For this purpose, “creditor” includes a contingent or prospective creditor. Pursuant to the Companies Act, a company will be deemed to be unable to pay its debts if:
•a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding five hundred dollars then due, has served on the company, by leaving it at the registered office of the company, a demand requiring the company to pay the sum so due and the company has for three weeks thereafter neglected to pay the sum or to secure or compound for it to the reasonable satisfaction of the creditor;
•the execution or other process issued on a judgment, decree or order of any court in favor of a creditor of the company is returned unsatisfied in whole or in part; or
•it is proved to the satisfaction of the Bermuda Court that the company is unable to pay its debts. In determining whether a company is unable to pay its debts, the court will take into account the contingent and prospective liabilities of the company.
Upon the appointment of a liquidator (initially a provisional liquidator), the powers of the directors of a Bermuda company will, subject to any order of the Bermuda Court to the contrary, cease. The liquidator is required to collect in the assets and after payment of secured creditors (out of assets subject to their security) and the expenses of the liquidation, distribute them pari passu amongst unsecured creditors (with certain unsecured preferential debts, such as employee claims and government taxes, ranking in priority of payment ahead of ordinary unsecured creditors). Secured creditors are entitled to enforce their security outside of the liquidation proceeding.
There are no bankruptcy treaties in force under the laws of Bermuda.
Under Bermuda law, certain transactions may be set aside or otherwise be varied or amended by order of a Bermuda court when a Bermuda company goes into liquidation. This occurs where an impugned transaction is a
fraudulent preference or a transaction that constitutes a fraud on creditors or, under certain circumstances, a floating charge.
Section 237 of the Companies Act provides that certain transactions in favor, or for the benefit, of any creditors, within the six months prior to the commencement of a company’s liquidation, may be set aside if the transactions were made with the dominant intention of preferring those creditors over others and the company was insolvent at the time of the transaction or rendered insolvent by it.
Under Section 166 of the Companies Act, any disposition of the property of a Bermuda company made after the commencement of a court-ordered winding-up is, unless the court orders otherwise, void. Under section 246 of the Companies Act, any person that is found in the course of a liquidation of a Bermuda company, to have been knowingly party to the carrying on of the business of the company with intent to defraud creditors of the company or creditors of any other person, or for any fraudulent purpose, may be held by the Bermuda Court to be personally liable for the debts or other liabilities of the company.
Any floating charge created by a Bermuda company within the 12 months immediately preceding the commencement of the company’s winding-up shall, except to the amount of any cash paid to the company at the time of or after the creation of, and in consideration for, the charge, be invalid unless it is proved that the company was solvent immediately after the creation of the charge.
In addition, under Part IVA of the Conveyancing Act 1983 of Bermuda, certain dispositions of a Bermuda company’s property are voidable if (i) the disposition was a disposition the dominant purpose of which is to put the property which is the subject of that disposition beyond the reach of a person or a class of persons who is making, or may at some time make, a claim against the company; and (ii) the disposition is at an undervalue. Where the person seeking to set aside the disposition was not, on the date of the disposition, a person to whom an obligation was owed by the transferor, the Bermuda Court will not set aside the disposition unless it is satisfied that that person was, on the date of disposition, reasonably foreseeable by the transferor as a person to whom an obligation might become owed by the transferor. The limitation period on such dispositions is six years from the transfer, or, if later, from the time when the obligation or cause of action in favor of the creditor arose or accrued. These provisions apply whether or not the company is insolvent or in liquidation.
In the winding up of an insolvent Bermuda company, set-off of mutual credits, mutual debts or other mutual dealings subsisting at the date of the liquidation is mandatory and no other set-off is permissible.
SERVICE OF PROCESS AND ENFORCEMENT OF CIVIL LIABILITIES
CF Bermuda is incorporated under the laws of Bermuda. A portion of the assets of CF Bermuda are located outside the United States. As a result, an investor may need to effect service of process upon CF Bermuda in Bermuda (at its registered office).
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 CF Bermuda (or its directors and officers, if applicable) depends on an application of Bermuda’s common law rules relating to the enforcement of foreign judgments. By way of summary only, Bermuda’s common law provides that (outside the bankruptcy context) a U.S. judgment (being a final and conclusive judgment for a debt or a definite sum of money not being in respect of taxes or a fine or other penalty) will be enforceable in Bermuda by an action for the amount of the judgment, and the only grounds for resisting the enforcement of such a judgment would be (1) the U.S. court that entered the judgment is not recognized by the Bermuda court as having had jurisdiction over CF Bermuda (or its directors and officers, if applicable), as determined by reference to Bermuda’s conflict of law rules. A judgment from a U.S. court, even one that is final and conclusive and for a debt or definite sum of money, will not be enforceable in Bermuda unless the judgment debtor was either present in the relevant U.S. jurisdiction when the U.S. proceedings were instituted or had submitted to the jurisdiction of the U.S. court, and the issue of presence, submission and jurisdiction is assessed as a matter of Bermuda’s (not the United States’) rules of private international law; (2) the judgment was obtained by fraud; (3) the enforcement of the judgment would be contrary to Bermuda public policy; or (4) the proceedings in which the judgment was obtained were contrary to natural justice.
In addition to and irrespective of jurisdictional issues, the Bermuda courts will not enforce a U.S. judgment that is based on a U.S. federal securities law that is either penal or contrary to the public policy of Bermuda. A foreign judgment based on a foreign public, revenue or penal law, the purpose of which is the enforcement of a sanction, power or right at the instance of the foreign state in its sovereign character or by virtue of sovereign authority, may not be recognized and enforced by a Bermuda court. Certain remedies available under the laws of U.S. jurisdictions, including awards of multiple damages and certain remedies under U.S. federal securities laws, are not available under Bermuda law or enforceable in a Bermuda court, if they are penal in nature or if enforcement would be contrary to Bermuda public policy. Further, it may not be possible to pursue direct claims in Bermuda against CF Bermuda or its directors and officers for alleged violations of U.S. federal securities laws because U.S. federal securities laws are unlikely to have extraterritorial effect and do not have the force of law in Bermuda. A Bermuda court may, however, impose civil liability on CF Bermuda or its directors and officers if the facts alleged and proved in the Bermuda proceedings constitute or give rise to a cause of action under the applicable governing law, not being a foreign public, penal or revenue law.
NO STAMP DUTY OR SIMILAR OR OTHER TAX OR DUTY IS PAYABLE IN BERMUDA ON THE ENFORCEMENT OF A FOREIGN JUDGMENT. COURT FEES WILL BE PAYABLE IN CONNECTION WITH PROCEEDINGS FOR ENFORCEMENT.
BOOK-ENTRY DELIVERY AND FORM
General
The exchange notes are represented by one or more global notes in registered form without interest coupons attached (collectively, the “Global Notes”). Global Notes have been deposited with the trustee as custodian for DTC in New York, New York, and registered in the name of DTC or its nominee, in each case for credit to an account of a direct or indirect participant in DTC as described below. Except as set forth below, Global Notes may be transferred only to another nominee of DTC or to a successor of DTC or its nominee, in whole and not in part. Except in the limited circumstances described below, beneficial interests in Global Notes may not be exchanged for notes in certificated form and owners of beneficial interests in Global Notes will not be entitled to receive physical delivery of notes in certificated form. See “Book-Entry Delivery and Form—Exchange of Global Notes for Certificated Notes.” Depository Procedures
The following description of the operations and procedures of DTC, Euroclear and Clearstream is provided solely as a matter of convenience. These operations and procedures are solely within the control of the respective settlement systems and are subject to changes by them. The Company takes no responsibility for these operations and procedures and urges investors to contact the system or their participants directly to discuss these matters.
DTC has advised the Company that DTC is a limited-purpose trust company organized under the laws of the State of New York, a “banking organization” within the meaning of the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform Commercial Code and a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act. DTC was created to hold securities for its participating organizations (collectively, the “Participants”) and to facilitate the clearance and settlement of transactions in those securities between Participants through electronic book-entry changes in accounts of its Participants. The Participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. Access to DTC’s system is also available to other entities such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a Participant, either directly or indirectly (collectively, the “Indirect Participants”). Persons who are not Participants may beneficially own securities held by or on behalf of DTC only through the Participants or the Indirect Participants. The ownership interests in, and transfers of ownership interests in, each security held by or on behalf of DTC are recorded on the records of the Participants and Indirect Participants.
DTC has also advised the Company that, pursuant to procedures established by it:
(1)upon deposit of the Global Notes for a series of notes, DTC will credit the accounts of Participants with portions of the principal amount of the Global Notes for such series; and
(2)ownership of these interests in Global Notes will be shown on, and the transfer of ownership of these interests will be effected only through, records maintained by DTC (with respect to the Participants) or by the Participants and the Indirect Participants (with respect to other owners of beneficial interests in Global Notes)
All interests in a Global Note may be subject to the procedures and requirements of DTC. Interests in a Global Note held through Euroclear or Clearstream may be subject to the procedures and requirements of those systems as well. The laws of some states require that certain persons take physical delivery in definitive form of securities that they own and the ability to transfer beneficial interests in a Global Note to Persons that are subject to those requirements will be limited to that extent. Because DTC can act only on behalf of Participants, which in turn act on behalf of Indirect Participants, the ability of a person having beneficial interests in a Global Note to pledge those interests to Persons that do not participate in the DTC system, or otherwise take actions in respect of those interests, may be affected by the lack of a physical certificate evidencing those interests.
Except as described below, owners of an interest in Global Notes will not have notes registered in their names, will not receive physical delivery of definitive notes in registered certificated form (“Certificated Notes”) and will
not be considered the registered owners or “Holders” thereof under the indenture governing the notes for any purpose.
Payments in respect of the principal of and premium, interest and special interest, if any, on a Global Note registered in the name of DTC or its nominee will be payable to DTC in its capacity as the registered Holder under the indenture. Under the terms of the indenture, the Company and the trustee will treat the Persons in whose names notes, including Global Notes, are registered as the owners of such notes for the purpose of receiving payments and for all other purposes. Consequently, none of the Company, the trustee or any agent of the Company or the trustee has or will have any responsibility or liability for:
(1)any aspect of DTC’s records or any Participant’s or Indirect Participant’s records relating to or payments made on account of beneficial ownership interests in Global Notes or for maintaining, supervising or reviewing any of DTC’s records or any Participant’s or Indirect Participant’s records relating to the beneficial ownership interests in Global Notes; or
(2)any other matter relating to the actions and practices of DTC or any of its Participants or Indirect Participants.
DTC has advised the Company that its current practice, upon receipt of any payment in respect of securities such as the notes (including principal and interest), is to credit the accounts of the relevant Participants with the payment on the payment date unless DTC has reason to believe it will not receive payment on that payment date. Each relevant Participant is credited with an amount proportionate to its beneficial ownership of an interest in the principal amount of the relevant security as shown on the records of DTC. Payments by the Participants and the Indirect Participants to the beneficial owners of notes will be governed by standing instructions and customary practices and will be the responsibility of the Participants or the Indirect Participants and will not be the responsibility of DTC, the trustee or the Company. None of the Company, the exchange agent or the trustee will be liable for any delay by DTC or any of its Participants in identifying the beneficial owners of any notes, and the Company, the exchange agent and the trustee may conclusively rely on and will be protected in relying on instructions from DTC or its nominee for all purposes.
Transfers between Participants in DTC will be effected in accordance with DTC’s procedures, and will be settled in same-day funds and transfers between participants in Euroclear and Clearstream will be effected in accordance with their respective rules and operating procedures.
Cross-market transfers between the Participants, on the one hand, and Euroclear or Clearstream participants, on the other hand, will be effected through DTC in accordance with DTC’s rules on behalf of Euroclear or Clearstream, as the case may be, by its respective depositary; however, such cross-market transactions will require delivery of instructions to Euroclear or Clearstream, as the case may be, by the counterparty in such system in accordance with the rules and procedures and within the established deadlines (Brussels time) of such system. Euroclear or Clearstream, as the case may be, will, if the transaction meets its settlement requirements, deliver instructions to its respective depositary to take action to effect final settlement on its behalf by delivering or receiving interests in the relevant Global Note from DTC, and making or receiving payment in accordance with normal procedures for same-day funds settlement applicable to DTC. Euroclear participants and Clearstream participants may not deliver instructions directly to the depositories for Euroclear or Clearstream.
DTC has advised the Company that it will take any action permitted to be taken by a Holder of a given series of notes only at the direction of one or more Participants to whose account DTC has credited the interests in the applicable series of Global Notes and only in respect of the portion of the aggregate principal amount of the applicable series of notes as to which that Participant or those Participants has or have given the relevant direction. However, if there is an Event of Default under such series of notes, DTC reserves the right to exchange the applicable Global Notes for legended notes in certificated form, and to distribute those notes to its Participants.
Although DTC, Euroclear and Clearstream have agreed to the foregoing procedures in order to facilitate transfers of interests in Global Notes among Participants, they are under no obligation to perform those procedures, and may discontinue or change those procedures at any time. None of the Company, the exchange agent, the trustee or any of their respective agents will have any responsibility for the performance by DTC, Euroclear, Clearstream or
their respective Participants or Indirect Participants of their respective obligations under the rules and procedures governing their operations.
Exchange of Global Notes for Certificated Notes
A Global Note is exchangeable for a Certificated Note of the same series if:
•DTC (a) notifies the Company that it is unwilling or unable to continue as depositary for the applicable Global Notes or (b) has ceased to be a clearing agency registered under the Exchange Act and, in each case, a successor depositary is not appointed within 90 days of such notice or cessation; or
•the Company, at its option, notifies the trustee in writing that it elects to cause the issuance of Certificated Notes; or
•there has occurred and is continuing an Event of Default with respect to the notes.
In addition, beneficial interests in a Global Note may be exchanged for Certificated Notes of the same series upon prior written notice given to the trustee by or on behalf of DTC in accordance with the indenture. In all cases, Certificated Notes delivered in exchange for any Global Note or beneficial interests in a Global Note will be registered in the names, and issued in any approved denominations, requested by or on behalf of the depositary (in accordance with its customary procedures).
Same Day Settlement and Payment
The Company will make payments in respect of the notes represented by the Global Notes (including principal, premium, if any, interest and special interest, if any) by wire transfer of immediately available funds to the accounts specified by DTC or its nominee. The Company will make all payments of principal, interest and premium, if any, and special interest, if any, with respect to Certificated Notes by wire transfer of immediately available funds to the accounts specified by the holders of the Certificated Notes or, if no such account is specified, by mailing a check to each such holder’s registered address. The notes represented by the Global Notes are expected to be eligible to trade in DTC’s Same-Day Funds Settlement System, and any permitted secondary market trading activity in such notes will, therefore, be required by DTC to be settled in immediately available funds. The Company expects that secondary trading in any Certificated Notes will also be settled in immediately available funds.
Because of time zone differences, the securities account of a Euroclear or Clearstream participant purchasing an interest in a Global Note from a Participant will be credited, and any such crediting will be reported to the relevant Euroclear or Clearstream participant, during the securities settlement processing day (which must be a business day for Euroclear and Clearstream) immediately following the settlement date of DTC. DTC has advised the Company that cash received in Euroclear or Clearstream as a result of sales of interests in a Global Note by or through a Euroclear or Clearstream participant to a Participant will be received with value on the settlement date of DTC but will be available in the relevant Euroclear or Clearstream cash account only as of the business day for Euroclear or Clearstream following DTC’s settlement date.
U.S. FEDERAL INCOME TAX CONSIDERATIONS
The exchange of original notes for exchange notes in the exchange offer will generally not constitute a taxable exchange for holders because exchange notes will generally not be considered to differ materially in kind or extent from original notes. As a result, for U.S. federal income tax purposes, (i) a holder will generally not recognize any income, gain or loss as a result of exchanging original notes for exchange notes; (ii) the holding period of exchange notes will generally include the holding period of such original notes exchanged therefor; and (iii) the adjusted tax basis of exchange notes will generally be the same as the adjusted tax basis of such original notes exchanged therefor immediately before such exchange.
PLAN OF DISTRIBUTION
Based on existing interpretations of the Securities Act by the SEC staff set forth in several no-action letters to third parties, and subject to the immediately following sentence, we believe exchange notes issued under the exchange offer in exchange for original notes may be offered for resale, resold and otherwise transferred by the holders thereof (other than holders that are broker-dealers) without further compliance with the registration and prospectus delivery provisions of the Securities Act. However, any holder of original notes that is an affiliate of ours or that intends to participate in the exchange offer for the purpose of distributing the exchange notes, or any broker-dealer that purchased any of the original notes from us for resale pursuant to Rule 144A or any other available exemption under the Securities Act, (i) will not be able to rely on the interpretations of the SEC staff set forth in the above-mentioned no-action letters, (ii) will not be entitled to tender its original notes in the exchange offer, and (iii) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any sale or transfer of the original notes unless such sale or transfer is made pursuant to an exemption from such requirements.
Each broker-dealer that receives exchange notes for its own account pursuant to the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of such exchange notes. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of exchange notes received in exchange for original notes where such original notes were acquired as a result of market-making activities or other trading activities. We have agreed that, for a period of 180 days after the expiration date, we will make this prospectus, as amended or supplemented, available to any broker-dealer for use in connection with any such resale. In addition, all dealers effecting transactions in the exchange notes may be required to deliver a prospectus.
We will not receive any proceeds from any sale of exchange notes by broker-dealers. Exchange notes received by broker-dealers for their own account pursuant to the exchange offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the exchange notes or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or negotiated prices. Any such resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such broker-dealer or the purchasers of any such exchange notes. Any broker-dealer that resells exchange notes that were received by it for its own account pursuant to the exchange offer and any broker or dealer that participates in a distribution of such exchange notes may be deemed to be an “underwriter” within the meaning of the Securities Act and any profit on any such resale of exchange notes and any commission or concessions received by any such persons may be deemed to be underwriting compensation under the Securities Act. The letter of transmittal states that, by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.
For a period of 180 days after the expiration date we will promptly send additional copies of this prospectus and any amendment or supplement to this prospectus to any broker-dealer that requests such documents in the letter of transmittal. We have agreed to pay all fees and expenses incident to the exchange offer (including the expenses of one counsel for the holders of the original notes and the exchange notes) other than commissions or concessions of any brokers or dealers and will indemnify the holders of the original notes and the exchange notes (including any broker-dealers) against certain liabilities, including liabilities under the Securities Act.
Notwithstanding the foregoing, we may suspend the use of this prospectus by broker-dealers under specified circumstances as provided in the Registration Rights Agreement or otherwise as required by applicable law.
We will not receive any proceeds from the issuance of exchange notes in the exchange offer.
VALIDITY OF THE EXCHANGE NOTES
The validity of the exchange notes and the guarantees will be passed upon by Skadden, Arps, Slate, Meagher & Flom LLP and ASW Law Limited.
EXPERTS
The consolidated financial statements of F&G Annuities & Life, Inc. and subsidiaries appearing in F&G Annuities & Life, Inc.’s Annual Report (Form 10-K) and Current Report on Form 8-K for the year ended December 31, 2022, have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their reports thereon, included therein and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such reports given on the authority of such firm as experts in accounting and auditing.
Offer to Exchange
$500,000,000 aggregate principal amount of 7.400% Senior Notes due 2028
(CUSIP Nos. 30190A AA2 and U3152B AA0)
for
$500,000,000 aggregate principal amount of 7.400% Senior Notes due 2028
(CUSIP No. 30190A AC8)
that have been registered under the Securities Act
PROSPECTUS
, 2023
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
Article VIII of the Bylaws of F&G Annuities & Life, Inc., as amended, provides as follows:
Section 8.1 Power to Indemnify in Actions, Suits or Proceedings Other Than Those by or in the Right of the Corporation. Subject to Section 8.3 hereof, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he 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, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 8.2 Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation. Subject to Section 8.3 hereof, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery of the State of Delaware or such other court shall deem proper.
Section 8.3 Authorization of Indemnification. Any indemnification under this Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 8.1 or Section 8.2 hereof, as the case may be. Such determination shall be made (a) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (b) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (c) by the stockholders. To the extent, however, that a director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described above or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith, without the necessity of authorization in the specific case.
Section 8.4 Good Faith Defined. For purposes of any determination under Section 8.1 or 8.2 hereof, a person shall be deemed to have acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe their conduct was unlawful, if their action is based on the records or books of account of the Corporation or another enterprise, or on information supplied to them by the officers of the Corporation or another
enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on information or records given or reports made to the Corporation or another enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise. The term “another enterprise” as used in this Section 8.4 shall mean any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of which such person is or was serving at the request of the Corporation as a director, officer, employee or agent. The provisions of this Section 8.4 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Section 8.1 or 8.2 hereof, as the case may be.
Section 8.5 Indemnification by a Court. Notwithstanding any contrary determination made in any specific case under Section 8.3 hereof, and notwithstanding the absence of any determination made thereunder, any director or officer may apply to any court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under Sections 8.l and 8.2 hereof. The basis of such indemnification by a court shall be a determination by such court that indemnification of the director or officer is proper in the circumstances because they have met the applicable standards of conduct set forth in Section 8.1 or 8.2 hereof. Neither a contrary determination in the specific case under Section 8.3 hereof nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this Section 8.5 shall be given to the Corporation promptly upon the filing of such application. If successful, in whole or in part, the director or officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such application.
Section 8.6 Expenses Payable in Advance. Expenses incurred by a director or officer in defending or investigating a threatened or pending action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized in this Article VIII.
Section 8.7 Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by or granted pursuant to this Article VIII shall not be deemed exclusive of any other rights to which any person seeking indemnification or advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders or disinterested directors or pursuant to the direction (howsoever embodied) of any court of competent jurisdiction or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, it being the policy of the Corporation that indemnification of the persons specified in Sections 8.1 and 8.2 hereof shall be made to the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to preclude the indemnification of any person who is not specified in Section 8.1 or 8.2 but whom the Corporation has the power or obligation to indemnify under the provisions of the DGCL or otherwise.
Section 8.8 Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against any liability asserted against them and incurred by them in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power or the obligation to indemnify them against such liability under the provisions of this Article VIII.
Section 8.9 Certain Definitions. For purposes of this Article VIII, references to “the Corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors or officers, so that any person who is or was a director or officer of such constituent corporation, or is or was a director or officer of such constituent corporation serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the same position under the provisions of this Article VIII with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued. For purposes of this Article VIII, references to “fines” shall
include any excise taxes assessed on a person with respect to an employee benefit plan; and references to “serving at the request of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director or officer with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as referred to in this Article VIII.
Section 8.10 Survival of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such a person.
Section 8.11 Limitation on Indemnification. Notwithstanding anything contained in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which shall be governed by Section 8.5 hereof), the Corporation shall not be obligated to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors of the Corporation.
Section 8.12 Indemnification of Employees and Agents. The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation similar to those conferred in this Article VIII to directors and officers of the Corporation.
Section 8.13 Secondary Indemnifications. The indemnification and advancement of expenses provided by, or granted pursuant to, the other provisions of this Article VIII shall not be deemed exclusive of any other rights to which those persons provided indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office. Notwithstanding the foregoing, it is acknowledged that certain persons may have certain rights to indemnification, advancement of expenses and/or insurance provided by the stockholders of the Corporation or one or more of the affiliates of such stockholders of the Corporation other than the Corporation and its subsidiaries (any of such entities, together with their affiliates (other than the Corporation and its subsidiaries), the “Stockholder Sponsors”) as an employee of any of such entities (or their respective payroll companies) or pursuant to separate written agreements, which the Company and the Stockholder Sponsors intend to be secondary to the primary obligation of the Corporation to provide indemnification as provided herein. If any Stockholder Sponsor pays or causes to be paid, for any reason, any amounts otherwise indemnifiable hereunder or under any other indemnification agreement or arrangement (whether pursuant to contract, by-laws or charter) to a person indemnifiable hereunder, then (a) the applicable Stockholder Sponsor entity shall be fully subrogated to all of such person’s rights with respect to such payment and (b) the Company shall indemnify, reimburse and hold harmless the applicable Stockholder Sponsor entity for the payments actually made. The Stockholder Sponsors shall be third-party beneficiaries of this Article VIII, having the rights to enforce this Article VIII.
Item 21. Exhibits and Financial Statement Schedules.
(a)Exhibits
| | | | | | | | |
| Exhibit Number | | Description |
| | |
| 3.1 | | |
| | |
| 3.2 | | |
| | |
| 3.3* | | |
| | |
| 3.4* | | |
| | |
| 3.5* | | |
| | |
| 3.6* | | |
| | |
| 3.7* | | |
| | |
| 3.8* | | |
| | |
| 3.9* | | |
| | |
| 3.10* | | |
| | |
| 4.1 | | |
| | |
| 4.2 | | |
| | |
| 4.3* | | |
| | |
| 4.4 | | |
| | |
| 4.5 | | |
| | |
| 4.6 | | Registration Rights Agreement for the Senior Notes due 2028, dated as of January 13, 2023, among F&G Annuities & Life, Inc., BofA Securities, Inc., J.P. Morgan Securities LLC and RBC Capital Markets, LLC (incorporated by reference to Exhibit 10.1 of Current Report on Form 8-K (File No. 001-41490), filed on January 13, 2023) |
| | |
| 4.7* | | |
| | |
| 5.1* | | |
| | |
| 5.2* | | |
| | |
| 23.1* | | |
| | |
| 23.2* | | |
| | |
| 23.3* | | |
| | |
| 24.1* | | |
| | |
| 25.1* | | |
| | |
| 99.1* | | |
| 107* | | |
__________________
* Filed herewith
Item 22. Undertakings.
(a)The undersigned registrants hereby undertake:
(1)To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii)To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii)To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
(2)That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3)To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4)That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness; 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 first use, 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 date of first use.
(5)That, for the purpose of determining liability of the registrants under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrants undertake that in a primary offering of securities of the undersigned registrants 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 registrants will be sellers 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 registrants 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 registrants 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 registrants or its securities provided by or on behalf of the undersigned registrants; and
(iv)Any other communication that is an offer in the offering made by the undersigned registrants to the purchaser.
(b)Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrants pursuant to the foregoing provisions, or otherwise, the registrants have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrants of expenses incurred or paid by a director, officer or controlling person of the registrants 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 registrants will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
(c)The undersigned registrants hereby undertake to respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.
(d)The undersigned registrants hereby undertake to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Des Moines, Iowa on August 10, 2023.
| | | | | | | | | | | |
| F&G ANNUITIES & LIFE, INC. |
| | | |
| By: | /s/ Jodi Ahlman | |
| | Jodi Ahlman | |
| | General Counsel & Secretary | |
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints each of Jodi Ahlman and Wendy J.B. Young as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including pre-effective and post-effective amendments and registration statements filed pursuant to Rule 462 under the Securities Act of 1933) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto the said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that the said attorneys-in-fact and agents or any of them, or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| | | | | | | | | | | | | | |
| Signature | | Title | | Date |
| | | | |
/s/ Christopher O. Blunt | | President & Chief Executive Officer (Principal Executive Officer); Director | | August 10, 2023 |
| Christopher O. Blunt | | |
| | | | |
| /s/ Wendy J.B. Young | | Chief Financial Officer (Principal Financial and Accounting Officer) | | August 10, 2023 |
| Wendy J.B. Young | | |
| | | | |
| /s/ William P. Foley, II | | Chairman of the Board | | August 10, 2023 |
| William P. Foley, II | | |
| | | | |
| /s/ Douglas K. Ammerman | | Director | | August 10, 2023 |
| Douglas K. Ammerman | | |
| | | | |
| /s/ Celina J. Wang Doka | | Director | | August 10, 2023 |
| Celina J. Wang Doka | | |
| | | | |
| /s/ Douglas Martinez | | Director | | August 10, 2023 |
| Douglas Martinez | | |
| | | | |
| /s/ Michael Nolan | | Director | | August 10, 2023 |
| Michael Nolan | | |
| | | | |
| /s/ Raymond Quirk | | Director | | August 10, 2023 |
| Raymond Quirk | | |
| | | | |
| /s/ John D. Rood | | Director | | August 10, 2023 |
| John D. Rood | | |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Des Moines, Iowa on August 10, 2023.
| | | | | | | | | | | | | | |
| CF BERMUDA HOLDINGS LIMITED | |
| | | | |
| By: | | /s/ Jodi Ahlman | |
| | | Jodi Ahlman | |
| | | Senior Vice President,
General Counsel & Secretary | |
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints each of Jodi Ahlman and Wendy J.B. Young as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including pre-effective and post-effective amendments and registration statements filed pursuant to Rule 462 under the Securities Act of 1933) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto the said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that the said attorneys-in-fact and agents or any of them, or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| | | | | | | | | | | | | | |
| Signature | | Title | | Date |
| | | | |
/s/ Christopher O. Blunt | | President & Chief Executive Officer (Principal Executive Officer); Director | | August 10, 2023 |
| Christopher O. Blunt | | |
| | | | |
| /s/ Wendy J.B. Young | | Executive Vice President, Chief Financial Officer (Principal Financial and Accounting Officer); Director | | August 10, 2023 |
| Wendy J.B. Young | | |
| | | | |
| /s/ John D. Currier | | Director | | August 10, 2023 |
| John D. Currier | | |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Des Moines, Iowa on August 10, 2023.
| | | | | | | | | | | | | | |
| FGL US HOLDINGS INC. | |
| | | | |
| By: | | /s/ Jodi Ahlman | |
| | | Jodi Ahlman | |
| | | Senior Vice President,
General Counsel & Secretary | |
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints each of Jodi Ahlman and Wendy J.B. Young as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including pre-effective and post-effective amendments and registration statements filed pursuant to Rule 462 under the Securities Act of 1933) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto the said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that the said attorneys-in-fact and agents or any of them, or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| | | | | | | | | | | | | | |
| Signature | | Title | | Date |
| | | | |
/s/ Christopher O. Blunt | | President & Chief Executive Officer (Principal Executive Officer); Director | | August 10, 2023 |
| Christopher O. Blunt | | |
| | | | |
| /s/ Wendy J.B. Young | | Executive Vice President, Chief Financial Officer (Principal Financial and Accounting Officer); Director | | August 10, 2023 |
| Wendy J.B. Young | | |
| | | | |
| /s/ John D. Currier | | Director | | August 10, 2023 |
| John D. Currier | | |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Des Moines, Iowa on August 10, 2023.
| | | | | | | | | | | | | | |
| FIDELITY & GUARANTY LIFE BUSINESS SERVICES, INC. | |
| | | | |
| By: | | /s/ Jodi Ahlman | |
| | | Jodi Ahlman | |
| | | Senior Vice President,
General Counsel & Secretary | |
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints each of Jodi Ahlman and Wendy J.B. Young as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including pre-effective and post-effective amendments and registration statements filed pursuant to Rule 462 under the Securities Act of 1933) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto the said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that the said attorneys-in-fact and agents or any of them, or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| | | | | | | | | | | | | | |
| Signature | | Title | | Date |
| | | | |
/s/ Christopher O. Blunt | | President & Chief Executive Officer (Principal Executive Officer); Director | | August 10, 2023 |
| Christopher O. Blunt | | |
| | | | |
| /s/ Wendy J.B. Young | | Executive Vice President, Chief Financial Officer (Principal Financial and Accounting Officer) | | August 10, 2023 |
| Wendy J.B. Young | | |
| | | | |
| /s/ John D. Currier | | Director | | August 10, 2023 |
| John D. Currier | | |
| | | | |
| /s/ Marie Norcia | | Director | | August 10, 2023 |
| Marie Norcia | | |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Des Moines, Iowa on August 10, 2023.
| | | | | | | | | | | | | | |
| FIDELITY & GUARANTY LIFE HOLDINGS, INC. | |
| | | | |
| By: | | /s/ Jodi Ahlman | |
| | | Jodi Ahlman | |
| | | Senior Vice President,
General Counsel & Secretary | |
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints each of Jodi Ahlman and Wendy J.B. Young as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including pre-effective and post-effective amendments and registration statements filed pursuant to Rule 462 under the Securities Act of 1933) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto the said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that the said attorneys-in-fact and agents or any of them, or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| | | | | | | | | | | | | | |
| Signature | | Title | | Date |
| | | | |
/s/ Christopher O. Blunt | | President & Chief Executive Officer (Principal Executive Officer); Director | | August 10, 2023 |
| Christopher O. Blunt | | |
| | | | |
| /s/ Wendy J.B. Young | | Executive Vice President, Chief Financial Officer (Principal Financial and Accounting Officer); Director | | August 10, 2023 |
| Wendy J.B. Young | | |
| | | | |
| /s/ John D. Currier | | Director | | August 10, 2023 |
| John D. Currier | | |
Calculation of Filing Fee Table
Form S-4
(Form Type)
Issuer:
F&G Annuities & Life, Inc.
Guarantors:
CF Bermuda Holdings Limited
FGL US Holdings Inc.
Fidelity & Guaranty Life Business Services, Inc.
Fidelity & Guaranty Life Holdings, Inc.
(Exact Name of Registrants as Specified in their Charters)
Table 1: Newly Registered and Carry Forward Securities
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| Security Type | Security Class Title | Fee Calculation or Carry Forward Rule | Amount Registered | Proposed Maximum Offering Price Per Unit | Maximum Aggregate Offering Price | Fee Rate | Amount of Registration Fee |
| Newly Registered Securities |
| Fees to be Paid | Debt | 7.400% Senior Notes due 2028 | Rule 457(a) | $500,000,000 | 100% | $500,000,000(1) | 0.0001102 | $55,100(2) |
| Debt | Guarantees of 7.400% Senior Notes due 2028(3) | Other | __ | __ | __ | __ | __(4) |
| Fees Previously Paid | __ | __ | __ | __ | | __ | | __ |
| Carry Forward Securities |
| Carry Forward Securities | __ | __ | __ | __ | | __ | | __ |
| Total Offering Amounts | | $500,000,000(1) | | $55,100 |
| Total Fees Previously Paid | | | | $0.00 |
| Total Fee Offsets | | | | $0.00 |
| Net Fee Due | | | | $55,100 |
(1)Represents the maximum aggregate principal amount of the notes to be offered in the exchange offer to which the registration statement relates.
(2)Calculated in accordance with Rule 457(f) under the Securities Act of 1933.
(3)No separate consideration will be received for the guarantees.
(4)Pursuant to Rule 457(n) under the Securities Act of 1933, no additional registration fee is due for the guarantees.
BERMUDA
THE COMPANIES ACT 1981
MEMORANDUM OF ASSOCIATION OF COMPANY LIMITED BY SHARES
Section 7(1) and (2)
MEMORANDUM OF ASSOCIATION
OF
CF Bermuda Holdings Limited
(hereinafter referred to as "the Company")
1.The liability of the members of the Company is limited to the amount (if any) for the time being unpaid on the shares respectively held by them.
2.The undersigned, namely,
| | | | | | | | | | | | | | | | | | | | | | | |
| Name and Address | Bermudian Status | | Nationality | | Number of Shares |
| | | (Yes or No) | | | | Subscribed |
| | | | | | | |
| Compass Administration Services Ltd. | Yes | | Bermuda | | 1 |
| Crawford House | | | | | |
| 50 Cedar Avenue | | | | | |
| Hamilton HM 11 | | | | | |
do hereby agree to take such number of shares of the Company as may be allotted to us by the provisional director(s) of the Company, not exceeding the number of shares for which we have subscribed, and to satisfy such calls as may be made by the directors, provisional director(s) or promoters of the Company in respect of the shares allotted to us respectively.
3.The Company is to be an exempted Company as defined by the Companies Act 1981.
4.The Company, with the consent of the Minister of Finance, has power to hold land situate in Bermuda not exceeding _____in all, including the following parcels:- N/A
5.The authorised share capital of the Company is US$12,000.00 divided into 12,000 shares of par value US$1.00 each.
6.The objects for which the Company is formed and incorporated are unrestricted.
7.The following are provision regarding the powers of a Company:
i)Has the powers of a natural person;
ii)Subject to the provisions of Section 42 of the Companies Act 1981, has the power to issue preference shares which at the option of the holders thereof are to be liable to be redeemed;
iii)Has the power to purchase its own shares in accordance with the provisions of Section 42A of the Companies Act 1981; and
iv)Has the power to acquire its own shares to be held as treasury shares in accordance with the provisions of Section 42B of the Companies Act 1981.
Signed by the subscriber in the presence of a witness attesting the signature thereof: -
| | | | | | | | |
| /s/ Lisa O'Sullivan | | /s/ Kim McCullough |
| Lisa O'Sullivan | | (Witness) |
| Duly authorised, for and on behalf of | | |
| Compass Administration Services Ltd. | | |
| | |
| (Subscriber) | | |
| | |
| | |
| Subscribed this 22 day of May 2017 |
BYE-LAWS
OF
CF BERMUDA HOLDINGS LIMITED
CERTIFIED that the within-written bye-laws are a true copy of the bye-laws of CF Bermuda Holdings Limited (the "Company") as approved and adopted as the bye-laws of the Company (the "Bye-Laws") by written resolution constituting the statutory general meeting of the sole member of the Company dated and effective on 23 May 2017.
| | | | | |
| /s/ Lisa O’Sullivan |
| Duly Authorised |
| For and on behalf of |
| Compass Administration Services Ltd. |
| Secretary |
Prepared by
ASW Law Limited
Barristers & Attorneys
Crawford House
50 Cedar Avenue
Hamilton, HM 11
Bermuda
PAGE INTENTIONALLY LEFT BLANK
TABLE OF CONTENTS
| | | | | | | | | | | | | | |
DEFINITIONS AND INTERPRETATION |
| | | | |
| 1. | | Definitions and Interpretation |
| | | | |
SHARES |
| | | | |
| 2. | | Power to Issue Shares |
| 3. | | Power of the Company to Purchase its Shares |
| 4. | | Rights Attaching to Shares |
| 5. | | Calls on Shares |
| 6. | | Forfeiture of Shares |
| 7. | | Share Certificates |
| 8. | | Fractional Shares |
| | | | |
REGISTRATION OF SHARES |
| | | | |
| 9. | | Register of Members |
| 10. | | Registered Holder Absolute Owner |
| 11. | | Transfer of Registered Shares |
| 12. | | Transmission of Registered Shares |
| | | | |
ALTERATION OF SHARE CAPITAL |
| | | | |
| 13. | | Power to Alter Capital |
| 14. | | Variation of Rights Attaching to Shares |
| | | | |
| MEETINGS OF MEMBERS |
| | | | |
| 15. | | Annual General Meetings |
| 16. | | Special General Meetings |
| 17. | | Requisitioned General Meetings |
| 18. | | Notice |
| 19. | | Giving Notice and Access |
| 20. | | Postponement of General Meeting |
| 21. | | Telephonic or Electronic Participation in Meetings |
| 22. | | Quorum at General Meetings |
| 23. | | Chairman to Preside at General Meetings |
| 24. | | Voting on Resolutions |
| 25. | | Power to Demand a Vote on a Poll |
| | | | | | | | | | | | | | |
| 26. | | Voting by Joint Holders of Shares |
| 27. | | Instrument of Proxy |
| 28. | | Representation of Corporate Member |
| 29. | | Adjournment of General Meeting |
| 30. | | Written Resolutions |
| 31. | | Directors Attendance at General Meetings |
| | | | |
DIVIDENDS AND CAPITALISATION |
| | | | |
| 32. | | Dividends |
| 33. | | Power to Set Aside Profits |
| 34. | | Method of Payment |
| 35. | | Capitalisation |
| | | | |
| DIRECTORS AND OFFICERS |
| | | | |
| 36. | | Election of Directors |
| 37. | | Number of Directors |
| 38. | | Term of Office of Directors |
| 39. | | Alternate Directors |
| 40. | | Removal of Directors |
| 41. | | Vacancy in the Office of Director |
| 42. | | Remuneration of Directors |
| 43. | | Defect in Appointment |
| 44. | | Directors to Manage Business |
| 45. | | Powers of the Board of Directors |
| 46. | | Register of Directors and Officers |
| 47. | | Appointment of Officers |
| 48. | | Appointment of Secretary |
| 49. | | Duties of Officers |
| 50. | | Remuneration of Officers |
| 51. | | Conflicts of Interest |
| 52. | | Indemnification and Exculpation of Directors and Officers |
| | | | |
MEETINGS OF THE BOARD OF DIRECTORS |
| | | | |
| 53. | | Board Meetings |
| 54. | | Notice of Board Meetings |
| 55. | | Telephonic or Electronic Participation in Meetings |
| 56. | | Quorum at Board Meetings |
| 57. | | Board to Continue in the Event of Vacancy |
| | | | | | | | | | | | | | |
| 58. | | Chairman to Preside |
| 59. | | Written Resolutions |
| 60. | | Validity of Prior Acts of the Board |
| | | | |
| ACCOUNTS |
| | | | |
| 61. | | Books of Account |
| 62. | | Financial Year End |
| | | | |
AUDITS |
| | | | |
| 63. | | Annual Audit |
| 64. | | Appointment of Auditor |
| 65. | | Remuneration of Auditor |
| 66. | | Duties of Auditor |
| 67. | | Access to Records |
| 68. | | Financial Statements |
| 69. | | Distribution of Auditor's Report |
| 70. | | Vacancy in the Officer of Auditor |
| | | | |
| CORPORATE RECORDS |
| | | | |
| 71. | | Minutes |
| 72. | | Place Where Corporate Records Kept |
| 73. | | Form and Use of Seal |
| | | | |
| CHANGES TO CONSTITUTION |
| | | | |
| 74. | | Alteration or amendment of Bye-laws |
| 75. | | Alteration or amendment of Memorandum of Association |
| 76. | | Discontinuance |
| | | | |
| MISCELLANEOUS |
| | | | |
| 77. | | Registered Office |
| 78. | | Amalgamation and Merger |
| 79. | | Conversion |
| | | | |
VOLUNTARY WINDING-UP AND DISSOLUTION |
| | | | |
| 80. | | Winding-Up |
| | | | | | | | | | | | | | |
| | | | |
FORMS |
| | | | |
| Schedule "A" | | (Bye-law 6) |
| Schedule "B" | | (Bye-law 11) |
| Schedule "C" | | (Bye-law 12.2) |
| Schedule "D" | | (Bye-law 27.1) |
INTERPRETATION
1. Definitions and Interpretation
1.1 In these Bye-laws, the following words and expressions shall, where not inconsistent with the context, have the following respective meanings:
| | | | | | | | |
| "Alternate Director" | an alternate director appointed in accordance with these Bye-laws; |
| | |
| "Auditor" | includes any individual auditor or partnership of auditors; |
| | |
| "Board" | the board of directors of the Company appointed or elected pursuant to these Bye-laws and acting by resolution in accordance with the Companies Act and these Bye-laws or the directors present at a meeting of directors at which there is a quorum; |
| | |
| "Bye-laws" | means these Bye-laws in their present form or as from time to time amended; |
| | |
| "Companies Act" | the Companies Act 1981, as amended from time to time; |
| | |
| "Company" | the company incorporated in Bermuda under the name of CF Bermuda Holdings Limited on 22 May 2017; |
| | |
| "Director" | any person duly elected or appointed as a director of the Company and shall include an Alternate Director or any person occupying the position of director by whatever name called; |
| | |
| "Member" | the person registered in the Register of Members as the holder of shares in the Company and, when two or more persons are so registered as joint holders of shares, means the person whose name stands first in the Register of Members as one of such joint holders or all of such persons, as the context so requires; |
| | |
| "Memorandum" | means the Memorandum of Association of the Company, as from time to time amended; |
| | |
| "notice" | written notice as further provided in these Bye-laws unless otherwise specifically stated; |
| | |
| "Officer" | any person appointed by the Board to hold an office in the Company; |
| | | | | | | | |
| | |
| "Register of Directors Officers" | the register of directors and officers referred to in and these Bye-laws; |
| | |
| "Register of Members" | the register of members referred to in these Bye-laws; |
| | |
| "Registered Office" | the registered office for the time being of the Company; |
| | |
| "Resident Representative" | any person appointed to act as resident representative of the Company and includes any deputy or assistant resident representative; |
| | |
| "Secretary" | the person appointed to perform any or all of the duties of secretary of the Company and includes any deputy or assistant secretary and any person appointed by the Board to perform any of the duties of the Secretary; |
| | |
| "share" | means a share in the capital of the Company and includes a fraction of a share; and |
| | |
| "Treasury Share" | a share of the Company that was or is treated as having been acquired and held by the Company and has been held continuously by the Company since it was so acquired and has not been cancelled. |
In these Bye-laws, where not inconsistent with the context:
(a) words denoting the plural number include the singular number and vice versa;
(b) words denoting the masculine gender include the feminine and neuter genders;
(c) words importing persons include companies, associations or bodies of persons whether corporate or not;
(d) the words:
(i) "may" shall be construed as permissive; and
(ii) "shall" shall be construed as imperative; and
(e) unless otherwise provided in these Bye-laws, words or expressions defined in the Companies Act shall bear the same meaning in these Bye-laws.
1.3 In these Bye-laws expressions referring to writing or its cognates shall, unless the contrary intention appears, include facsimile, printing, lithography, photography, electronic mail and other modes of representing words in visible form.
1.4 Headings used in these Bye-laws are for convenience only and are not to be used or relied upon in the construction hereof.
SHARES
2. Power to Issue Shares
2.1 Subject to these Bye-laws and to any resolution of the Members to the contrary, and without prejudice to any special rights previously conferred on the holders of any existing shares or class of shares, the Board shall have the power to issue any unissued shares on such terms and conditions as it may determine and any shares or class of shares may be issued with such preferred, deferred or other special rights or such restrictions, whether in regard to dividend, voting, return of capital, or otherwise as the Company may by resolution of the Members prescribe.
2.2 Subject to the Companies Act, any preference shares may be issued or converted into shares that (at a determinable date or at the option of the Company or the holder) are liable to be redeemed on such terms and in such manner as may be determined by the Board (before the issue or conversion).
3. Power of the Company to Purchase its Shares
3.1 The Company may purchase its own shares for cancellation or to acquire them as Treasury Shares in accordance with the Companies Act on such terms as the Board shall think fit. No such purchase shall be made if there are reasonable grounds for believing that the Company is, or after the purchase would be, unable to pay its liabilities as they become due.
3.2 The Board may exercise all the powers of the Company to purchase or acquire all or any part of its own shares in accordance with the Companies Act.
3.3 Shares so purchased by the Company under this Bye-law shall be treated as cancelled and the amount of the Company's issued capital shall be reduced by the nominal value of those shares accordingly but the purchase of shares under this Bye-law shall not be taken as reducing the amount of the Company's authorised share capital.
4. Rights Attaching to Shares
4.1 Subject to any resolution of the Members to the contrary (and without prejudice to any special rights conferred thereby on the holders of any other shares or class of shares), the share capital shall be divided into shares of a single class the holders of which shall, subject to these Bye-laws;
(a) be entitled to one vote per share;
(b) be entitled to such dividends as the Board may from time to time declare;
(c) in the event of a winding-up or dissolution of the Company, whether voluntary or involuntary or for the purpose of a reorganisation or otherwise or upon any distribution of capital, be entitled to the surplus assets of the Company; and
(d) generally be entitled to enjoy all of the rights attaching to shares.
4.2 All the rights attaching to a Treasury Share shall be suspended and shall not be exercised by the Company while it holds such Treasury Share and, except where required by the Companies Act, all Treasury Shares shall be excluded from the calculation of any percentage or fraction of the share capital, or shares, of the Company.
5. Calls on Shares
The Board may make such calls as it thinks fit upon the Members in respect of any moneys (whether in respect of nominal value or premium) unpaid on the shares allotted to or held by such Members and, if a call is not paid on or before the day appointed for payment thereof, the Member may at the discretion of the Board be liable to pay the Company interest on the amount of such call at such rate as the Board may determine, from the date when such call was payable up to the actual date of payment. The Board may differentiate between the holders as to the amount of calls to be paid and the times of payment of such calls.
The joint holders of a share shall be jointly and severally liable to pay all calls and any interest, costs and expenses in respect thereof.
The Company may accept from any Member the whole or a part of the amount remaining unpaid on any shares held by him, although no part of that amount has been called up.
6. Forfeiture of Shares
6.1 If any Member fails to pay, on the day appointed for payment thereof, any call in respect of any share allotted to or held by such Member, the Board may, at any time thereafter during such time as the call remains unpaid, direct the Secretary to forward such Member a notice in writing in the form set out at Schedule "A", or as near to such form as circumstances admit.
6.2 If the requirements of such notice are not complied with, any such share may at any time thereafter before the payment of such call and the interest due in respect thereof be forfeited by a resolution of the Board to that effect, and such share shall thereupon become the property of the Company and may be disposed of as the Board shall determine. Without limiting the generality of the foregoing, the disposal may take place by sale, repurchase, redemption or any other method of disposal permitted by and consistent with these Bye-laws and the Companies Act.
6.3 A Member whose share or shares have been so forfeited shall, notwithstanding such forfeiture, be liable to pay to the Company all calls owing on such share or shares at the time of the forfeiture, together with all interest due on such share or shares and any costs and expenses incurred by the Company in connection with such share or shares.
6.4 The Board may accept the surrender of any shares which it is in a position to forfeit on such terms and conditions as may be agreed. Subject to those terms and conditions, a surrendered share shall be treated as if it had been forfeited.
7. Share Certificates
7.1 Every Member shall be entitled to a certificate under the common seal of the Company or bearing the signature (or a facsimile thereof) of a Director or the Secretary or a person expressly authorised to sign specifying the number and, where appropriate, the class of shares held by such Member and whether the same are fully paid up and, if not, specifying the amount paid on such shares. The Board may by resolution determine, either generally or in a particular case, that any or all signatures on certificates may be printed thereon or affixed by mechanical means.
7.2 The Company shall be under no obligation to complete and deliver a share certificate unless specifically called upon to do so by the person to whom the shares have been allotted.
7.3 If any share certificate shall be proved to the satisfaction of the Board to have been worn out, lost, mislaid, or destroyed the Board may cause a new certificate to be issued and request indemnity for the lost certificate if it sees fit.
8. Fractional Shares
The Company may issue its shares in fractional denominations and deal with such fractions to the same extent as its whole shares and shares in fractional denominations shall have in proportion to the respective fractions represented thereby all of the rights of whole shares including (but without limiting the generality of the foregoing) the right to vote, to receive dividends and distributions and to participate in a winding-up.
REGISTRATION OF SHARES
9. Register of Members
9.1 The Board shall cause to be kept in one or more books a Register of Members and shall enter in such Register of Members the particulars required by the Companies Act.
9.2 The Register of Members shall be open to inspection without charge at the registered office of the Company on every business day, subject to such reasonable restrictions as the Board may impose, so that not less than two hours in each business day be allowed for inspection. The Register of Members may, after notice has been given in accordance with the Companies Act, be closed for any time or times not exceeding in the whole thirty days in each year.
10. Registered Holder Absolute Owner
The Company shall be entitled to treat the registered holder of any share as the absolute owner thereof and accordingly shall not be bound to recognise any equitable claim or other claim to, or interest in, such share on the part of any other person.
11. Transfer of Registered Shares
11.1 An instrument of transfer shall be in writing in the form set out at Schedule "B", or as near to such form as circumstances admit, or in such other form as the Board may accept.
11.2 Such instrument of transfer shall be signed by or on behalf of the transferor and transferee, provided that, in the case of a fully paid share, the Board may accept the instrument signed by or on behalf of the transferor alone. The transferor shall be deemed to remain the holder of such share until the same has been registered as having been transferred to the transferee in the Register of Members.
11.3 The Board may refuse to recognise any instrument of transfer unless it is accompanied by the certificate in respect of the shares to which it relates and by such other evidence as the Board may reasonably require to show the right of the transferor to make the transfer.
11.4 The joint holders of any share may transfer such share to one or more of such joint holders, and the surviving holder or holders of any share previously held by them jointly with a deceased Member may transfer any such share to the executors or administrators of such deceased Member.
11.5 The Board may in its absolute discretion and without assigning any reason therefor refuse to register the transfer of a share. The Board shall refuse to register a transfer unless all applicable consents, authorisations and permissions of any governmental body or agency in Bermuda have been obtained. If the Board refuses to register a transfer of any share the Secretary shall, within three months after the date on which the transfer was lodged with the Company, send to the transferor and transferee notice of the refusal.
12. Transmission of Registered Shares
12.1 In the case of the death of a Member, the survivor or survivors where the deceased Member was a joint holder, and the legal personal representatives of the deceased Member where the deceased Member was a sole holder, shall be the only persons recognised by the Company as having any title to the deceased Member's interest in the shares. Nothing herein contained shall release the estate of a deceased joint holder from any liability in respect of any share which had been jointly held by such deceased Member with other persons. Subject to the Companies Act, for the purpose of this Bye-law, legal personal representative means the executor or administrator of a deceased Member of such other person as the Board may, in its absolute discretion, decide as being properly authorised to deal with the shares of a deceased Member.
12.2 Any person becoming entitled to a share in consequence of the death or bankruptcy of any Member or otherwise by operation of law may be registered as a Member upon such evidence as the Board may deem sufficient or may elect to nominate some person to be registered as a transferee of such share, and in such case the person becoming entitled shall execute in favour of such nominee an instrument of transfer in writing in the form set out at Schedule "C" or as near to such form as circumstances admit.
12.3 On the presentation of the foregoing materials to the Board, accompanied by such evidence as the Board may require to prove the title of the transferor, the transferee shall be registered as a Member. Notwithstanding the foregoing, the Board shall, in any case, have the same right to decline or suspend registration as it would have had in the case if a transferor of the share by that Member before such Member's death or bankruptcy, as the case may be.
12.4 Where two or more persons are registered as joint holders of a share or shares, then in the event of the death of any joint holder or holders the remaining joint holder or holders shall be absolutely entitled to such share or shares and the Company shall recognise no claim in respect of the estate of any joint holder except in the case of the last survivor of such joint holders.
ALTERATION OF SHARE CAPITAL
13. Power to Alter Capital
13.1 The Company may if authorised by resolution of the Members increase, divide, consolidate, subdivide, change the currency denomination of, diminish or otherwise alter or reduce its share capital in any manner permitted by the Companies Act.
13.2 Where, on any alteration or reduction of share capital, fractions of shares or some other difficulty would arise, the Board may deal with or resolve the same in such manner as it thinks fit.
14. Variation of Rights Attaching to Shares
If, at any time, the share capital is divided into different classes of shares, the rights attached to any class (unless otherwise provided by the terms of issue of the shares of that class) may, whether or not the Company is being wound-up, be varied with the consent in writing of the holders of three-fourths of the issued shares of that class or with the sanction of a resolution passed by a majority of the votes cast at a separate general meeting of the holders of the shares of the class at which meeting the necessary quorum shall be two persons at least holding or representing by proxy one-third of the issued 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.
MEETINGS OF MEMBERS
15. Annual General Meetings
Unless the Members elect otherwise by resolution at a general meeting, the annual general meeting shall be held in each year (other than the year of incorporation) at such time and place as the President or the Chairman (if any) or any two Directors or any Director and the Secretary or the Board shall appoint.
16. Special General Meetings
The President or the Chairman (if any) or any two Directors or any Director and the Secretary or the Board may convene a special general meeting whenever in their judgment such a meeting is necessary.
17. Requisitioned General Meetings
The Board shall, on the requisition of Members holding at the date of the deposit of the requisition not less than one-tenth of such of the paid-up share capital of the Company as at the date of the deposit carries the right to vote at general meetings, forthwith proceed to convene a special general meeting and the provisions of the Companies Act shall apply.
18. Notice
18.1 At least five days' notice of an annual general meeting shall be given to each Member entitled to attend and vote at such meeting, stating the date, place and time at which the meeting is to be held, that the election of Directors will take place thereat, and as far as practicable, the other business to be conducted at the meeting.
18.2 At least five days' notice of a special general meeting shall be given to each Member entitled to attend and vote at such meeting, stating the date, time, place and the general nature of the business to be considered at the meeting.
18.3 The Board may fix any date as the record date for determining the Members entitled to receive notice of and to vote at any general meeting.
18.4 A general meeting shall, notwithstanding that it is called on shorter notice than that specified in these Bye-laws, be deemed to have been properly called if it is so agreed by (i) all the Members entitled to attend and vote thereat in the case of an annual general meeting; and (ii) by a majority in number of the Members having the right to attend and vote at the meeting, being a majority together holding not less than 95% in nominal value of the shares giving a right to attend and vote at such meeting in the case of a special general meeting.
18.5 The accidental omission to give notice of a general meeting to, or the non-receipt of a notice of a general meeting by, any person entitled to receive notice shall not invalidate the proceedings at that meeting.
19. Giving Notice and Access
19.1 A notice may be given by the Company to a Member:
(a) by delivering it to such Member in person; or
(b) by sending it by letter mail or courier to such Member's address in the Register of Members; or
(c) by transmitting it by electronic means (including facsimile and electronic mail, but not telephone) in accordance with such directions as may be given by such Member to that Company for such purpose; or
(d) in accordance with Bye-law 19.4.
19.2 Any notice required to be given to a Member shall, with respect to any shares held jointly by two or more persons, be given to whichever of such persons is named first in the Register of Members and notice so given shall be sufficient notice to all the holders of such shares.
19.3 Any notice (save for one delivered in accordance with Bye-law 19.4) shall be deemed to have been served at the time when the same would be delivered in the ordinary course of transmission and, in providing such service, it shall be sufficient to prove that the notice was properly addressed and prepaid, if posted, and the time when it was posted, delivered to the courier or transmitted by electronic means.
19.4 Where a Member indicates his consent (in a form and manner satisfactory to the Board) to receive information or documents by accessing them on a website rather than by other means, the Board may deliver such information or documents by notifying the Member of their availability and including therein the address of the website, the place on the website where the information or document may be found, and instructions as to how the information or document may be accessed on the website.
19.5 In the case of information or documents delivered in accordance with Bye-law 19.4, service shall be deemed to have occurred when (i) the Member is notified in accordance with that Bye-law; and (ii) the information or document is published on the website.
20. Postponement of General Meeting
The Secretary may postpone any general meeting called in accordance with these Bye-laws if such postponement is given to the Members before the time of such meeting. Fresh notice of the date, time and place for the postponed meeting shall be given to each Member in accordance with these Bye-laws.
21. Telephonic or Electronic Participation in Meetings
Members may participate in any general meeting by telephonic or such other electronic means as permit all persons participating in the meeting to communicate with each other simultaneously and instantaneously, and participation in such a meeting shall constitute presence in person at such meeting.
22. Quorum at General Meetings
22.1 At any general meeting two or more Members present in person or by proxy and representing in excess of a majority of the total issued voting shares in the Company throughout the meeting shall form a quorum for the transaction of business, provided that if the Company shall at any time have only one Member, one Member present in person or by proxy shall form a quorum for the transaction of business at any general meeting held during such time.
22.2 If within thirty minutes from the time appointed for the meeting a quorum is not present, then, in the case of a meeting convened on a requisition, the meeting shall be deemed cancelled and, in any other case, the meeting shall stand adjourned to the same day one week later, at the same time and place or to such other day, time or place as the Secretary may determine. Unless the meeting is adjourned to a specific date, time and place announced at the meeting being adjourned, fresh notice of the resumption of the meeting shall be given to each Member entitled to attend and vote at such meeting in accordance with these Bye-laws.
23. Chairman to Preside at General Meetings
Unless otherwise agreed by a majority of those attending and entitled to vote thereat, the Chairman, if there be one, and if not the President, if there be one, shall act as chairman at all general meetings at which such person is present. In their absence a chairman shall be appointed or elected by those present at the meeting and entitled to vote.
24. Voting on Resolutions
24.1 Subject to the Companies Act and these Bye-laws, any question proposed for the consideration of the Members at any general meeting shall be decided by the affirmative votes of a majority of the votes cast in accordance with these Bye-laws and in the case of an equality of votes the chairman of such meeting shall not be entitled to a casting vote and the resolution shall fail.
24.2 No member shall be entitled to vote at a general meeting unless such Member has paid all the calls on all shares held by such Member.
24.3 At any general meeting a resolution put to the vote of the meeting shall, in the first instance, be voted upon by a show of hands and, subject to any rights or restrictions for the time being lawfully attached to any class of shares and subject to these Bye-laws, every Member present in person and every person holding a valid proxy at such meeting shall be entitled to one vote and shall cast such vote by raising his hand.
24.4 In the event that a Member participates in a general meeting by telephone or electronic means, the chairman of the meeting shall direct the manner in which such Member may cast his vote on a show of hands.
24.5 At any general meeting if an amendment is proposed to any resolution under consideration and the chairman of the meeting rules on whether or not the proposed amendment is out of order, the proceedings on the substantive resolution shall not be invalidated by any error in such ruling.
24.6 At any general meeting a declaration by the chairman of the meeting that a question proposed for consideration has, on a show of hands, been carried, or carried unanimously, or by a particular majority, or lost, and an entry to that effect in a book containing the minutes of the proceedings of the Company shall, subject to these Bye-laws, be conclusive evidence of that fact.
25. Power to Demand a Vote on a Poll
25.1 Notwithstanding the foregoing, a poll may be demanded by any of the following persons:
(a) the chairman of the meeting; or
(b) at least three Members present in person or represented by proxy; or
(c) any Member or Members present in person or represented by proxy and holding between them not less than one-tenth of the total voting rights of all the Members having the right to vote at such meeting; or
(d) any Member or Members present in person or represented by proxy holding shares in the Company conferring the right to vote at such meeting, being shares on which an aggregate sum has been paid up equal to not less than one-tenth of the total amount paid up on all such shares conferring such right.
25.2 Where a poll is demanded, subject to any rights or restrictions for the time being lawfully attached to any class of shares, every person present at such meeting shall have one vote for each share of which such person is the holder or for which such person holds a proxy and such vote shall be counted by ballot as described herein, or in the case of a general meeting at which one or more Members are present by telephone or electronic means, in such manner as the chairman of the meeting may direct and the result of such poll shall be deemed to be the resolution of the meeting at which the poll was demanded and shall replace any previous resolution upon the same matter which has been the subject of a show of hands. A person entitled to more than one vote need not use all his votes or cast all the votes he uses in the same way.
25.3 A poll demanded for the purpose of electing a chairman of the meeting or on a question of adjournment shall be taken forthwith. A poll demanded on any other question shall be taken at such time and in such manner during such meeting as the chairman (or acting chairman) of the meeting may direct. Any business other than that upon which a poll has been demanded may be conducted pending the taking of the poll.
25.4 Where a vote is taken by poll, each person physically present and entitled to vote shall be furnished with a ballot paper on which such person shall record his vote in such manner as shall be determined at the meeting having regard to the nature of the question on which the vote is taken, and each ballot paper shall be signed or initialed or otherwise marked so as to identify the voter and the registered holder in the case of a proxy. Each person present by telephone or electronic means shall cast his vote in such manner as the chairman shall direct. At the conclusion of the poll, the ballot papers and votes cast in accordance with such directions shall be examined and counted by a
committee of not less than two Members or proxy holders appointed by the chairman for the purpose and the result of the poll shall be declared by the chairman.
26. Voting by Joint Holders of Shares
In the case of joint holders, the vote of the senior who tenders a vote (whether in person or by proxy) shall be accepted to the exclusion of the votes of the other joint holders, and for this purpose seniority shall be determined by the order in which the names stand in the Register of Members.
27. Instrument of Proxy
27.1 An instrument appointing a proxy shall be in writing in substantially the form set out at Schedule "D" or such other form as the chairman of the meeting shall accept. The instrument of proxy shall be deemed to confer authority to demand or join in demanding a poll, be heard at the meeting and to vote on any amendment of a written resolution or amendment of a resolution put to the meeting for which it is given as the proxy think s fit. The instrument of proxy shall, unless it otherwise provides, be valid as well for any adjournment of the meeting to which it relates.
27.2 The instrument appointing a proxy must be received by the Company at the Registered Office or at such other place or in such manner as is specified in the notice convening the meeting or in any instrument of proxy sent out by the Company in relation to the meeting at which the person named in the instrument appointing a proxy proposes to vote, and an instrument appointing a proxy which is not received in the manner so prescribed shall be invalid.
27.3 A Member who is the holder of two or more shares may appoint more than one proxy to represent him and vote on his behalf in respect of different shares.
27.4 The decision of the chairman of any general meeting as to the validity of any appointment of a proxy shall be final.
28. Representation of Corporate Member
28.1 A corporation which is a Member may, by written instrument, authorise such person or persons as it thinks fit to act as its representative at any meeting and any person so authorised shall be entitled to exercise the same powers on behalf of the corporation which such person represents as that corporation could exercise if it were an individual Member, and that Member shall be deemed to be present in person at any such meeting attended by its authorised representative or representatives.
28.2 Notwithstanding Bye-law 28.1, the chairman of the meeting may accept such assurances as he thinks fit as to the right of any person to attend and vote at general meetings on behalf of a corporation which is a Member.
29. Adjournment of General Meeting
The chairman of a general meeting may, with the consent of the Members at any general meeting at which a quorum is present, and shall if so directed by the meeting, adjourn the meeting. Unless the meeting is adjourned to a specific date, place and time announced at the meeting being adjourned, fresh notice of the date, place and time for the resumption of the adjourned meeting shall be given to each Member entitled to attend and vote at such meeting in accordance with these Bye-laws.
30. Written Resolutions
30.1 Subject to these Bye-laws, anything which may be done by resolution of the Company in general meeting or by resolution of a meeting of any class of the Members may, without a meeting may be done by written resolution in accordance with this Bye-law.
30.2 Notice of a written resolution shall be given, and a copy of the resolution shall be circulated to all Members who would be entitled to attend a meeting and vote thereon. The accidental omission to give notice to, or the non-receipt of a notice by, any Member does not invalidate the passing of a resolution.
30.3 A written resolution is passed when it is signed by, or in the case of a Member that is a corporation, on behalf of, the Members who at the date that the notice is given represent such majority of votes as would be required if the resolution was voted on at a meeting of Members at which all Members entitled to attend and vote thereat were present and voting.
30.4 A resolution in writing may be signed in any number of counterparts.
30.5 A resolution in writing made in accordance with this Bye-law is as valid as if it had been passed by the Company in general meeting or by a meeting of the relevant class of Members, as the case may be, and any reference in any Bye-law to a meeting at which a resolution is passed or to Members voting in favour of a resolution shall be construed accordingly.
30.6 A resolution in writing made in accordance with this Bye-law shall constitute minutes for the purposes of the Companies Act.
30.7 This Bye-law shall not apply to:
(a) a resolution passed to remove an Auditor from office before the expiration of his term of office; or
(b) a resolution passed for the purpose of removing a Director before the expiration of his term of office.
30.8 For the purposes of this Bye-law, the effective date of the resolution is the date when the resolution is signed by, or in the case of a Member that is a corporation whether or not a company within the meaning of the Companies Act, on behalf of, the last Member whose signature results in the necessary voting majority being achieved and any
reference in any Bye-law to the date of passing of a resolution is, in relation to a resolution made in accordance with this Bye-law, a reference to such date.
31. Directors Attendance at General Meetings
The Directors shall be entitled to receive notice of, attend and be heard at any general meeting.
DIVIDENDS AND CAPITALISATION
32. Dividends
32.1 The Board may, subject to these Bye-laws and in accordance with the Companies Act, declare a dividend to be paid to the Members, in proportion to the number of shares held by them, and such dividend may be paid in cash or wholly or partly in specie in which case the Board may fix the value for distribution in specie of any assets. No unpaid dividend shall bear interest as against the Company.
32.2 The Board may fix any date as the record date for determining the Members entitled to receive any dividend.
32.3 The Company may pay dividends in proportion to the amount paid up on each share where a larger amount is paid up on some shares than on others.
32.4 The Board may declare and make such other distributions (in cash or in specie) to the Members as may be lawfully made out of assets of the Company. No unpaid distribution shall bear interest as against the Company.
33. Power to Set Aside Profits
The Board may, before declaring a dividend, set aside out of the surplus or profits of the Company, such amount as it thinks proper as a reserve to be used to meet contingencies or for equalising dividends or for any other purpose.
34. Method of Payment
34.1 Any dividend, interest, or other moneys payable in cash in respect of the shares may be paid by cheque or draft sent through the post directed to the Member at such Member's address in the Register of Members, or to such person and to such address as the holder may in writing direct.
34.2 In the case of joint holders, any dividend, interest or other moneys payable in cash in respect of shares may be paid by cheque or draft sent through the post directed to the address of the holder first named in the Register of Members, or to such person and to such address as the joint holders may in writing direct. If two or more persons are registered as joint holders of any shares any one can give an effectual receipt for any dividend paid in respect of such shares.
34.3 The Board may deduct from the dividends or distributions payable to any Member all moneys due from such Member to the Company on account of calls or otherwise.
35. Capitalisation
35.1 The Board may capitalise any amount for the time being standing to the credit of any of the Company's share premium or reserve accounts or to the credit of the profit and loss account or otherwise available for distribution by applying such amount in paying up unissued shares to be allotted as fully paid bonus shares pro rata to the Members.
35.2 The Board may capitalise any amount for the time being standing to the credit of a reserve account or amounts otherwise available for dividend distribution by applying such amounts in paying up in full, partly or nil paid shares of those Members who would have been entitled to such amounts if they were distributed by way of dividend or distribution.
DIRECTORS AND OFFICERS
36. Election of Directors
36.1 The Board shall be elected or appointed in the first place at the statutory meeting of the Company and thereafter, except in the case of a casual vacancy, at the annual general meeting or at any special general meeting called for that purpose. The Company may in general meeting set a shareholding requirement for Directors but unless so set there shall be no such requirement.
36.2 At any general meeting the Members may authorise the Board to fill any vacancy in their number left unfilled at a general meeting.
37. Number of Directors
The Board shall consist of not less than one Director or such number as the Members may determine.
38. Term of Office of Directors
Directors shall hold office for such term as the Members may determine or, in the absence of such determination, until the next annual general meeting or until their successors are elected or appointed or their office is otherwise vacated.
39. Alternate Directors
39.1 At any general meeting, the Members may elect a person or persons to act as a Director in the alternative to any one or more Directors or may authorise the Board to appoint such Alternate Directors.
39.2 Unless the Members otherwise resolve, any Director may appoint a person or persons to act as a Director in the alternative to himself by notice deposited with the Secretary. Any person so elected or appointed shall have all the rights and powers of the Director or Directors for whom such person is appointed in the alternative provided that such
person shall not be counted more than once in determining whether or not a quorum is present.
39.3 An Alternate Director shall be entitled to receive notice of all meetings of the Board and to attend and vote at any such meeting at which a Director for whom such Alternate Director was appointed in the alternative is not personally present and generally to perform at such meeting all the functions of such Director for whom such Alternate Director was appointed.
39.4 An Alternate Director shall cease to be such if the Director for whom he was appointed to act as a Director in the alternative ceases for any reason to be a Director, but he may be re-appointed by the Board as an alternate to the person appointed to fill the vacancy in accordance with these Bye-laws.
40. Removal of Directors
40.1 Subject to any provision to the contrary in these Bye-laws, the Members entitled to vote for the election of Directors may, at any special general meeting convened and held in accordance with these Bye-laws, remove a Director provided that the notice of any such meeting convened for the purpose of removing a Director shall contain a statement of the intention so to do and be served on such Director not less than 14 days before the meeting and at such meeting the Director shall be entitled to be heard on the motion for such Director's removal.
40.2 If a Director is removed from the Board under this Bye-law, the Members may fill the vacancy at the meeting at which such Director is removed. In the absence of such election or appointment, the Board may fill the vacancy.
41. Vacancy in the Office of Director
41.1 The office of Director shall be vacated if the Director:
(a) is removed from office pursuant to these Bye-laws or is prohibited from being a Director by law;
(b) is or becomes bankrupt, or makes any arrangement or composition with his creditors generally;
(c) is or becomes of unsound mind or dies; or
(d) resigns his office by notice to the Company.
41.2 The Board shall have the power to appoint any person as a Director to fill a vacancy on the Board occurring as a result of the death, disability, disqualification or resignation of any Director and to appoint an Alternate Director to any Director so appointed.
42. Remuneration of Directors
The remuneration (if any) of the Directors shall be determined by the Company in a general meeting and shall be deemed to accrue from day to day. The Directors may also be paid all
travel, hotel and other expenses properly incurred by them in attending and returning from the meetings of the Board, any committee appointed by the Board, general meetings, or in connection with the business of the Company or their duties as Directors generally.
43. Defect in Appointment
All acts done in good faith by the Board, any Director, a member of a committee appointed by the Board, any person to whom the Board may have delegated any of its powers, or any person acting as a Director shall, notwithstanding that it be afterwards discovered that there was some defect in the appointment of any Director or person acting as aforesaid, or that he was, or any of them were, disqualified, be as valid as if every such person had been duly appointed and was qualified to be a Director or act in the relevant capacity.
44. Directors to Manage Business
The business of the Company shall be managed and conducted by the Board. In managing the business of the Company, the Board may exercise all such powers of the Company as are not required to be exercised by the Company in general meeting by these Bye-laws or the Companies Act.
45. Powers of the Board of Directors
The Board may:
(a) appoint one or more Directors to the office of managing director or chief executive officer of the Company, who shall, subject to the control of the Board, supervise and administer all of the general business and affairs of the Company;
(b) appoint a person to act as manager of the Company's day-to-day business and may entrust to and confer upon such manager such powers and duties as it deems appropriate for the transaction or conduct of such business;
(c) appoint, suspend, or remove any manager, secretary, clerk, agent or employee of the Company and may fix their remuneration and determine their duties;
(d) exercise all the powers of the Company to borrow money and to mortgage or charge its undertaking, property and uncalled capital, or any part thereof, and may issue debentures, debenture stock and other securities whether outright or as security for any debt, liability or obligation of the Company or any third party;
(e) by power of attorney, appoint any company, firm, person or body of persons, whether nominated directly or indirectly by the Board, to be an attorney of the Company for such purposes and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Board) and for such period and subject to such conditions as it may think fit and any such power of attorney may contain such provisions for the protection and convenience of persons dealing with any such attorney as the Board may think fit and may also authorise any such attorney to sub-delegate all or any of the powers, authorities and discretions so vested in the attorney;
(f) procure that the Company pays all expenses incurred in promoting and incorporating the Company;
(g) in connection with the issue of any share, pay such commission and brokerage as may be permitted by law; and
(h) authorise any company, firm, person or body of persons to act on behalf of the Company for any specific purpose and in connection therewith to execute any deed, agreement, document or instrument on behalf of the Company.
(i) present any petition and make any application in connection with the liquidation or reorganisation of Company;
(J) delegate any of its powers (including the power to sub-delegate) to a committee of one or more persons appointed by the Board which may consist partly or entirely of non-Directors, provided that every such committee shall conform to such directions as the Board shall impose on them and provided further that the meetings and proceedings of any such committee shall be governed by the provisions of these Bye-laws regulating the meetings and proceedings of the Board, so far as the same are applicable and are not superseded by directions imposed by the Board; and
(k) delegate any of its powers (including the power to sub-delegate) to any person on such terms and in such manner as the Board may see fit.
46. Register of Directors and Officers
The Board shall cause to be kept in one or more books at the Registered Office a Register of Directors and Officers and shall enter therein the particulars required by the Companies Act.
47. Appointment of Officers
The Board may appoint such Officers (who may or may not be Directors) as the Board may determine.
48. Appointment of Secretary
The Secretary shall be appointed by the Board from time to time.
49. Duties of Officers
The Officers shall have such powers and perform such duties in the management, business and affairs of the Company as may be delegated to them by the Board from time to time.
50. Remuneration of Officers
The Officers shall receive such remuneration as the Board may determine.
51. Conflicts of Interest
51.1 Any Director, or any Director’s firm, partner or any company with whom any Director is associated, may act in any capacity for, be employed by or render services to the Company and such Director or such Director's firm, partner or company shall be entitled to remuneration as if such Director were not a Director. Nothing contained in this Bye-law shall authorise a Director or Director's firm, partner or company to act as Auditor to the Company.
51.2 A Director who is directly or indirectly interested in a contract or proposed contract or arrangement with the Company shall declare the nature of such interest as required by the Companies Act.
51.3 Following a declaration being made pursuant to this Bye-law, and unless disqualified by the chairman of the relevant Board meeting, a Director may vote in respect of any contract or proposed contract or arrangement in which such director is interested and may be counted in the quorum for such meeting.
52. Indemnification and Exculpation of Directors and Officers
52.1 The Directors, Secretary and other Officers (the term Officer for this Bye-law to include any person appointed to any committee by the Board) for the time being acting in relation to any of the affairs of the Company, any subsidiary thereof, and the liquidation or trustees (if any) for the time being acting in relation to any of the affairs of the Company or any subsidiary thereof and every one of them, and their heirs, executors and administrators, shall be indemnified and secured harmless out of the assets of the Company from and against all actions, costs, charges, losses, damages and expenses which they or any of them, their heirs, executors or administrators, shall or may incur or sustain by or by reason of any act done, concurred in or omitted in or about the execution of their duty, or supposed duty, or in their respective offices or trusts, and none of them shall be answerable for the acts, receipts, neglects or defaults of the others of them or for joining in any receipts for the sake of conformity, or for any bankers or other persons with whom any moneys or effects belonging to the Company shall or may be lodged or deposited for safe custody, or for insufficiency or deficiency of any security upon which any moneys of or belonging to the Company shall be placed out on or invested, or for any other loss, misfortune or damage which may happen in the execution of their respective offices or trusts, or in relation thereto, PROVIDED THAT this indemnity shall not extend to any matter in respect of any fraud or dishonesty which may attach to any of the said persons.
52.2 Each Member agrees to waive any claim or right of action such Member might have, whether individually or by or in the right of the Company, against any Director or Officer 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 or any subsidiary thereof, PROVIDED THAT such waiver shall not extend to any matter in respect of any fraud or dishonesty which may attach to such Director or Officer.
52.3 The Company may purchase and maintain insurance for the benefit of any Director or Officer against any liability incurred by him under the Companies Act in his capacity as a
Director or Officer or indemnifying such Director or Officer in respect of any loss arising or liability attaching to him by virtue of any rule of law in respect of any negligence, default, breach of duty or breach of trust of which the Director or Officer may be guilty in relation to the Company or any subsidiary thereof.
52.4 The Company may advance moneys to a Director or Officer for the costs, charges and expenses incurred by the Director or Officer in defending any civil or criminal proceedings against him, on condition that the Director or Officer shall repay the advance if any allegation of fraud or dishonesty is proved against him.
MEETINGS OF THE BOARD OF DIRECTORS
53. Board Meetings
The Board may meet for the transaction of business, adjourn and otherwise regulate its meetings as it sees fit. A resolution put to the vote at a meeting of the Board shall be carried by the affirmative votes of a majority of the votes cast and in the case of an equality of votes the resolution shall fail.
54. Notice of Board Meetings
A Director may, and the Secretary or Assistant Secretary on the requisition of a Director shall, at any time summon a meeting of the Board. Notice of a meeting of the Board shall be deemed to be duly given to a Director if it is given to such Director verbally (including in person or by telephone) or otherwise communicated or sent to such Director by post, electronic means, or other mode of representing words in visible a form at such Director's last known address or in accordance with any other instructions given by such Director to the Company for this purpose.
55. Telephonic or electronic Participation in Meetings
Directors may participate in any meeting by telephonic or such electronic means as permit all persons participating in the meeting to communicate with each other simultaneously and instantaneously, and participation in such a meeting shall constitute presence in person at such meeting. Such a meeting shall be deemed to take place where the largest group of Directors participating in the meeting is physically assembled or, if there is no such group, where the chairman of the meeting then is.
56. Quorum at Board Meetings
The quorum necessary for the transaction of business at a meeting of the Board shall be one Director, or such number as the Members may determine.
57. Board to Continue in the Event of Vacancy
The Board may act notwithstanding any vacancy in its number but, if and so long as its number is reduced below the number fixed by these Bye-laws as the quorum necessary for the transaction of business at meetings of the Board, the continuing Directors or Director may act for the purpose of (i) summoning a general meeting; or (ii) preserving the assets of the Company.
58. Chairman to Preside
Unless otherwise agreed by a majority of the Directors attending, the Chairman, if there be one, and if not, the President, if there be one, shall act as chairman at all meetings of the Board at which such person is present. In their absence a chairman shall be appointed or elected by the Directors present at the meeting.
59. Written Resolutions
A resolution signed by all the Directors, which may be in counterparts, shall be as valid as if it had been passed at a meeting of the Board duly called and constituted, such resolution to be effective on the date on which the last Director signs the resolution. For the purposes of this Bye-law only, "the Directors" shall not include an Alternate Director.
60. Validity of Prior Acts of the Board
No regulation or alteration to these Bye-laws made by the Company in general meeting shall invalidate any prior act of the Board which would have been valid if that regulation or alteration had not been made.
ACCOUNTS
61. Books of Account
61.1 The Board shall cause to be kept proper records of account with respect to all transactions of the Company and in particular with respect to:
(a) all amounts of money received and expended by the Company and the matters in respect of which the receipt and expenditure relates;
(b) all sales and purchases of goods by the Company; and
(c) all assets and liabilities of the Company.
61.2 Such records of account shall be kept at the Registered Office, or subject to the Companies Act, at such other place as the Board thinks fit and shall be available for inspection by the Directors during normal business hours.
62. Financial Year End
The financial year end of the Company may be determined by resolution of the Board and failing such resolution shall be 31st December in each year.
AUDITS
63. Annual Audit
Subject to any rights to waive the laying of accounts or the appointment of an Auditor pursuant to the Companies Act, the accounts of the Company shall be audited at least once in every year.
64. Appointment of Auditor
64.1 Subject to the Companies Act and provided that the Members have not waived the requirement to hold an annual general meeting or appoint an Auditor, at the annual general meeting or at a subsequent special general meeting in each year, an independent representative of the Members shall be appointed by them as Auditor of the accounts of the Company.
64.2 The Auditor may be a Member but no Director, Officer or employee of the Company shall, during his continuance in office, be eligible to act as an Auditor of the Company.
64.3 The Auditor appointed by the Members shall continue to hold office until a successor is appointed by the Members or, if the Members fail to do so, until the Board appoints a successor.
65. Remuneration of Auditor
Save in the case of an Auditor appointed pursuant to Bye-law 70, the remuneration of the Auditor shall be fixed by the Company in a general meeting or in such manner as the Members may determine. In the case of an Auditor appointed pursuant to Bye-law 70, the remuneration of the Auditor shall be fixed by the Board.
66. Duties of Auditor
66.1 The financial statements provided for by these Bye-laws shall be audited by the Auditor in accordance with generally accepted auditing standards. The Auditor shall make a written report on such financial statements in accordance with generally accepted auditing standards.
66.2 The generally accepted auditing standards referred to in this Bye-law may be those of a country or jurisdiction other than Bermuda or such other generally accepted auditing standards as may be provided for in the Companies Act. If so, the financial statements and the report of the Auditor shall identify the generally accepted auditing standards used.
67. Access to Records
The Auditor shall at all reasonable times have access to all books kept by the Company and to all accounts and vouchers relating thereto, and the Auditor may call on the Directors or Officers of the Company for any information in their possession relating to the books or affairs of the Company.
68. Financial Statements
Subject to the waiver of the laying of accounts by the Members in accordance with the Companies Act, financial statements, as required by the Companies Act, shall be laid before the Members in an annual general meeting, or if the Members waive the requirement for an annual general meeting, financial statements, as required by the Companies Act, shall be made available to the Members in accordance with the Companies Act. A resolution in writing made in accordance with Bye-law 30 receiving, accepting, adopting, approving or otherwise acknowledging financial statements shall be deemed to be the laying of such statements before the Members in a general meeting.
69. Distribution of Auditor's Report
The report of the Auditor shall be submitted to the Members at a general meeting.
70. Vacancy in the Office of Auditor
The Board may fill any casual vacancy in the office of the Auditor.
CORPORATE RECORDS
71. Minutes
The Board shall cause minutes to be duly entered in books provided for the purpose of:
(a) all elections and appointments of Officers;
(b) the names of the Directors present at each meeting of the Board and of any committee appointed by the Board; and
(c) all resolutions and proceedings of general meetings of the Members, meetings of the Board, meetings of managers and meetings of committees appointed by the Board.
72. Place Where Corporate Records Kept
Minutes prepared in accordance with the Companies Act and these Bye-laws shall be kept by the Secretary at the Registered Office.
73. Form and Use of Seal
73.1 The Company may adopt a seal in such form as the Board may determine. The Board may adopt one or more duplicate seals for use in or outside Bermuda.
73.2 A seal may, but need not be affixed to any deed, instrument, share certificate or document, and if the seal is to be affixed to such deed, instrument, share certificate or document, it shall be attested by the signature of (i) any Director, or (ii) any Officer, or (iii) the Secretary, or (iv) any person authorised by the Board for that purpose.
73.3 A Resident Representative may, but need not, affix the seal of the Company to certify the authenticity of any copies of documents.
CHANGES TO CONSTITUTION
74. Alteration or amendment of Bye-laws
No Bye-law may be rescinded, altered or amended and no new Bye-law may be made save in accordance with the Companies Act and until such amendment or alteration has been approved by a resolution of the Board and by a resolution of the Members.
75. Alteration or amendment of Memorandum
No alteration or amendment to the Memorandum may be made save in accordance with the Companies Act and until such alteration or amendment has been approved by a resolution of the Board and by a resolution of the Members.
76. Discontinuance
The Board may exercise all the powers of the Company to discontinue the Company to a jurisdiction outside Bermuda pursuant to the Companies Act.
MISCELLANEOUS
77. Registered Office
The Registered Office shall be at such place in Bermuda as the Board shall from time to time determine.
78. Amalgamation and Merger
The Company may by resolution of the Members approve the amalgamation or merger of the Company with any other company wherever incorporated.
79. Conversion
The Company may by resolution of the Members approve a conversion of the Company into a partnership.
VOLUNTARY WINDING-UP AND DISSOLUTION
80. Winding-Up
If the Company shall be wound up the liquidator may, with the sanction of a resolution of the Members, divide amongst the Members in specie or in kind the whole or any part of the assets of the Company (whether they shall consist of property of the same kind or not) and may, for
such purpose, set such value as he deems fair upon any property to be divided as aforesaid and may determine how such division shall be carried out as between the Members or different classes of Members. The liquidator may, with the same sanction of a resolution of the Members, vest the whole or any part of such assets in the trustees upon such trusts for the benefit of the Members as the liquidator shall think fit, but so that no Member shall be compelled to accept any shares or other securities or assets whereon there is any liability.
SCHEDULE "A"
FORM OF NOTICE OF FORFEITURE (BYE-LAW 6)
Notice of Liability to Forfeiture for Non-Payment of Call
CF Bermuda Holdings Limited (the "Company")
You have failed to pay the call of [amount of call] made on the [ ] day of [ ], 20[ ], in respect of the [number] share(s) [number in figures] standing in your name in the Register of Members of the Company, on the [ ] day of [ ], 20[ ], the day appointed for payment of such call. You are hereby notified that unless you pay such call together with interest on such call at the rate of [ ] per annum calculated from the said [ ] day of [ ], 20[ ] at the registered office of the Company the share(s) will be liable to be forfeited.
Dated this [ ] day of [ ], 20[ ]
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[Signature of Secretary] | |
By Order of Board | |
SCHEDULE "B"
FORM OF TRANSFER (BYE-LAW 11)
Transfer of a Share or Shares
CF Bermuda Holdings Limited (the "Company")
FOR VALUE RECEIVED [amount], l/We, [name of transferor] hereby sell, assign and transfer unto [transferee] of [address], [number] of shares of the Company.
DATED this [ ] day of [ ], 20[ ]
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Signed by: | | In the presence of: |
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Transferor | | Witness |
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Transferee | | Witness |
SCHEDULE "C"
FORM OF TRANSFER (BYE-LAW 12.2)
Transfer by a Person Becoming Entitled on Death/Bankruptcy of a Member
CF Bermuda Holdings Limited (the "Company")
l/We, having become entitled in consequence of the [death/bankruptcy] of [name and address of deceased/bankrupt Member] to [number] share(s) standing in the Register of Members of the Company in the name of the said [name of deceased/bankrupt Member] instead of being registered myself/ourselves, elect to have [name of transferee] (the "Transferee") registered as a transferee of such share(s) and l/we do hereby accordingly transfer the said share(s) to the Transferee to hold the same unto the Transferee, his or her executors, administrators and assigns, subject to the conditions on which the same were held at the time of the execution hereof; and the Transferee does hereby agree to take the said share(s) subject to the same conditions.
DATED this [ ] day of [ ], 20[ ]
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Signed by: | | In the presence of: | |
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Transferor | | Witness | |
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Transferee | | Witness | |
SCHEDULE "D"
FORM OF MEMBER PROXY (BYE-LAW 27.1)
Proxy
CF Bermuda Holdings Limited (the "Company")
l/We, [insert names here], being a Member of the Company with [number] shares, HEREBY APPOINT [name] of [address] or failing him, [name] of [address] to be my/our proxy to vote for me/us at the meeting of the Members to be held on the [ ] day of [ ], 20[ ] and at any adjournment of such meeting. (Any restrictions on voting to be inserted here.)
Signed this [ ] day of [ ], [ ]
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| State of Delaware |
| Secretary of State |
Division of Corporations
Delivered 08:33 PM 05/19/2017 |
| FILED 08:33 PM 05/19/2017 |
| SR 20173778894 - File Number 6416367 |
CERTIFICATE OF INCORPORATION
OF
FGL US HOLDINGS INC.
FIRST: The name of the Corporation is FGL US Holdings Inc.
SECOND: The Corporation’s registered office in the State of Delaware is located at Corporation Trust Center, 1209 Orange Street in the City of Wilmington, County of New Castle 19801. The name of its registered agent at such address is The Corporation Trust Company,
THIRD: The nature of the business of the Corporation and its purpose is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the “DGCL”).
FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is 1,000 shares of Common Stock, par value $0.01 per share.
FIFTH: The name and mailing address of the incorporator is as follows:
Joshua P. Rosenstock
c/o Debevoise & Plimpton LLP
919 Third Avenue
New York, NY 10022
SIXTH: The following provisions are inserted for the management of the business, for the conduct of the affairs of the Corporation and for the purpose of creating, defining, limiting and regulating the powers of the Corporation and its directors and stockholders:
1. The number of directors of the Corporation shall be fixed and may be altered from time to time in the manner provided in the Bylaws, and vacancies in the Board of Directors and newly created directorships resulting from any increase in the authorized number of directors may be filled, and directors may be removed, as provided in the Bylaws.
2. The election of directors may be conducted in any manner approved by the stockholders at the time when the election is held and need not be by written ballot,
3. All corporate powers and authority of the Corporation (except as at the time otherwise provided by law, by this Certificate of Incorporation or by the Bylaws) shall be vested in and exercised by the Board of Directors.
4. The Board of Directors shall have the power without the assent or
vote of the stockholders to adopt, amend, alter or repeal the Bylaws, except to the extent that the Bylaws or this Certificate of Incorporation otherwise provide,
5. No director of the Corporation shall be liable to the Corporation or its stockholders for monetary damages for breach of his or her fiduciary duty as a director, provided that nothing contained in this Article shall eliminate or limit the liability of a director (a) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law, (c) under Section 174 of the DGCL, or (d) for any transaction from which the director derived an improper personal benefit.
SEVENTH: The Corporation expressly elects not to be governed by Section 203 of the DGCL,
EIGHTH:
1. In recognition and anticipation of the facts that (i) directors, managers, officers, members, partners, managing members, employees and/or agents of one or more members of the Investor Group (each of the foregoing, an “Investor Group Related Person”) may serve as directors and/or officers of the Corporation (which, for purposes of this Article Eighth, shall, unless the context otherwise requires, include any subsidiaries of the Corporation) and (ii) the Investor Group engages, and may continue to engage in the same or similar activities or related lines of business as those in which the Corporation, directly or indirectly, may engage and/or other business activities that overlap with or compete with those in which the Corporation, directly or indirectly, may engage, the provisions of this Article Eighth are set forth to regulate and define the conduct of certain affairs of the Corporation as they may involve the investors and the Investor Related Persons, and the powers, rights, duties and liabilities of the Corporation and its officers, directors and stockholders in connection therewith,
2. To the fullest extent permitted by law, the Investor Group and the Investor Group Related Persons shall have no duty, except and to the extent expressly assumed by contract, to refrain from engaging directly or indirectly in the same or similar business activities or lines of business as the Corporation, To the fullest extent permitted by law, the Corporation renounces any interest or expectancy of the Corporation in, or in being offered an opportunity to participate in, any potential transaction or matter which may be a corporate opportunity for both the Investor Group or the Investor Group Related Persons, on the one hand, and the Corporation, on the other. Except to the extent expressly assumed by contract, to the fullest extent permitted by law, the Investor Group and the Investor Group Related Persons shall have no duty to communicate or offer any
such corporate opportunity to the Corporation and shall not be liable to the Corporation or its stockholders for breach of any fiduciary duty as a stockholder, director and/or officer of the Corporation solely by reason of the fact that such party pursues or acquires such corporate opportunity for itself, himself or herself, directs such corporate opportunity to another person, or does not communicate information regarding such corporate opportunity to the Corporation,
3. Except as provided elsewhere in this Article Eighth, the Corporation hereby renounces any interest or expectancy of the Corporation in, or in being offered an opportunity to participate in, any potential transaction or matter which may be a corporate opportunity for both the Corporation and the Investor Group, about which a director and/or officer of the Corporation who is also an Investor Group Related Person acquires knowledge,
4. To the extent a court might hold that the conduct of any activity related to a corporate opportunity that is renounced in this Article Eighth to be a breach of duty to the Corporation or its stockholders, the Corporation hereby waives, to the fullest extent permitted by law, any and all claims and causes of action that the Corporation may have for such activities, To the fullest extent permitted by law, the provisions of this Article Eight apply equally to activities conducted in the future and that have been conducted in the past,
5. As used in this Article Eighth, the following definitions shall apply:
“Affiliates” shall have the meaning set forth in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended,
“Investor Group” shall mean CFS Holdings (Cayman) LP, CF Corporation, CF Capital Growth, LLC, Fidelity National Financial, Inc, and their respective Affiliates, and the respective successors and assigns of the foregoing,
NINTH: The Corporation reserves the right to amend or repeal any provision contained in this Certificate of Incorporation in the manner now or hereafter prescribed by the laws of the State of Delaware, and all rights herein conferred upon stockholders or directors are granted subject to this reservation,
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, I, the undersigned, being the incorporator hereinabove named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, do make and file this Certificate, hereby declaring and certifying that the facts herein stated are true, and accordingly have hereunto set my hand this 19th day of May, 2017.
| | |
| /s/Joshua Rosentock |
| Joshua P. Rosentock |
| Incorporator |
Signature Page to Certificate of Incorporation of FGL US Holdings Inc.
FGL US HOLDINGS INC.
BYLAWS
As Adopted on May 19, 2017
FGL US HOLDINGS INC.
BYLAWS
Table of Contents
| | | | | | | | | | | |
| | | Page |
| | | |
| | | |
| ARTICLE I | MEETINGS OF STOCKHOLDERS | 1 |
| | | |
| Section 1.01. | Annual Meetings | 1 |
| Section 1.02. | Special Meetings | 1 |
| Section 1.03. | Participation in Meetings by Remote Communication | 1 |
| Section 1.04. | Notice of Meetings; Waiver of Notice | 1 |
| Section 1.05. | Proxies | 2 |
| Section 1.06. | Voting Lists | 2 |
| Section 1.07. | Quorum | 3 |
| Section 1.08. | Voting | 3 |
| Section 1.09. | Adjournment | 3 |
| Section 1.10. | Organization; Procedure | 3 |
| Section 1.11. | Consent of Stockholders in Lieu of Meeting | 4 |
| | | |
| ARTICLE II | BOARD OF DIRECTORS | 4 |
| | | |
| Section 2.01. | General Powers | 4 |
| Section 2.02. | Number and Term of Office | 4 |
| Section 2.03. | Election of Directors | 5 |
| Section 2.04. | Regular Meetings | 5 |
| Section 2.05. | Special Meetings | 5 |
| Section 2.06. | Notice of Meetings; Waiver of Notice | 5 |
| Section 2.07. | Quorum; Voting | 5 |
| Section 2.08. | Action by Telephonic Communications | 5 |
| Section 2.09. | Adjournment | 6 |
| Section 2.10. | Action Without a Meeting | 6 |
| Section 2.11. | Regulations | 6 |
| Section 2.12. | Resignations of Directors | 6 |
| Section 2.13. | Removal of Directors | 6 |
| Section 2.14. | Vacancies and Newly Created Directorships | 6 |
| Section 2.15. | Compensation | 6 |
| Section 2.16. | Reliance on Accounts and Reports, etc | 7 |
| | | |
Table of Contents
(continued)
| | | | | | | | | | | |
| | | Page |
| | | |
| ARTICLE III | COMMITTEES | 7 |
| | | |
| Section 3.01. | Designation of Committees | 7 |
| Section 3.02. | Members and Alternate Members | 7 |
| Section 3.03. | Committee Procedures | 7 |
| Section 3.04. | Meetings and Actions of Committees | 8 |
| Section 3.05. | Resignations and Removals | 8 |
| Section 3.06. | Vacancies | 8 |
| | | |
| ARTICLE IV | OFFICERS | 8 |
| | | |
| Section 4.01. | Officers | 8 |
| Section 4.02. | Election | 8 |
| Section 4.03. | Compensation | 9 |
| Section 4.04. | Removal and Resignation; Vacancies | 9 |
| Section 4.05. | Authority and Duties of Officers | 9 |
| Section 4.06. | President | 9 |
| Section 4.07. | Vice Presidents | 9 |
| Section 4.08. | Secretary | 10 |
| Section 4.09. | Treasurer | 10 |
| | | |
| ARTICLE V | CAPITAL STOCK | 11 |
| | | |
| Section 5.01. | Certificates of Stock | 11 |
| Section 5.02. | Facsimile Signatures | 11 |
| Section 5.03. | Lost, Stolen or Destroyed Certificates | 12 |
| Section 5.04. | Transfer of Stock | 12 |
| Section 5.05. | Registered Stockholders | 12 |
| | | |
| ARTICLE VI | INDEMNIFICATION | 12 |
| | | |
| Section 6.01. | Indemnification | 12 |
| Section 6.02. | Advance of Expenses | 13 |
| Section 6.03. | Procedure for Indemnification | 13 |
| Section 6.04. | Burden of Proof | 14 |
| Section 6.05. | Contract Right; Non-Exclusivity; Survival | 14 |
| Section 6.06. | Insurance | 14 |
| Section 6.07. | Employees and Agents | 15 |
| Section 6.08. | Interpretation; Severability | 15 |
Table of Contents
(continued)
| | | | | | | | | | | |
| | | Page |
| | | |
| ARTICLE VII | OFFICES | 15 |
| | | |
| Section 7.01. | Registered Office | 15 |
| Section 7.02. | Other Offices | 15 |
| | | |
| ARTICLE VIII | GENERAL PROVISIONS | 15 |
| | | |
| Section 8.01. | Dividends | 15 |
| Section 8.02. | Reserves | 16 |
| Section 8.03. | Execution of Instruments | 16 |
| Section 8.04. | Voting as Stockholder | 16 |
| Section 8.05. | Fiscal Year | 16 |
| Section 8.06. | Seal | 16 |
| Section 8.07. | Books and Records; Inspection | 16 |
| Section 8.08. | Electronic Transmission | 16 |
| | | |
| ARTICLE IX | AMENDMENT OF BYLAWS | 17 |
| | | |
| Section 9.01. | Amendment | 17 |
| | | |
| ARTICLE X | CONSTRUCTION | 17 |
| | | |
| Section 10.01. | Construction | 17 |
FGL US HOLDINGS INC.
BYLAWS
As adopted on May 19, 2017
ARTICLE I
MEETINGS OF STOCKHOLDERS
Section 1.01. Annual Meetings. An annual meeting of the stockholders of the corporation for the election of directors and for the transaction of such other business as properly may come before such meeting shall be held each year either within or without the State of Delaware on such date and at such place and time as are designated by resolution of the corporation’s board of directors (the “Board”), unless the stockholders have acted by written consent to elect directors as permitted by the General Corporation Law of the State of Delaware, as amended from time to time (the “DGCL”).
Section 1.02. Special Meetings. A special meeting of the stockholders for any purpose may be called at any time by the President (or, in the event of his or her absence or disability, by any Vice President) or by the Secretary pursuant to a resolution of the Board, to be held either within or without the State of Delaware on such date and at such time and place as are designated by such officer or in such resolution.
Section 1.03. Participation in Meetings by Remote Communication. The Board, acting in its sole discretion, may establish guidelines and procedures in accordance with applicable provisions of the DGCL and any other applicable law for the participation by stockholders and proxyholders in a meeting of stockholders by means of remote communications, and may determine that any meeting of stockholders will not be held at any place but will be held solely by means of remote communication. Stockholders and proxyholders complying with such procedures and guidelines and otherwise entitled to vote at a meeting of stockholders shall be deemed present in person and entitled to vote at a meeting of stockholders, whether such meeting is to be held at a designated place or solely by means of remote communication.
Section 1.04. Notice of Meetings; Waiver of Notice.
(a) The Secretary or any Assistant Secretary shall cause notice of each meeting of stockholders to be given in writing in a manner permitted by the DGCL not less than 10 days nor more than 60 days prior to the meeting to each stockholder of record entitled to vote at such meeting, subject to such exclusions as are then permitted by the DGCL. The notice shall specify (i) the place, if any, date and time of such meeting, (ii) the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, (iii) in the case of a special meeting, the purpose or purposes for which such meeting is called, and (iv) such other information as may be required by law or as may be deemed appropriate by the President, the Vice President calling the meeting, or the Board. If the stockholder list referred to in Section 1.06 of these bylaws is made accessible on an electronic
network, the notice of meeting must indicate how the stockholder list can be accessed. If the meeting of stockholders is to be held solely by means of electronic communications, the notice of meeting must provide the information required to access such stockholder list during the meeting.
(b) A written waiver of notice of meeting signed by a stockholder or a waiver by electronic transmission by a stockholder, whether given before or after the meeting time stated in such notice, is deemed equivalent to notice. Attendance of a stockholder at a meeting is a waiver of notice of such meeting, except when the stockholder attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business at the meeting on the ground that the meeting is not lawfully called or convened.
Section 1.05. Proxies.
(a) Each stockholder entitled to vote at a meeting of stockholders or to express consent to or dissent from corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy.
(b) A stockholder may authorize a valid proxy by executing a written instrument signed by such stockholder, or by causing his or her signature to be affixed to such writing by any reasonable means, including but not limited to by facsimile signature, or by transmitting or authorizing an electronic transmission (as defined in Section 8.08 of these bylaws) setting forth an authorization to act as proxy to the person designated as the holder of the proxy, a proxy solicitation firm or a like authorized agent. Proxies by electronic transmission must either set forth, or be submitted with, information from which it can be determined that the electronic transmission was authorized by the stockholder. Any copy, facsimile telecommunication or other reliable reproduction of a writing or transmission created pursuant to this section may be substituted or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be used if such copy, facsimile telecommunication or other reproduction is a complete reproduction of the entire original writing or transmission.
(c) No proxy may be voted or acted upon after the expiration of three years from the date of such proxy, unless such proxy provides for a longer period. Every proxy is revocable at the pleasure of the stockholder executing it unless the proxy states that it is irrevocable and applicable law makes it irrevocable. A stockholder may revoke any proxy that is not irrevocable by attending the meeting and voting in person or by filing an instrument in writing revoking the proxy or by filing another duly executed proxy bearing a later date with the Secretary.
Section 1.06. Voting Lists. The officer of the corporation who has charge of the stock ledger of the corporation shall prepare, at least 10 days before every meeting of the stockholders (and before any adjournment thereof for which a new record date has been set), a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. This list shall be open to the examination of any stockholder prior to and during the meeting for any purpose germane to the meeting as required by the DGCL or other applicable law. The stock
ledger shall be the only evidence as to who are the stockholders entitled by this section to examine the list required by this section or to vote in person or by proxy at any meeting of stockholders.
Section 1.07. Quorum. Except as otherwise required by law or by the certificate of incorporation, the presence in person or by proxy of the holders of record of a majority of the shares entitled to vote at a meeting of stockholders shall constitute a quorum for the transaction of business at such meeting.
Section 1.08. Voting. Every holder of record of shares entitled to vote at a meeting of stockholders is entitled to one vote for each share outstanding in his or her name on the books of the corporation (x) at the close of business on the record date for such meeting, or (y) if no record date has been fixed, at the close of business on the day next preceding the day on which notice of the meeting is given, or if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. All matters at any meeting at which a quorum is present, including the election of directors, shall be decided by the affirmative vote of a majority of the shares of stock present in person or represented by proxy at the meeting and entitled to vote on the subject matter in question, unless otherwise expressly provided by express provision of law or the certificate of incorporation. The stockholders do not have the right to cumulate their votes for the election of directors.
Section 1.09. Adjournment. Any meeting of stockholders may be adjourned from time to time, by the chairperson of the meeting or by the vote of a majority of the shares of stock present in person or represented by proxy at the meeting, to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the place, if any, and date and time thereof (and the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting) are announced at the meeting at which the adjournment is taken unless the adjournment is for more than 30 days or a new record date is fixed for the adjourned meeting after the adjournment, in which case notice of the adjourned meeting in accordance with Section 1.04 of these bylaws shall be given to each stockholder of record entitled to vote at the meeting. At the adjourned meeting, the corporation may transact any business that might have been transacted at the original meeting.
Section 1.10. Organization; Procedure. The President shall preside over each meeting of stockholders. If the President is absent or disabled, the presiding officer shall be selected by the Board or, failing action by the Board, by a majority of the stockholders present in person or represented by proxy. The Secretary, or in the event of his or her absence or disability, an appointee of the presiding officer, shall act as secretary of the meeting. The Board may make such rules or regulations for the conduct of meetings of stockholders as it shall deem necessary, appropriate or convenient. Subject to any such rules and regulations, the presiding officer of any meeting shall have the right and authority to prescribe rules, regulations and procedures for such meeting and to take all such actions as in the judgment of the presiding officer are appropriate for the proper conduct of such meeting.
Section 1.11. Consent of Stockholders in Lieu of Meeting.
(a) Unless otherwise provided in the certificate of incorporation, any action required or permitted to be taken at an annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote of stockholders, if a consent or consents in writing, setting forth the action so taken, are (i) signed 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 at which all shares entitled to vote thereon were present and voted (but not less than the minimum number of votes otherwise prescribed by law) and (ii) delivered to the corporation by delivery to its registered office in this State, to its principal place of business or to an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded within 60 days of the earliest dated consent so delivered to the corporation.
(b) If a stockholder consent is to be given without a meeting of stockholders, and the Board has not fixed a record date for the purpose of determining the stockholders entitled to participate in such consent, then: (i) if the DGCL does not require action by the Board prior to the proposed stockholder action, the record date shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation at any of the locations referred to in Section 1.11(a)(ii); and (ii) if the DGCL requires action by the Board prior to the proposed stockholder action, the record date shall be at the close of business on the day on which the Board adopts the resolution taking such prior action. Every written consent to action without a meeting shall bear the date of signature of each stockholder who signs the consent, and shall be valid if timely delivered to the corporation at any of the locations referred to in Section 1.11(a)(ii).
(c) The Secretary shall give prompt notice of the taking of an action without a meeting by less than unanimous written consent to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of stockholders to take the action were delivered to the corporation in accordance with the DGCL.
ARTICLE II
BOARD OF DIRECTORS
Section 2.01. General Powers. Except as may otherwise be provided by law or by the certificate of incorporation, the affairs and business of the corporation shall be managed by or under the direction of the Board. The directors shall act only as a Board, and the individual directors shall have no power as such.
Section 2.02. Number and Term of Office. The Board shall consist of one director, who shall be a natural person, which number may be increased or decreased from time to time by the resolution of the Board. Each director (whenever elected) shall hold office until his or her
successor has been duly elected and qualified, or until his or her earlier death, resignation or removal.
Section 2.03. Election of Directors. Except as otherwise provided in Sections 2.13 and 2.14 of these bylaws, the directors shall be elected at each annual meeting of the stockholders.
Section 2.04. Regular Meetings. Regular meetings of the Board shall be held on such dates, and at such times and places as are determined from time to time by resolution of the Board.
Section 2.05. Special Meetings. Special meetings of the Board shall be held whenever called by the President or, in the event of his or her absence or disability, by any Vice President, or by a majority of the directors then in office, at such place, date and time as may be specified in the respective notices or waivers of notice of such meetings. Any business may be conducted at a special meeting.
Section 2.06. Notice of Meetings; Waiver of Notice.
(a) Notices of special meetings shall be given to each director, and notice of each resolution or other action affecting the date, time or place of one or more regular meetings shall be given to each director not present at the meeting adopting such resolution or other action, subject to Section 2.09 of these bylaws. Notices shall be given personally, or by telephone confirmed by facsimile or email dispatched promptly thereafter, or by facsimile or email confirmed by a writing delivered by a recognized overnight courier service, directed to each director at the address from time to time designated by such director to the Secretary. Each such notice and confirmation must be given (received in the case of personal service or delivery of written confirmation) at least 24 hours prior to the time of a special meeting, and at least five days prior to the initial regular meeting affected by such resolution or other action, as the case may be.
(b) A written waiver of notice of meeting signed by a director or a waiver by electronic transmission by a director, whether given before or after the meeting time stated in such notice, is deemed equivalent to notice. Attendance of a director at a meeting is a waiver of notice of such meeting, except when the director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business at the meeting on the ground that the meeting is not lawfully called or convened.
Section 2.07. Quorum; Voting. At all meetings of the Board, the presence of a majority of the total authorized number of directors shall constitute a quorum for the transaction of business. Except as otherwise required by law, the certificate of incorporation or these bylaws, the vote of a majority of the directors present at any meeting at which a quorum is present shall be the act of the Board.
Section 2.08. Action by Telephonic Communications. Members of the Board may participate in a meeting of the Board by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this provision shall constitute presence in person at such meeting.
Section 2.09. Adjournment. A majority of the directors present may adjourn any meeting of the Board to another date, time or place, whether or not a quorum is present. No notice need be given of any adjourned meeting unless (a) the date, time and place of the adjourned meeting are not announced at the time of adjournment, in which case notice conforming to the requirements of Section 2.06 of these bylaws applicable to special meetings shall be given to each director, or (b) the meeting is adjourned for more than 24 hours, in which case the notice referred to in clause (a) shall be given to those directors not present at the announcement of the date, time and place of the adjourned meeting.
Section 2.10. Action Without a Meeting. Any action required or permitted to be taken at any meeting of the Board may be taken without a meeting if all members of the Board consent thereto in writing or by electronic transmission, and such writing or writings or electronic transmissions are filed with the minutes of proceedings of the Board. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
Section 2.11. Regulations. To the extent consistent with applicable law, the certificate of incorporation and these bylaws, the Board may adopt such rules and regulations for the conduct of meetings of the Board and for the management of the affairs and business of the corporation as the Board may deem appropriate. The Board may elect from among its members a chairperson and one or more vice-chairpersons to preside over meetings and to perform such other duties as may be designated by the Board.
Section 2.12. Resignations of Directors. Any director may resign at any time by submitting an electronic transmission or by delivering a written notice of resignation, signed by such director, to the President or the Secretary. Such resignation shall take effect upon delivery unless the resignation specifies a later effective date or an effective date determined upon the happening of a specified event.
Section 2.13. Removal of Directors. Any director may be removed at any time, either for or without cause, upon the affirmative vote of the holders of a majority of the outstanding shares of stock of the corporation entitled to vote generally for the election of directors, acting at a stockholder meeting or by written consent in accordance with the DGCL and these bylaws.
Section 2.14. Vacancies and Newly Created Directorships. Any such vacancies or newly created directorships may be filled by a majority of directors then in office, though less than a quorum, or by a sole remaining director. A director chosen to fill a vacancy or a newly created directorship shall hold office until his or her successor has been elected and qualified or until his or her earlier death, resignation or removal.
Section 2.15. Compensation. The directors shall be entitled to compensation for their services to the extent approved by the stockholders at any regular or special meeting of the
stockholders. The Board may by resolution determine the expenses in the performance of such services for which a director is entitled to reimbursement.
Section 2.16. Reliance on Accounts and Reports, etc. A director, as such or as a member of any committee designated by the Board, shall in the performance of his or her duties be fully protected in relying in good faith upon the records of the corporation and upon information, opinions, reports or statements presented to the corporation by any of the corporation’s officers or employees, or committees designated by the Board, or by any other person as to the matters the member reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the corporation.
ARTICLE III
COMMITTEES
Section 3.01. Designation of Committees. The Board may designate one or more committees. Each committee shall consist of such number of directors as from time to time may be fixed by the Board, and shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the corporation to the extent delegated to such committee by the Board but no committee shall have any power or authority as to (a) approving or adopting, or recommending to the stockholders, any action or matter (other than the election or removal of directors) expressly required by the DGCL to be submitted to stockholders for approval, (b) adopting, amending or repealing any of these bylaws or (c) as may otherwise be excluded by law or by the certificate of incorporation, and no committee may delegate any of its power or authority to a subcommittee unless so authorized by the Board.
Section 3.02. Members and Alternate Members. The members of each committee and any alternate members shall be selected by the Board. The Board may provide that the members and alternate members serve at the pleasure of the Board. An alternate member may replace any absent or disqualified member at any meeting of the committee. An alternate member shall be given all notices of committee meetings, may attend any meeting of the committee, but may count towards a quorum and vote only if a member for whom such person is an alternate is absent or disqualified. Each member (and each alternate member) of any committee shall hold office only until the time he or she shall cease for any reason to be a director, or until his or her earlier death, resignation or removal.
Section 3.03. Committee Procedures. A quorum for each committee shall be a majority of its members, unless the committee has only one or two members, in which case a quorum shall be one member, or unless a greater quorum is established by the Board. The vote of a majority of the committee members present at a meeting at which a quorum is present shall be the act of the committee. Each committee shall keep regular minutes of its meetings and report to the Board when required. The Board may adopt other rules and regulations for the government of any committee not inconsistent with the provisions of these bylaws, and each committee may adopt its own rules and regulations of government, to the extent not inconsistent with these bylaws or rules and regulations adopted by the Board.
Section 3.04. Meetings and Actions of Committees. Meetings and actions of each committee shall be governed by, and held and taken in accordance with, the provisions of the following sections of these bylaws, with such bylaws being deemed to refer to the committee and its members in lieu of the Board and its members:
(a) Section 2.04 (to the extent relating to place and time of regular meetings);
(b) Section 2.05 (relating to special meetings);
(c) Section 2.06 (relating to notice and waiver of notice);
(d) Sections 2.08 and 2.10 (relating to telephonic communication and action without a meeting); and
(e) Section 2.09 (relating to adjournment and notice of adjournment).
Special meetings of committees may also be called by resolution of the Board.
Section 3.05. Resignations and Removals. Any member (and any alternate member) of any committee may resign from such position at any time by delivering a written notice of resignation, signed by such member, to the President or the Secretary. Unless otherwise specified therein, such resignation shall take effect upon delivery. Any member (and any alternate member) of any committee may be removed from such position by the Board at any time, either for or without cause.
Section 3.06. Vacancies. If a vacancy occurs in any committee for any reason, the remaining members (and any alternate members) may continue to act if a quorum is present. A committee vacancy may be filled only by the Board.
ARTICLE IV
OFFICERS
Section 4.01. Officers. The Board shall elect a President and a Secretary as officers of the corporation. The Board may also elect a Treasurer, one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers, and such other officers and agents as the Board may determine. In addition, the Board from time to time may delegate to any officer the power to appoint subordinate officers or agents and to prescribe their respective rights, terms of office, authorities and duties. Any action by an appointing officer may be superseded by action by the Board. Any number of offices may be held by the same person. No officer need be a director of the corporation.
Section 4.02. Election. The officers of the corporation elected by the Board shall serve at the pleasure of the Board. Officers and agents appointed pursuant to delegated authority as provided in Section 4.01 (or, in the case of agents, as provided in Section 4.06) shall hold their offices for such terms as may be determined from time to time by the appointing officer. Each
officer shall hold office until his or her successor has been elected or appointed and qualified, or until his or her earlier death, resignation or removal.
Section 4.03. Compensation. The salaries and other compensation of all officers and agents of the corporation shall be fixed by the Board or in the manner established by the Board.
Section 4.04. Removal and Resignation; Vacancies. Any officer may be removed for or without cause at any time by the Board. Any officer granted the power to appoint subordinate officers and agents as provided in Section 4.01 may remove any subordinate officer or agent appointed by such officer, for or without cause. Any officer or agent may resign at any time by delivering notice of resignation, either in writing signed by such officer or by electronic transmission, to the Board or the President. Unless otherwise specified therein, such resignation shall take effect upon delivery. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise, may be filled by the Board or by the officer, if any, who appointed the person formerly holding such office.
Section 4.05. Authority and Duties of Officers. An officer of the corporation shall have such authority and shall exercise such powers and perform such duties (a) as may be required by law, (b) to the extent not inconsistent with law, as are specified in these bylaws, (c) to the extent not inconsistent with law or these bylaws, as may be specified by resolution of the Board, and (d) to the extent not inconsistent with any of the foregoing, as may be specified by the appointing officer with respect to a subordinate officer appointed pursuant to delegated authority under Section 4.01.
Section 4.06. President. The President shall preside at all meetings of the stockholders and directors at which he or she is present, shall be the chief executive officer and the chief operating officer of the corporation, shall have general control and supervision of the policies and operations of the corporation and shall see that all orders and resolutions of the Board are carried into effect. He or she shall manage and administer the corporation’s business and affairs and shall also perform all duties and exercise all powers usually pertaining to the office of a chief executive officer and a chief operating officer of a corporation. He or she shall have the authority to sign, in the name and on behalf of the corporation, checks, orders, contracts, leases, notes, drafts and all other documents and instruments in connection with the business of the corporation. He or she shall have the authority to cause the employment or appointment of such employees or agents of the corporation as the conduct of the business of the corporation may require, to fix their compensation, and to remove or suspend any employee or any agent employed or appointed by any officer or to suspend any agent appointed by the Board. The President shall have the duties and powers of the Treasurer if no Treasurer is elected and shall have such other duties and powers as the Board may from time to time prescribe.
Section 4.07. Vice Presidents. If one or more Vice-Presidents have been elected, each Vice President shall perform such duties and exercise such powers as may be assigned to him or her from time to time by the Board or the President. In the event of absence or disability of the President, the duties of the President shall be performed, and his or her powers may be exercised, by such Vice President as shall be designated by the Board or, failing such designation, by the Vice President in order of seniority of election to that office.
Section 4.08. Secretary. Unless otherwise determined by the Board, the Secretary shall have the following powers and duties:
(a) The Secretary shall keep or cause to be kept a record of all the proceedings of the meetings of the stockholders, the Board and any committees thereof in books provided for that purpose.
(b) The Secretary shall cause all notices to be duly given in accordance with the provisions of these bylaws and as required by law.
(c) Whenever any committee shall be appointed pursuant to a resolution of the Board, the Secretary shall furnish a copy of such resolution to the members of such committee.
(d) The Secretary shall be the custodian of the records and of the seal of the corporation and cause such seal (or a facsimile thereof) to be affixed to all certificates representing shares of the corporation prior to the issuance thereof and to all documents and instruments that the Board or any officer of the corporation has determined should be executed under seal, may sign (together with any other authorized officer) any such document or instrument, and when the seal is so affixed he or she may attest the same.
(e) The Secretary shall properly maintain and file all books, reports, statements, certificates and all other documents and records required by law, the certificate of incorporation or these bylaws.
(f) The Secretary shall have charge of the stock books and ledgers of the corporation and shall cause the stock and transfer books to be kept in such manner as to show at any time the number of shares of stock of the corporation of each class issued and outstanding, the names (alphabetically arranged) and the addresses of the holders of record of such shares, the number of shares held by each holder and the date as of which each such holder became a holder of record.
(g) The Secretary shall sign (unless the Treasurer, an Assistant Treasurer or an Assistant Secretary shall have signed) certificates representing shares of the corporation the issuance of which shall have been authorized by the Board.
(h) The Secretary shall perform, in general, all duties incident to the office of secretary and such other duties as may be specified in these bylaws or as may be assigned to the Secretary from time to time by the Board or the President.
Section 4.09. Treasurer. Unless otherwise determined by the Board, the Treasurer, if there be one, shall be the chief financial officer of the corporation and shall have the following powers and duties:
(a) The Treasurer shall have charge and supervision over and be responsible for the moneys, securities, receipts and disbursements of the corporation, and shall keep or cause to be kept full and accurate records thereof.
(b) The Treasurer shall cause the moneys and other valuable effects of the corporation to be deposited in the name and to the credit of the corporation in such banks or trust companies or with such bankers or other depositaries as shall be determined by the Board or the President, or by such other officers of the corporation as may be authorized by the Board or the President to make such determinations.
(c) The Treasurer shall cause the moneys of the corporation to be disbursed by checks or drafts (signed by such officer or officers or such agent or agents of the corporation, and in such manner, as the Board or the President may determine from time to time) upon the authorized depositaries of the corporation and cause to be taken and preserved proper vouchers for all moneys disbursed.
(d) The Treasurer shall render to the Board or the President, whenever requested, a statement of the financial condition of the corporation and of the transactions of the corporation, and render a full financial report at the annual meeting of the stockholders, if called upon to do so.
(e) The Treasurer shall be empowered from time to time to require from all officers or agents of the corporation reports or statements giving such information as he or she may desire with respect to any and all financial transactions of the corporation.
(f) The Treasurer may sign (unless an Assistant Treasurer or the Secretary or an Assistant Secretary shall have signed) certificates representing shares of stock of the corporation the issuance of which shall have been authorized by the Board.
(g) The Treasurer shall perform, in general, all duties incident to the office of treasurer and such other duties as may be specified in these bylaws or as may be assigned to the Treasurer from time to time by the Board or the President.
ARTICLE V
CAPITAL STOCK
Section 5.01. Certificates of Stock. The shares of the corporation shall be represented by certificates. Every holder of stock in the corporation shall be entitled to have a certificate signed by the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, representing the number of shares registered in the name of such holder. Such certificate shall be in such form as the Board may determine, to the extent consistent with applicable law, the certificate of incorporation and these bylaws.
Section 5.02. Facsimile Signatures. Any or all signatures on the certificates referred to in Section 5.01 of these bylaws may be in facsimile form. If any officer who has signed, or whose facsimile signature has been placed upon, a certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he or she were such officer at the date of issue.
Section 5.03. Lost, Stolen or Destroyed Certificates. A new certificate may be issued in place of any certificate theretofore issued by the corporation alleged to have been lost, stolen or destroyed only upon delivery to the corporation of an affidavit of the owner or owners (or their legal representatives) of such certificate, setting forth such allegation, and a bond or other undertaking as may be satisfactory to a financial officer of the corporation designated by the Board to indemnify the corporation against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of any such new certificate.
Section 5.04. Transfer of Stock.
(a) Transfer of shares shall be made on the books of the corporation upon surrender to the corporation of a certificate for shares, duly endorsed or accompanied by appropriate evidence of succession, assignment or authority to transfer, and otherwise in compliance with applicable law. Subject to applicable law, the provisions of the certificate of incorporation and these bylaws, the Board may prescribe such additional rules and regulations as it may deem appropriate relating to the issue, transfer and registration of shares of the corporation.
(b) The corporation may enter into agreements with shareholders to restrict the transfer of stock of the corporation in any manner not prohibited by the DGCL.
Section 5.05. Registered Stockholders. Prior to due surrender of a certificate for registration of transfer, the corporation may treat the registered owner as the person exclusively entitled to receive dividends and other distributions, to vote, to receive notice and otherwise to exercise all the rights and powers of the owner of the shares represented by such certificate, and the corporation shall not be bound to recognize any equitable or legal claim to or interest in such shares on the part of any other person, whether or not the corporation shall have notice of such claim or interests. If a transfer of shares is made for collateral security, and not absolutely, this fact shall be so expressed in the entry of the transfer if, when the certificates are presented to the corporation for transfer, both the transferor and transferee request the corporation to do so.
ARTICLE VI
INDEMNIFICATION
Section 6.01. Indemnification.
(a) In General. The corporation shall indemnify, to the full extent permitted by the DGCL and other applicable law, any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (each, a “proceeding”) by reason of the fact that (x) such person is or was serving as a director or officer of the corporation, or (y) such person, while serving as a director or officer of the corporation, is or was serving or has agreed to serve at the request of the corporation as a director, officer, employee, manager or agent of another corporation, partnership, joint venture, trust or other enterprise or (z) such person is or was
serving at the request of the corporation as a director, officer or manager of another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted by such person in such capacity, and who satisfies the applicable standard of conduct set forth in the DGCL or other applicable law:
(i) in a proceeding other than a proceeding by or in the right of the corporation, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person or on such person’s behalf in connection with such proceeding and any appeal therefrom, or
(ii) in a proceeding by or in the right of the corporation to procure a judgment in its favor, against expenses (including attorneys’ fees) actually and reasonably incurred by such person or on such person’s behalf in connection with the defense or settlement of such proceeding and any appeal therefrom.
(b) Indemnification in Respect of Successful Defense. To the extent that a present or former director or officer of the corporation has been successful on the merits or otherwise in defense of any proceeding referred to in Section 6.01(a) or in defense of any claim, issue or matter therein, such person shall be indemnified by the corporation against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.
(c) Indemnification in Respect of Proceedings Instituted by Indemnitee. Section 6.01(a) does not require the corporation to indemnify a present or former director or officer of the corporation in respect of a proceeding (or part thereof) instituted by such person on his or her own behalf, unless such proceeding (or part thereof) has been authorized by the Board or the indemnification requested is pursuant to the last sentence of Section 6.03 of these bylaws.
Section 6.02. Advance of Expenses. The corporation shall advance all expenses (including reasonable attorneys’ fees) incurred by a present or former director or officer in defending any proceeding prior to the final disposition of such proceeding upon written request of such person and delivery of an undertaking by such person to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation. The corporation may authorize any counsel for the corporation to represent (subject to applicable conflict of interest considerations) such present or former director or officer in any proceeding, whether or not the corporation is a party to such proceeding.
Section 6.03. Procedure for Indemnification. Any indemnification under Section 6.01 of these bylaws or any advance of expenses under Section 6.02 of these bylaws shall be made only against a written request therefor (together with supporting documentation) submitted by or on behalf of the person seeking indemnification or advance. Indemnification may be sought by a person under Section 6.01 of these bylaws in respect of a proceeding only to the extent that both the liabilities for which indemnification is sought and all portions of the proceeding relevant to the determination of whether the person has satisfied any appropriate standard of conduct have become final. A person seeking indemnification or advance of expenses may seek to enforce such person’s rights to indemnification or advance of expenses (as the case may be) in the Delaware Court of Chancery to the extent all or any portion of a requested indemnification has
not been granted within 90 days of, or to the extent all or any portion of a requested advance of expenses has not been granted within 20 days of, the submission of such request. All expenses (including reasonable attorneys’ fees) incurred by such person in connection with successfully establishing such person’s right to indemnification or advancement of expenses under this Article, in whole or in part, shall also be indemnified by the corporation.
Section 6.04. Burden of Proof.
(a) In any proceeding brought to enforce the right of a person to receive indemnification to which such person is entitled under Section 6.01 of these bylaws, the corporation has the burden of demonstrating that the standard of conduct applicable under the DGCL or other applicable law was not met. A prior determination by the corporation (including its Board or any committee thereof, its independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct does not itself constitute evidence that the claimant has not met the applicable standard of conduct.
(b) In any proceeding brought to enforce a claim for advances to which a person is entitled under Section 6.02 of these bylaws, the person seeking an advance need only show that he or she has satisfied the requirements expressly set forth in Section 6.02 of these bylaws.
Section 6.05. Contract Right; Non-Exclusivity; Survival.
(a) The rights to indemnification and advancement of expenses provided by this Article VI shall be deemed to be separate contract rights between the corporation and each director and officer who serves in any such capacity at any time while these provisions as well as the relevant provisions of the DGCL are in effect, and no repeal or modification of any of these provisions or any relevant provisions of the DGCL shall adversely affect any right or obligation of such director or officer existing at the time of such repeal or modification with respect to any state of facts then or previously existing or any proceeding previously or thereafter brought or threatened based in whole or in part upon any such state of facts. Such “contract rights” may not be modified retroactively as to any present or former director or officer without the consent of such director or officer.
(b) The rights to indemnification and advancement of expenses provided by this Article VI shall not be deemed exclusive of any other indemnification or advancement of expenses to which a present or former director or officer of the corporation seeking indemnification or advancement of expenses may be entitled by any agreement, vote of stockholders or disinterested directors, or otherwise.
(c) The rights to indemnification and advancement of expenses provided by this Article VI to any present or former director or officer of the corporation shall inure to the benefit of the heirs, executors and administrators of such person.
Section 6.06. Insurance. The corporation may purchase and maintain insurance on behalf of any person who is or was or has agreed to become a director or officer of the corporation, or is or was serving at the request of the corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person or on such person’s behalf in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability under the provisions of this Article.
Section 6.07. Employees and Agents. The Board, or any officer authorized by the Board generally or in the specific case to make indemnification decisions, may cause the corporation to indemnify any present or former employee or agent of the corporation in such manner and for such liabilities as the Board may determine, up to the fullest extent permitted by the DGCL and other applicable law.
Section 6.08. Interpretation; Severability. Terms defined in Sections 145(h) or (i) of the DGCL have the meanings set forth in such sections when used in this Article VI. If this Article or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the corporation shall nevertheless indemnify each director or officer of the corporation as to costs, charges and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative, including an action by or in the right of the corporation, to the fullest extent permitted by any applicable portion of this Article that shall not have been invalidated and to the fullest extent permitted by applicable law.
ARTICLE VII
OFFICES
Section 7.01. Registered Office. The registered office of the corporation in the State of Delaware shall be located at the location provided in the corporation’s certificate of incorporation.
Section 7.02. Other Offices. The corporation may maintain offices or places of business at such other locations within or without the State of Delaware as the Board may from time to time determine or as the business of the corporation may require.
ARTICLE VIII
GENERAL PROVISIONS
Section 8.01. Dividends.
(a) Subject to any applicable provisions of law and the certificate of incorporation, dividends upon the shares of the corporation may be declared by the Board at any regular or special meeting of the Board and any such dividend may be paid in cash, property, or shares of the corporation’s stock.
(b) A member of the Board, or a member of any committee designated by the Board shall be fully protected in relying in good faith upon the records of the corporation and upon such information, opinions, reports or statements presented to the corporation by any of its
officers or employees, or committees of the Board, or by any other person as to matters the director reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the corporation, as to the value and amount of the assets, liabilities and/or net profits of the corporation, or any other facts pertinent to the existence and amount of surplus or other funds from which dividends might properly be declared and paid.
Section 8.02. Reserves. There may be set apart out of any funds of the corporation available for dividends such sum or sums as the Board from time to time may determine proper as a reserve or reserves for meeting contingencies, equalizing dividends, repairing or maintaining any property of the corporation or for such other purpose or purposes as the Board may determine conducive to the interest of the corporation, and the Board may similarly modify or abolish any such reserve.
Section 8.03. Execution of Instruments. Except as otherwise required by law or the certificate of incorporation, the Board or any officer of the corporation authorized by the Board may authorize any other officer or agent of the corporation to enter into any contract or execute and deliver any instrument in the name and on behalf of the corporation. Any such authorization must be in writing or by electronic transmission and may be general or limited to specific contracts or instruments.
Section 8.04. Voting as Stockholder. Unless otherwise determined by resolution of the Board, the President or any Vice President shall have full power and authority on behalf of the corporation to attend any meeting of stockholders of any corporation in which the corporation may hold stock, and to act, vote (or execute proxies to vote) and exercise in person or by proxy all other rights, powers and privileges incident to the ownership of such stock at any such meeting, or through action without a meeting. The Board may by resolution from time to time confer such power and authority (in general or confined to specific instances) upon any other person or persons.
Section 8.05. Fiscal Year. The fiscal year of the corporation shall commence on the first day of January of each year (except for the corporation’s first fiscal year which shall commence on the date of incorporation) and shall terminate in each case on December 31.
Section 8.06. Seal. The seal of the corporation shall be circular in form and shall contain the name of the corporation, the year of its incorporation and the words “Corporate Seal” and “Delaware”. The form of such seal shall be subject to alteration by the Board. The seal may be used by causing it or a facsimile thereof to be impressed, affixed or reproduced, or may be used in any other lawful manner.
Section 8.07. Books and Records; Inspection. Except to the extent otherwise required by law, the books and records of the corporation shall be kept at such place or places within or without the State of Delaware as may be determined from time to time by the Board.
Section 8.08. Electronic Transmission. “Electronic transmission”, as used in these bylaws, means any form of communication, not directly involving the physical transmission of
paper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.
ARTICLE IX
AMENDMENT OF BYLAWS
Section 9.01. Amendment. These bylaws may be amended, altered or repealed at any regular or special meeting of the stockholders if, in the case of such special meeting only, notice of such amendment, alteration or repeal is contained in the notice or waiver of notice of such meeting.
ARTICLE X
CONSTRUCTION
Section 10.01. Construction. In the event of any conflict between the provisions of these bylaws as in effect from time to time and the provisions of the certificate of incorporation of the corporation as in effect from time to time, the provisions of such certificate of incorporation shall be controlling.
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STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 02/08/2001 010064656 - 3354314 |
CERTIFICATE OF INCORPORATION
OF
AMERICOM FINANCIAL SERVICES, INC.
The undersigned, in order to form a corporation for the purpose hereinafter stated, under and pursuant to the provisions of the General Corporation Law of the State of Delaware, does hereby certify as follows:
ARTICLE I
The name of the Corporation is: Americom Financial Services, Inc.
ARTICLE II
The registered office of the Corporation in the State of Delaware is located at 2711 Centerville Road, Suite 400, in the city of Wilmington, 19808, County of New Castle. The name of the Corporation's registered agent at such address is The Corporation Service Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.
ARTICLE IV
The total number of shares of stock which the Corporation shall have authority to issue is one thousand (1,000) shares of common stock, par value one cent ($0.01) per share.
ARTICLE V
Election of directors need not be by ballot unless the Bylaws of the Corporation shall so provide.
ARTICLE VI
In furtherance and not in limitation of the power conferred upon the Board of Directors by law, the Board of Directors shall have the power to make, adopt, alter, amend and repeal, from time to time, the Bylaws of the Corporation; subject to the right of the Stockholders entitled to vote with respect thereto to alter and repeal Bylaws made by the Board of Directors.
ARTICLE VII
To the fullest extent permitted by the General Corporation Law of the State of Delaware as the same now exists or may hereafter be amended, a director of the Corporation shall not be liable to the Corporation or its Stockholders for monetary damages for breach of fiduciary conduct as a director.
ARTICLE VII
The incorporator of the Corporation is Lisa J. Falenski whose mailing address is DOEPKEN KEEVICAN & WEISS PROFESSIONAL CORPORATION, 58th Floor, USX Tower, 600 Grant Street, Pittsburgh, Pennsylvania 15219.
IN WITNESS WHEREOF, the undersigned has hereunder set her hand and seal this 8th day of February, 2001.
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/s/ Lisa J. Falenski |
Lisa J. Falenski, Sole Incorporator |
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
AMERICOM FINANCIAL SERVICES, INC.
********
Americom Financial Services, Inc., a corporation organized and existing by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That, by consent of all of the Directors of the Corporation, the following resolution was duly adopted setting forth a proposed amendment of the Certificate of Incorporation of the Corporation, declaring said amendment to be advisable:
VOTED: That, in the judgment of tire Board of Directors of the Corporation, it is advisable to amend the Certificate of Incorporation of the Corporation, and to so recommend to the sole stockholder of the Corporation, so that, effective upon the filing of a Certificate of Amendment of the Certificate of Incorporation of the Corporation, the name of the Corporation shall be changed from Americom Financial Services, Inc. to Old Mutual Business Services, Inc.
SECOND: That in lieu of a meeting and vote of stockholders, the sole stockholder has given written consent to said amendment in accordance with the provisions of Section 228 of the General Corporation Law of the State of Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance with the applicable provisions of Sections 242 and 228 of the General Corporation Law of the State of Delaware.
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STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 05:00 PH 09/25/2001 0104 762 78 - 3354314 |
FOURTH: That the Certificate of Incorporation of the Corporation shall be further amended by changing the Article thereof numbered “FIRST" so that, as amended, said Article shall be and read as follows:
“FIRST: The name of the corporation is Old Mutual Business Services, Inc ”
IN WITNESS WHEREOF, said Americom Financial Services, Inc. has caused this certificate to be signed by J CLIFFORD its TREASURER , this of 11 September, 2001.
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Americom Financial Services, Inc. |
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| By: | /s/ John p. Clifford |
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State of Delaware Secretary of State Division of Corporations Delivered 11:09 AM 04/11/2011 FILED 11:009 AM 04/11/2011 SRV 110399735 - 3354314 FILE |
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
OLD MUTUAL BUSINESS SERVICES, INC.
*****
Old Mutual Business Services, Inc., a corporation organized and existing by virtue of the General Corporation Law of the State of Delaware (the “Corporation”),
DOES HEREBY CERTIFY:
FIRST: That, by consent of all of the Directors of the Corporation, the following resolution was duly adopted setting forth a proposed amendment of the Certificate of Incorporation of the Corporation, declaring said amendment to be advisable:
VOTED: That, in the judgment of the Board of Directors of theCorporation, it is advisable to amend the Certificate of Incorporation of the Corporation, and to so recommend to the sole stockholder of the Corporation, so that, effective on the later of: (i) the date the Certificate of Amendment of the Certificate of Incorporation of the Corporation is filed with the Secretary of State; or (ii) immediately after closing occurring pursuant to the First Amended and Restated Stock Purchase Agreement dated February 17, 2011 between OM Group (UK) Limited and Harbinger OM, LLC, but no later than 90 days after the Certificate of Amendment of Certificate of Incorporation is filed with the Secretary of State, the name of the Corporation shall be changed from Old Mutual Business Services, Inc. to Fidelity & Guaranty Life Business Services, Inc.
SECOND: That in lieu of a meeting and vote of stockholders, the sole stockholder has given written consent to said amendment in accordance with the provisions of Section 228 of the General Corporation Law of the State of Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance with the applicable provisions of Sections 242 and 228 of the General Corporation Law of the State of Delaware.
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CUST ID: 0002605488
WORK ORDER: 0003822068
DATE: 06-20-2011 12:31 PM
AMT. PAID: $30.00 |
FOURTH: That the Certificate of Incorporation of the Corporation shall be amended by changing the Article thereof numbered “FIRST’ so that, as amended, said Article shall be and read as follows:
“FIRST: The name of the corporation is: Fidelity & Guaranty Life Business Services, Inc.”
IN WITNESS WHEREOF, said Old Mutual Business Services, Inc. has caused this certificate to be signed by Eric L.Marhoun, its Senior Vice President, General Counsel and Secretary this 6th day of April , 2011.
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Old Mutual Business Services, Inc. |
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By: | /s/ Eric L. Marhoun |
Eric L. Marhoun, Senior Vice President, General Counsel and Secretary |
BYLAWS
OF
AMERICOM FINANCIAL SERVICES, INC.
(A DELAWARE CORPORATION)
ADOPTED: February 8, 2001
AMERICOM FINANCIAL SERVICES, INC.
(a Delaware Corporation)
BYLAWS
I. GENERAL
MEETINGS OF STOCKHOLDERS AND RECORD DATES
1.ANNUAL MEETING. An annual meeting of Stockholders for the election of Directors and the transaction of such other business as may properly come before the meeting , shall be held on such day and at such hour as the Board of Directors may designate. If the day fixed for the meeting is a legal holiday, the meeting shall be held at the same hour on the next succeeding full business day which is not a legal holiday.
2.SPECIAL MEETINGS. Special meetings of Stockholders may be called at any time by the President, the Board of Directors, or Stockholders entitled to cast at least one-fifth of the votes which all Stockholders are entitled to cast at the particular meeting. Upon written request of any person or persons who shall have duly called a special meeting, it shall be the duty of the Secretary to fix the date and hour of the meeting, to be held not more than sixty days after the receipt of the request.
3.PLACE. Each annual or special meeting of Shareholders shall be held at the principal office of the Corporation or at such other place as the Board of Directors may designate.
4.NOTICE. Written notice stating the place, day, and hour of each meeting of Stockholders and, in the case of special meetings, the general nature of the business to be transacted, shall be mailed by the Secretary at least ten days before the meeting to each Stockholder of record entitled to vote at the meeting to his address appearing on the books of the Corporation or supplied by him to the Corporation for the purpose of notice.
5.QUORUM. The presence, in person or by proxy, of Stockholders entitled to cast at least a majority of the votes which all Stockholders are entitled to cast on a particular matter shall constitute a quorum for the purpose of considering such matter at a meeting of Stockholders. If a quorum is not present in person or by proxy, those present may adjourn from time to time to reconvene at such time and place as they may determine. In case of a meeting called for the election of Directors, those present, in person or by proxy, at the second of such adjourned meetings, although less than a quorum for any other purpose, shall nevertheless constitute a quorum for the purpose of electing Directors at such second adjourned meeting.
6.VOTING. Every Stockholder entitled to vote at any Stockholders' meeting shall be entitled, unless otherwise provided herein or by law, to one vote for every share of capital stock standing in his name on the books of the Corporation. Every Stockholder entitled to vote may authorize another person or persons to act for him by proxy. All proxies shall be in writing and filed with the Secretary. Unless otherwise provided by law, all questions shall be decided by the vote of 51 % of the outstanding common stock represented at any meeting.
7.RECORD DATES. The Board of Directors may fix a time not more than fifty days prior to the date of any meeting of Stockholders, or the date fixed for the payment of any dividend or distribution, or the date for the allotment of rights, or the date when any change or conversion or exchange of shares will be made or go into effect, as a record date for the determination of the Stockholders entitled to notice of or to vote at any such meeting, or to receive payment of any such dividend or distribution, or to receive any such allotment of rights, or to exercise the rights in respect to any such change, conversion or exchange of shares. In such case, only such Stockholders as shall be Stockholders of record at the close of business on the date so fixed shall be entitled to notice of or to vote at such meeting, or to receive payment of such dividend or distribution, or to receive such allotment of rights, or to exercise such rights in respect to any change, conversion or exchange of shares, as the case may be, notwithstanding any transfer of any shares on the books of the Corporation after the record date fixed as aforesaid.
8.CONSENT ACTION. Any action which may be taken at a meeting of the Stockholders may be taken without a meeting, if a consent or consents in writing, setting forth the action so taken, shall be signed by a majority of the Stockholders, and shall be filed with the Secretary of the Corporation.
II. DIRECTORS
1.NUMBER AND TERM. The Board of Directors shall consist of at least one Director. The Board of Directors and the stockholders shall have power to increase or decrease the number of Directors and each Director shall be elected at the annual meeting of the Stockholders following his election, and until his successor is elected and qualified.
2.VACANCIES. Vacancies in the Board of Directors, including vacancies resulting from an increase in the number of Directors, may be filled by a majority of the remaining Directors, though less than a quorum, by election of a person to serve until the next annual meeting of Stockholders.
3.ANNUAL MEETING. An annual meeting of the Board of Directors shall be held each year as soon as practicable after the annual meeting of Stockholders, at the place where such meeting of Stockholders was held or at such other place as the Board may determine, for the purposes of organization, election or appointment of officers and the transaction of such other business as shall come before the meeting. No notice of the meeting need be given.
4.REGULAR MEETINGS. Regular meetings of the Board of Directors may be held without notice at such times and at such places in Delaware or elsewhere as the Board may determine.
5.SPECIAL MEETINGS. Special meetings of the Board of Directors may be called by the President or a majority of the Directors in office, to be held at such time (as will permit the giving of notice as provided in this section) and at such place as may be designated by the person or persons calling the meeting. Notice of the place, day and hour of each special meeting shall be given to each Director by the Secretary by written notice mailed on or before the third full business day before the meeting or by notice received personally or by other means at least 24 hours before the meeting.
6.QUORUM. A majority of the Directors in office shall constitute a quorum for the transaction of business but less than a quorum may adjourn from time to time to reconvene at such time and place as they may determine.
7.COMPENSATION. Directors shall receive such compensation for their services as shall be determined by the Board of Directors.
8.CONSENT ACTION. Any action which may be taken at a meeting of the Board of Directors may be taken without a meeting, if a consent or consents in writing, setting forth the action so taken, shall be signed by all of the Directors, and shall be filed with the Secretary of the Corporation.
9.DUTIES OF DIRECTORS AND RELIANCE UPON THIRD PARTIES. Each Director shall stand in a fiduciary relation to the Corporation and shall perform his or her duties as a Director, including his or her duties as a member of any committee of the Board upon which he or she may serve, in good faith, in a manner he or she reasonably believes to be in the best interest of the corporation, and with such care, including reasonable inquiry, skill and diligence, as a person of ordinary prudence would use under similar circumstances.In performing such duties, each Director shall be entitled to rely in good faith on information, opinions, reports or statements, including financial statements and other financial data, in each case prepared or presented by any of the following: (i) officers or employees of the Corporation who the Director reasonably believes to be reliable and competent in the matters presented; (ii) counsel, public accountants or other persons as to which matters the Director reasonably believes to be within the professional or expert competence of such person; and (iii) a committee of the Board of Directors upon which he or she does not serve, duly designated in accordance with law, as to matters within its designated authority, which committee the Director reasonably believes to merit confidence. No Director of the Corporation shall be considered to be acting in good faith if he or she has knowledge concerning the matter in question that would cause such reliance to be unwarranted.
10.CONSIDERATION OF FACTS. In discharging the duties of their respective positions, the Board of Directors, committees of the Board of Directors and individual Directors may, in considering the best interest of the Corporation, consider the effects of any such action upon employees, upon suppliers and customers of the Corporation and upon communities in which offices or other establishments of the Corporation are located, and all other pertinent factors.
11.LIMITATION OF LIABILITY. No Director of the Corporation shall be personally liable for monetary damages as such for any action taken, or any failure to take any action, unless (i) the Director has breached or failed to perform the duties of his office and (ii) the breach or failure to perform constitutes self-dealing, willful misconduct or recklessness; provided, however, that the foregoing provisions of this Section 11 shall not apply to (i) the responsibility or liability of a Director pursuant to any criminal statute; or (ii) the liability of a Director for the payment of taxes pursuant to local, state or federal law. Neither the amendment nor the repeal ofthis Section 11 shall eliminate or reduce the effect of this Section 11 with respect to any matter occurring, or any cause of action, suit or claim that but for this Section 11 would accrue or arise, prior to such amendment or repeal.
III. OFFICERS
1.OFFICERS. The Board of Directors at any time may elect a Chairman, President, one or more Vice Presidents, a Treasurer and a Secretary, may designate any one or more Vice Presidents as Executive Vice Presidents, First Vice President, Vice President-Sales, Vice President-Operations or otherwise, and may elect or appoint such additional officers and agents as the Board may deem advisable. Any two or more offices may be held by the same person.
2.TERM. Each officer and each agent shall hold office until his successor is elected or appointed and qualified or until his death, resignation or removal by the Board of Decors.
3.AUTHORITY, DUTIES AND COMPENSATION. All elected or appointed officers and agents shall have such authority and perform such duties as may be provided in the Bylaws or as may be determined by the Board of Directors, Chairman or the President. They shall receive such compensation for their services as may be determined by the Board of Directors or in a manner approved by it. Notwithstanding any other provisions of these Bylaws, the Board shall have power from time to time by resolution to prescribe by what officers or agents particular documents or instruments or particular classes of documents or instruments shall be signed, countersigned, endorsed or executed; provided, however, that any person, firm or corporation shall be entitled to accept and to act upon any document or instrument signed, countersigned, endorsed or executed by officers or agents of the Corporation pursuant to the provisions of these Bylaws unless prior to receipt of such document or instrument such person, firm or corporation has been furnished with a certified copy of a resolution of the Board prescribing a different signature, countersignature, endorsement or execution.
4.CHAIRMAN. The Chairman shall preside at all meetings of the Stockholders and of the Board of Directors. The Chairman shall perform such duties as may be assigned to him by the Board of Directors.
5.PRESIDENT. The President shall be the chief executive officer of the Corporation. The President shall sign all certificates of stock of the Corporation or cause them to be signed in facsimile or otherwise as permitted by law; and shall perform such other duties as from time to time may be assigned to him by the Chairman or the Board of Directors.
6.VICE PRESIDENTS. In the absence of the President or in the event of his death, inability or refusal to act, the Vice President (or in the event that there be more than one Vice President, the Vice Presidents, in the order designated at the time of their election, or in the absence of any designation, then in the order of their election) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. Any Vice President may sign, with the Secretary or Assistant Secretary, certificates for shares of the Corporation; and shall perform such other duties as from time to time may be assigned to him by the President or the Board of Directors.
7.TREASURER. The Treasurer shall keep and account for all moneys, funds and property of the Corporation which shall come into his hands, and shall render such accounts
and present such statements to the Board of Directors as may be required of him. Unless the Board shall prescribe otherwise, the Treasurer shall deposit all funds of the Corporation which may come into his hands in such bank or banks as the Board may designate and in accounts in the name of the Corporation, shall endorse for collection bills, notes, checks and other negotiable instruments received by the Corporation, may sign all bills, notes, checks and other negotiable instruments of the Corporation or cause them to be signed in facsimile or otherwise as the Board may determine, and shall pay out money as the business of the Corporation may determine, and shall pay out money as the business of the Corporation may require, taking proper vouchers therefor. In the absence or disability of the Treasurer, an Assistant Treasurer shall have the authority and perform the duties of the Treasurer.
8.SECRETARY. The Secretary shall give or cause to be given all required notices of meetings of Shareholders and of the Board of Directors, shall attend such meetings when practicable, shall record and keep the minutes and all other proceedings thereof, shall attest such records after every meeting by his signature, shall safely keep all documents and papers which shall come into his possession, shall truly keep the books and accounts of the Corporation appertaining to his office, shall countersign all certificates of stock of the corporation or cause them to be countersigned in facsimile or otherwise as permitted by law, may sign all bills, notes, checks and other negotiable instruments of the Corporation or cause them to be signed in facsimile or otherwise as the Board may determine, and shall present statements thereof when required by the Board. In the absence or disability of the Secretary, an Assistant Secretary shall have the authority and perform the duties of the Secretary.
IV. CORPORATE SEAL
1.CORPORATE SEAL. A corporate seal shall be prepared and shall be kept in the custody of the Secretary of the Corporation. The seal or a facsimile thereof may be impressed, affixed or reproduced, and attested by the Secretary or an Assistant Secretary, for the authentication of documents or instruments requiring the seal and bearing the signature of a duly authorized officer or agent.
V. INDEMNIFICATION
1.DIRECTORS, OFFICERS, EMPLOYEES AND REPRESENTATIVES. The Corporation shall indemnify each Director and officer, and it may indemnify each employee and representative, of the Corporation to the fullest extent permitted by Law, against all liabilities and expenses, including without limitation, judgments, fines, penalties, attorney's fees and amounts paid in settlement, imposed upon or reasonably incurred by him in connection with or resulting from any threatened, pending or completed claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (whether brought by or in the right of the Corporation or otherwise), in which he may become involved as a party or otherwise by reason of his being or having been such Director, officer, employee or representative or by reason of his serving or having served at the request of the Corporation as a director, officer, employee or other representative of another corporation, partnership, joint venture, trust or other enterprise; provided, however, that the foregoing indemnification provisions shall not apply to a threatened, pending or completed claim, action, suit or proceeding which is initiated by him.
2.DETERMINATION OF RIGHT OF INDEMNIFICATION. The indemnification provided or permitted by subsection (a) shall apply (i) whether or not the Director, officer, employee or representative continues to be such at the time such liabilities or expenses are imposed or incurred, whether the act or failure to act which is the subject of such claim, action, suit or proceeding occurred before or after the adoption of this bylaw, and whether or not the indemnified liability or expenses arose or arise from a threatened, pending or completed claim, action, suit or proceeding by or in the right of the Corporation, and (ii) both to acts or omissions in his official capacity and to acts or omissions in another capacity while holding such office.
3.PAYMENT OF EXPENSES. Expenses incurred by a Director, officer, employee or representative of the Corporation in defending a civil or criminal action, suit or proceeding may be paid by the Corporation in advance of the final disposition thereofupon receipt ofan undertaking by or on behalf of such person to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation.
4.BASIS OF RIGHTS. OTHER RIGHTS. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article V shall not be exclusive of any other rights to which persons seeking indemnification or advancement of expenses may be entitled under any provision of law, agreement, vote of Shareholders or Directors or otherwise, both as to an act or omission in his official capacity and as to an act or omission in another capacity while holding such office, and shall inure to the benefits of their heirs, executors, administrators and other legal representatives of such person.
5.INSURANCE. The Corporation may purchase and maintain insurance on behalf of any person who is or was a Director, officer, employee or representative of the Corporation or who is or was serving at the request of the Corporation as a Director, officer, employee or other representative of another corporation, partnership, joint venture, trust or other enterprise, for any liability asserted against such Director, officer, employee or representative and incurred by him in any capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the laws of the State of Delaware.
VI. REMOTE PARTICIPATION IN MEETINGS: WAIVER OF NOTICE
1.REMOTE PARTICIPATION ALLOWED. At any meeting of the Directors or Stockholders, one or more Directors or Stockholders, as the case may be, may participate in a meeting of the Board, of a committee of the Board or of the Stockholders by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other.
2.WAIVER OF NOTICE. Whenever any written notice is required to be given under the provisions of the Delaware Corporation Law or these Bylaws, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein shall be deemed equivalent to the giving of such notice.
VII. FISCAL YEAR AND ANNUAL REPORT
1.FISCAL YEAR. The fiscal year of the Corporation shall end each year on December 31st.
2.ANNUAL REPORT. The Board of Directors shall not at any time be required to cause to be sent to the Stockholders annual or interim financial statements of the Corporation.
3.AUDIT OF ANNUAL REPORT. In the event the Board of Directors shall furnish financial statements to the Stockholders for any reason whatsoever, such financial statements need not be examined in accordance with generally accepted auditing standards by an independent certified public accountant of any state or territory of the United States or by a firm thereof, and need not be accompanied by such accountant's or firm's opinion as to the fairness ofthe presentation ofthe financial statements.
VIII. SHARE TRANSFERS AN D RECORDS
1.SHARE TRANSFERS AND RECORDS. The Board of Directors may appoint a transfer agent or transfer agents and a registrar or registrars to make and record all transfers of shares of stock of the Corporation of any class. Each transfer agent shall prepare transfer records showing transfers made through the office of such agent. A share register shall be kept at the registered office of the Corporation. Such share register shall constitute books of the Corporation with respect to shares of stock of any class and the holders of record thereof, provided that the Board of Directors may designate instead as the books of the Corporation for this purpose a share register kept at the office of a transfer agent or registrar. If the Board of Directors shall have appointed a transfer agent or transfer agents and a registrar or registrars for stock of any class, all transfers of stock of such class shall be made only by such transfer agent or transfer agents at their offices and shall be recorded in their books and in the books of the registrar or registrars. In case of loss, destruction or theft of a certificate of stock, another may be issued in lieu thereof in such manner and upon such terms as the Board of Directors shall authorize.
2.RESTRICTIONS UPON TRANSFER AND LEGEND. Each certificate issued for shares of stock of the Corporation shall be endorsed as follows:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS. SUCH SHARES OF STOCK MAY NOT BE TRANSFERRED EXCEPT (1) PURSUANT TO A REGISTRATION STATEMENT EFFECTIVE UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR (2) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND ANY APPLICABLE STATE SECURITIES LAW.
IX. AMENDMENTS
1.AMENDMENTS. The Bylaws of the Corporation may be altered, amended, added to or repealed by action of the Board of Directors.
Exhibit 3.9
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 01/25/2001
010041313 - 3348610
CERTIFICATE OF INCORPORATION
OF
OLD MUTUAL U.S. HOLDINGS, INC.
The undersigned, in order to form a corporation for the purpose hereinafter stated, under and pursuant to the provisions of the General Corporation Law of the State of Delaware, does hereby certify as follows:
ARTICLE I
The name of the Corporation is; Old Mutual U.S. Holdings, Inc.
ARTICLE II
The registered office of the Corporation in the State of Delaware is located at 2711 Centerville Road, Suite 400, in the City of Wilmington, 19808, County of New Castle. The name of the Corporation's registered agent at such address is Corporation Service Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.
ARTICLE IV
The total number of shares of stock which the Corporation shall have authority to issue is one thousand (1,000) shares of common stock, par value one cent ($0.01) per share.
ARTICLE V
Election of directors need not be by ballot unless the Bylaws of the Corporation shall so provide.
ARTICLE VI
In furtherance and not in limitation of the power conferred upon the Board of Directors by law, the Board of Directors shall have the power to make, adopt, alter, amend and repeal, from time to time, the Bylaws of the Corporation; subject to the right of the Stockholders entitled to vote with respect thereto to alter and repeal Bylaws made by the Board of Directors.
ARTICLE VII
To the fullest extent permitted by the General Corporation Law of the State of Delaware as the same now exists or may hereafter be amended, a director of the Corporation shall not be liable to the Corporation or its Stockholders for monetary damages for breach of fiduciary conduct as a director.
ARTICLE VIII
The incorporator of the Corporation is Lisa L Falenski whose mailing address is DOEPKEN KEEVICAN & WEISS PROFESSIONAL CORPORATION, 58th Floor, USX Tower, 600 Grant Street, Pittsburgh, Pennsylvania 15219.
IN WITNESS WHEREOF, the undersigned has hereunder set her hand and seal this 25th day of January, 2001.
| | |
| /s/ Lisa J. Falenski |
| Lisa J. Falenski, Sole Incorporator |
OLD MUTUAL U.S. HOLDINGS, INC.
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
(Pursuant to Section 242 of the Delaware General Corporation Law)
OLD MUTUAL U.S. HOLDINGS, INC., a corporation organized'and existing under and by virtue of the General Corporation Law of the State of Delaware ("the Corporation"), DOES HEREBY CERTIFY;
FIRST: That the Board of Directors of the Corporation by Unanimous Written Consent dated as of March 1,2001 adopted resolutions authorizing a proposed amendment to the Certificate of Incorporation of the Corporation. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that the Certificate of Incorporation of the Corporation be amended by changing the Article thereof numbered T so that as amended said Article shall be and read as follows;
“ARTICLE I
The name of the Corporation is;
OLD MUTUAL U.S. LIFE HOLDINGS, INC”
SECOND: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
THIRD: That said amendment shall be effective on the 31!l day of March, 2001 at 5:00 pin. (Central Time).
IN WITNESS WHEREOF, said OLD MUTUAL U.S. HOLDINGS, INC. has caused this certificate to be signed by Guy Barker, its President and Chief Executive Officer, this 15th day of March, 2001.
| | | | | |
OLD MUTUAL U.S. FOLDINGS, INC. |
| |
| |
| By: | /s/ Guy Barker |
| Guy Barker |
| President and Chief Executive Officer |
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 03/28/2001
010154974 - 3348610
State of Delaware
Secretary of State
Division of Corporations
Delivered 11:09 AM 04/11/2011
FILED 11:09 AM 04/11/2011
SRV 110399716 - 3348610 FILE
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
OLD MUTUAL U.S. LIFE HOLDINGS, INC.
*****
Old Mutual U.S. Life Holdings, Inc., a corporation organized and existing by virtue of the General Corporation Law of the State of Delaware (the “Corporation”),
DOES HEREBY CERTIFY:
FIRST: That, by consent of all of the Directors of the Corporation, the following resolution was duly adopted setting forth a proposed amendment of the Certificate of Incorporation of the Corporation, declaring said amendment to be advisable:
VOTED: that the Board of Directors of the Company hasdetermined that it is in the best interests of the Company to change its name to Fidelity & Guaranty Life Holdings, Inc.; that the Company is authorized to change its name as provided, to amend its bylaws to reflect such change in name, to amend its charter through Certificate of Amendment reflecting such change in name, and to make such filings and take such other actions as are necessary or appropriate to change the name of the Company; and further, that the Certificate of Incorporation of the Corporation be amended by changing the Article thereof numbered “1”, so that, as amended, said Article shall be and read as follows:
“ARTICLE I
The name of the Corporation is: Fidelity & Guaranty Life Holdings, Inc.”
SECOND: That in lieu of a meeting and vote of stockholders, the sole stockholder has given written consent to said amendment in accordance with the provisions of Section 228 of the General Corporation Law of the State of Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance with the applicable provisions of Sections 242 and 228 of the General Corporation Law of the State of Delaware.
[Signature Page to Follow]
IN WITNESS WHEREOF, said Old Mutual U.S. Life Holdings, Inc. has caused this certificate to be signed by Eric L. Marhoun, its Senior Vice President, General Counsel and Secretary this 6th day of April, 2011.
| | | | | |
| Old Mutual U.S. Life Holdings, Inc. |
| |
| |
| By: | /s/ Eric L. Marhoun |
| Eric L. Marhoun, Senior Vice President, |
| General Counsel and Secretary |
State of Delaware
Secretary of State
Division of Corporations
Delivered 01:33 PM 05/16/2012
FILED 01:31 PM 05/16/2012
SRV 120575228 - 3348610 FILE
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
FIDELITY & GUARANTY LIFE HOLDINGS, INC.
Fidelity & Guaranty Life Holdings, Inc. (the "Corporation"), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the "DGCL"), does hereby certify as follows:
FIRST: The Corporation's Certificate of Incorporation (the "Certificate of Incorporation") is hereby amended by deleting Article IV thereof in its entirety and inserting in lieu thereof the following Article IV:
IV.
"The total number of shares of stock which the Corporation shall have authority to issue is eleven million (11,000,000) shares of common stock, par value $0.01 per share. From and after the effective date of the amendment of this Certificate of Incorporation to provide for such increase in authorized shares of common stock of the Corporation, each outstanding share of common stock, par value $0.01 per share, of the Corporation held by a stockholder as of such date shall represent 100,000 shares of common stock, par value $0.01 per share, of the Corporation without any further action by the stockholder. Each holder of record of a certificate of such issued shares of the Corporation's common stock, par value $0.01 per share, currently outstanding shall be entitled, upon submission of such certificate to the Corporation for cancellation, to receive a certificate for the Corporation's common stock, par value $0.01 per share, representing 100,000 times the number of such issued shares of common stock, par value $0.01 per share, stated on the face of the certificate so delivered for cancellation."
SECOND: The foregoing amendment has been duly adopted by the board of directors of the Corporation and the stockholders of the Corporation in accordance with the provisions of Sections 141, 228 and 242 of the DGCL.
[Signature Page Follows.]
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to the Certificate of Incorporation to be signed by the authorized person below this 16th day of May, 2012.
| | | | | |
FIDELITY & GUARANTY LIFE HOLDINGS, INC. |
| |
| |
| By: | /s/ Leland C. Launer, Jr |
| Name: Leland C. Launer, Jr. |
| Its: President & Chief Executive Officer |
State of Delaware
Secretary of State
Division of Corporations
Delivered 01:45 PM 12/27/2012
FILED 01:42 PM 12/27/2012
SRV 121395725 - 3348610 FILE
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
FIDELITY & GUARANTY LIFE HOLDINGS, INC.
Fidelity & Guaranty Life Holdings, Inc. (the "Corporation"), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the "DGCL"), does hereby certify as follows:
First: The Corporation's Certificate of Incorporation (the "Certificate of Incorporation") is hereby amended by deleting Article IV thereof in its entirety and inserting in lieu thereof the following Article IV:
IV.
"The total number of shares of stock which the Corporation shall have authority to issue is eleven million (11,000,000) shares of common stock, par value $0.01 per share. From and after May 16, 2012, each outstanding share of common stock, par value $0.01 per share, of the Corporation held by a stockholder as of May 16, 2012 shall represent 100,000 shares of common stock, par value $0.01 per share, of the Corporation without any further action by the stockholder. Each holder of record of a certificate of such issued shares of the Corporation's common stock, par value $0.01 per share, on May 16, 2012 shall be entitled, upon submission of such certificate to the Corporation for cancellation, to receive a certificate for the Corporation's common stock, par value $0.01 per share, representing 100,000 times the number of such issued shares of common stock, par value $0.01 per share, stated on the face of the certificate so delivered for cancellation. From and after the effective date of this amendment of the Certificate of Incorporation, there shall be two classes of common stock par value $0.01 per share, Class A and Class B, which shall be identical except that Class B shall be non-voting, with the total number of shares of stock which the Corporation shall have authority to Issue to remain at eleven million (11,000,000) consisting of ten million six hundred thousand (10,600,000) shares of Class A and four hundred thousand (400,000) shares of Class B. All shares outstanding as of the effective date of this amendment shall be Class A."
Second: The foregoing amendment has been duly adopted by the board of directors of the Corporation and stockholders of the Corporation in accordance with the provisions of Sections 141, 228 and 242 of the DGCL.
[Signature Page Follows.]
In Witness Whereof, the Corporation has caused this Certificate of Amendment to the Certificate of Incorporation to be signed by the authorized officer below this 27th day of December, 2012.
| | | | | |
| Fidelity & Guaranty Life Holdings, Inc. |
| |
| |
| By: | /s/ Eric L. Marhoun |
| Eric L. Marhoun |
| Senior Vice President and Secretary |
Old Mutual U.S. Life Holdings, Inc.
(a Delaware Corporation)
BYLAWS
I. GENERAL
MEETINGS OF STOCKHOLDERS AND RECORD DATES
1. ANNUAL MEETING. An annual meeting of Stockholders for the election of Directors and the transaction of such other business as may properly come before the meeting shall be held on such day and at such hour as the Board of Directors may designate. If the day fixed for the meeting is a legal holiday, the meeting shall be held at the same hour on the next succeeding full business day which is not a legal holiday.
2. SPECIAL MEETINGS. Special meetings of Stockholders may be called at any time by the President, the Board of Directors, or Stockholders entitled to cast at least one-fifth of the votes which all Stockholders are entitled to cast at the particular meeting. Upon written request of any person or persons who shall have duly called a special meeting, it shall be the duty of the Secretary to fix the date and hour of the meeting, to be held not more than sixty days after the receipt of the request.
3. PLACE. Each annual or special meeting of Shareholders shall be held at the principal office of the Corporation or at such other place as the Board of Directors may designate.
4. NOTICE. Written notice stating the place, day, and hour of each meeting of Stockholders and, in the case of special meetings, the general nature of the business to be transacted, shall be mailed by the Secretary at least ten days before the meeting to each Stockholder of record entitled to vote at the meeting to his address appearing on the books of the Corporation or supplied by him to the Corporation for the purpose of notice.
5. QUORUM. The presence, in person or by proxy, of Stockholders entitled to cast at least a majority of the votes which all Stockholders are entitled to cast on a particular matter shall constitute a quorum for the purpose of considering such matter at a meeting of Stockholders. If a quorum is not present in person or by proxy, those present may adjourn from time to time to reconvene at such time and place as they may determine. In case of a meeting called for the election of Directors, those present, in person or by proxy, at the second of such adjourned meetings, although less than a quorum for any other purpose, shall nevertheless constitute a quorum for the purpose of electing Directors at such second adjourned meeting.
6. VOTING. Every Stockholder entitled to vote at any Stockholders’ meeting shall be entitled, unless otherwise provided herein or by law, to one vote for every share of capital stock standing in his name on the books of the Corporation. Every Stockholder entitled to vote may authorize another person or persons to act for him by proxy. All proxies shall be in
writing and filed with the Secretary. Unless otherwise provided by law, all questions shall be decided by the vote of 51% of the outstanding common stock represented at any meeting.
7. RECORD DATES. The Board of Directors may fix a time not more than fifty days prior to the date of any meeting of Stockholders, or the date fixed for the payment of any dividend or distribution, or the date for the allotment of rights, or the date when any change or conversion or exchange of shares will be made or go into effect, as a record date for the determination of the Stockholders entitled to notice of or to vote at any such meeting, or to receive payment of any such dividend or distribution, or to receive any such allotment of rights, or to exercise the rights in respect to any such change, conversion or exchange of shares. In such case, only such Stockholders as shall be Stockholders of record at the close of business on the date so fixed shall be entitled to notice of or to vote at such meeting, or to receive payment of such dividend or distribution, or to receive such allotment of rights, or to exercise such rights in respect to any change, conversion or exchange of shares, as the case may be, notwithstanding any transfer of any shares on the books of the Corporation after the record date fixed as aforesaid.
8. CONSENT ACTION. Any action which may be taken at a meeting of the Stockholders may be taken without a meeting, if a consent or consents in writing, setting forth the action so taken, shall be signed by a majority of the Stockholders, and shall be filed with the Secretary of the Corporation.
II. DIRECTORS
1. NUMBER AND TERM. The Board of Directors shall consist of at least one Director. The Board of Directors and the stockholders shall have power to increase or decrease the number of Directors and each Director shall he elected at the annual meeting of the Stockholders following his election, and until his successor is elected and qualified.
2. VACANCIES. Vacancies in the Board of Directors, including vacancies resulting from an increase in the number of Directors, maybe filled by a majority of the remaining Directors, though less than a quorum, by election of a person to serve until the next annual meeting of Stockholders.
3. ANNUAL MEETING. An annual meeting of the Board of Directors shall be held each year as soon as practicable after the annual meeting of Stockholders, at the place where such meeting of Stockholders was held or at such other place as the Board may determine, for the purposes of organization, election or appointment of officers and the transaction of such other business as shall come before the meeting. No notice of the meeting need be given.
4. REGULAR MEETINGS. Regular meetings of the Board of Directors may be held without notice at such times and at such places in Delaware or elsewhere as the Board may determine.
5. SPECIAL MEETINGS. Special meetings of the Board of Directors may be called by the President or a majority of the Directors in office, to be held at such time (as will
permit the giving of notice as provided in this section) and at such place as may be designated by the person or persons calling the meeting. Notice of the place, day and hour of each special meeting shall be given to each Director by the Secretary by written notice mailed on or before the third full business day before the meeting or by notice received personally or by other means
at least 24 hours before the meeting.
6. QUORUM. A majority of the Directors in office shall constitute a quorum for the transaction of business but less than a quorum may adjourn from time to time to reconvene at such time and place as they may determine.
7. COMPENSATION. Directors shall receive such compensation for their services as shall be determined by the Board of Directors.
8. CONSENT ACTION. Any action which may he taken at a meeting of the Board of Directors may be taken without a meeting, if a consent or consents in writing, setting forth the action so taken, shall be signed by all of the Directors, and shall be filed with the Secretary of the Corporation.
9. DUTIES OF DIRECTORS AND RELIANCE UPON THIRD PARTIES. Each Director shall stand in a fiduciary relation to the Corporation and shall perform his or her duties as a Director, including his or her duties as a member of any committee of the Board upon which he or she may serve, in good faith, in a manner he or she reasonably believes to be in the best interest of the Corporation, and with such care, including reasonable inquiry, skill and diligence, as a person of ordinary prudence would use under similar circumstances. In performing such duties, each Director shall be entitled to rely in good faith on information, opinions, reports or statements, including financial statements and other financial data, in each case prepared or presented by any of the following: (i) officers or employees of the Corporation who the Director reasonably believes to be reliable and competent in the matters presented; (ii) counsel, public accountants or other persons as to which matters the Director reasonably believes to be within the professional or expert competence of such person; and (iii) a committee of the Board of Directors upon which he or she does not serve, duly designated in accordance with law, as to matters within its designated authority, which committee the Director reasonably believes to merit confidence. No Director of the Corporation shall be considered to be acting in good faith if he or she has knowledge concerning the matter in question that would cause such reliance to be unwarranted.
10. CONSIDERATION OF FACTS. In discharging the duties of their respective positions, the Board of Directors, committees of the Board of Directors and individual Directors may, in considering the best interest of the Corporation, consider the effects of any such action upon employees, upon suppliers and customers of the Corporation and upon communities in which offices or other establishments of the Corporation are located, and all other pertinent factors.
11. LIMITATION OF LIABILITY. No Director of the Corporation shall be personally liable for monetary damages as such for any action taken, or any failure to take any
action, unless (i) the Director has breached or failed to perform the duties of his office and (ii) the breach or failure to perform constitutes self-dealing, willful misconduct or recklessness; provided, however, that the foregoing provisions of this Section 11 shall not apply to (i) the responsibility or liability of a Director pursuant to any criminal statute; or (ii) the liability of a Director for the payment of taxes pursuant to local, state or federal law. Neither the amendment nor the repeal of this Section II shall eliminate or reduce the effect of this Section 11 with respect
to any matter occurring, or any cause of action, suit or claim that but for this Section 11 would accrue or arise, prior to such amendment or repeal.
III. OFFICERS
1. OFFICERS. The Board of Directors at any time may elect a Chairman, President, one or more Vice Presidents, a Treasurer and a Secretary, may designate any one or more Vice Presidents as Executive Vice Presidents, First Vice President, Vice President-Sales, Vice President-Operations or otherwise, and may elect or appoint such additional officers and agents as the Board may deem advisable. Any two or more offices may be held by the same person.
2. TERM. Each officer and each agent shall hold office until his successor is elected or appointed and qualified or until his death, resignation or removal by the Board of Directors.
3. AUTHORITY. DUTIES AND COMPENSATION. All elected or appointed officers and agents shall have such authority and perform such duties as may be provided in the Bylaws or as may be determined by the Board of Directors, Chairman or the President. They shall receive such compensation for their services as may be determined by the Board of Directors or in a manner approved by it. Notwithstanding any other provisions of these Bylaws, the Board shall have power from time to time by resolution to prescribe by what officers or agents particular documents or instruments or particular classes of documents or instruments shall be signed, countersigned, endorsed or executed; provided, however, that any person, firm or corporation shall be entitled to accept and to act upon any document or instrument signed. countersigned, endorsed or executed by officers or agents of the Corporation pursuant to the provisions of these Bylaws unless prior to receipt of such document or instrument such person, firm or corporation has been furnished with a certified copy of a resolution of the Board prescribing a different signature, countersignature, endorsement or execution.
4. CHAIRMAN. The Chairman shall preside at all meetings of the Stockholders and of the Board of Directors. The Chairman shall perform such duties as may be assigned to him by the Board of Directors.
5. PRESIDENT. The President shall be the chief executive officer of the Corporation. The President shall sign all certificates of stock of the Corporation or cause them to be signed in facsimile or otherwise as permitted by law; and shall perform such other duties as from time to time may be assigned to him by the Chairman or the Board of Directors.
6. VICE PRESIDENTS. In the absence of the President or in the event of his death, inability or refusal to act, the Vice President (or in the event that there be more than one Vice President, the Vice Presidents, in the order designated at the time of their election, or in the absence of any designation, then in the order of their election) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. Any Vice President may sign, with the Secretary or Assistant Secretary, certificates for shares of the Corporation; and shall perform such other duties as from time to time maybe assigned to him by the President or the Board of Directors.
7. TREASURER. The Treasurer shall keep and account for all moneys, funds and property of the Corporation which shall come into his hands, and shall render such accounts and present such statements to the Board of Directors as maybe required of him. Unless the Board shall prescribe otherwise, the Treasurer shall deposit all funds of the Corporation which may come into his hands in such bank or banks as the Board may designate and in accounts in the name of the Corporation, shall endorse for collection bills, notes, checks and other negotiable instruments received by the Corporation, may sign all bills, notes, checks and other negotiable instruments of the Corporation or cause them to be signed in facsimile or otherwise as the Board may determine, and shall pay out money as the business of the Corporation may determine, and shall pay out money as the business of the Corporation may require, taking proper vouchers therefor. In the absence or disability of the Treasurer, an Assistant Treasurer shall have the authority and perform the duties of the Treasurer.
8. SECRETARY. The Secretary shall give or cause to be given all required notices of meetings of Shareholders and of the Board of Directors, shall attend such meetings when practicable, shall record and keep the minutes and all other proceedings thereof, shall attest such records after every meeting by his signature, shall safely keep all documents and papers which shall come into his possession, shall truly keep the books and accounts of the Corporation appertaining to his office, shall countersign all certificates of stock of the corporation or cause them to be countersigned in facsimile or otherwise as permitted by law, may sign all bills, notes, checks and other negotiable instruments of the Corporation or cause them to be signed in facsimile or otherwise as the Board may determine, and shall present statements thereof when required by the Board. In the absence or disability of the Secretary, an Assistant Secretary shall have the authority and perform the duties of the Secretary.
IIIa. EXECUTIVE AND OTHER COMMITTEES.1
1. EXECUTIVE COMMITTEE. The Board of Directors may, by resolution adopted by a majority of the whole Board, designate an Executive Committee. The Chairman of the Board shall be the Chairman of the Executive Committee.
2. NUMBER; QUALIFICATION; TERM. The Executive Committee shall consist of three or more Directors, one of whom shall be the President. The Committee shall serve at the pleasure of the Board of Directors.
1 Section IIIa. Executive and Other Committee adopted by unanimous written consent of the Board of Directors on November 1, 2003.
3. AUTHORITY. The Executive Committee, except as limited by statute or the Articles of Incorporation, shall have and may exercise all of the authority of the Board of Directors, including but not limited to, making the investments, the purchase, sale or exchange of assets, and making of loans.
4. CHANGE IN NUMBER. The number of Executive Committee members may be increased or decreased (but not below three) from time to time by resolution adopted by a majority of the whole Board of Directors.
5. REMOVAL. Any member of the Executive Committee may be removed by the Board of Directors by the affirmative vote of a majority of the whole Board, whenever, in its judgment, the best interest of the corporation will be served thereby.
6. VACANCIES. A vacancy occurring in the Executive Committee may be filled by the Board of Directors.
7. MEETINGS. Time, place and notice (if any) of Executive Committee meetings shall be determined by the Chairman. The proceedings and results of those meeting shall be reported to the Directors at the next scheduled meeting of the Board of Directors.
8. QUORUM; MAJORITY OF VOTE. At meetings of the Executive Committee, any two of the members designated by the Board of Directors shall constitute a quorum for the transaction of business. The act of any two of the members at any meeting at which a quorum is present shall be the act of the Committee, except as otherwise specifically provided by statute or by the Articles of Incorporation or by these Bylaws.
9. OTHER COMMITTEES. The Board of Directors may, by resolution adopted by a majority of the whole Board, designate such other Committees as the Board of Directors may deem necessary or desirable. Any such Committee shall have such number of members and authority as prescribed by the resolution, subject to statute or the Articles of Incorporation. The provisions set forth in Section 4 through 8 inclusive of Article V of these Bylaws shall apply to any Committee of the Board of Directors created pursuant to this Section.
IV. CORPORATE SEAL
1. CORPORATE SEAL. A corporate seal shall be prepared and shall be kept in the custody of the Secretary of the Corporation. The seal or a facsimile thereof maybe impressed, affixed or reproduced, and attested by the Secretary or an Assistant Secretary, for the authentication of documents or instruments requiring the seal and bearing the signature of a duly authorized officer or agent.
V. INDEMNIFICATION
1. DIRECTORS, OFFICERS. EMPLOYEES AND REPRESENTATIVES. The Corporation shall indemnify each Director and officer, and it may indemnify each employee and representative, of the Corporation to the fullest extent permitted by Law, against all
liabilities and expenses, including without limitation, judgments, fines, penalties, attorney’s fees and amounts paid in settlement, imposed upon or reasonably incurred by him in connection with or resulting from any threatened, pending or completed claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (whether brought by or in the right of the Corporation or otherwise), in which he may become involved as a party or otherwise by reason of his being or having been such Director, officer, employee or representative or by reason of his serving or having served at the request of the Corporation as a director, officer, employee or other representative of another corporation, partnership, joint venture, trust or other enterprise; provided, however, that the foregoing indemnification provisions shall not apply to a threatened, pending or completed claim, action, suit or proceeding which is initiated by him.
2. DETERMINATION OF RIGHT OF INDEMNIFICATION. The indemnification provided or permitted by subsection (a) shall apply (i) whether or not the Director, officer, employee or representative continues to be such at the time such liabilities or expenses are imposed or incurred, whether the act or failure to act which is the subject of such claim, action, suit or proceeding occurred before or after the adoption of this by-law, and whether or not the indemnified liability or expenses arose or arise from a threatened, pending or completed claim, action, suitor proceeding by or in the right of the Corporation, and (ii) both to acts or omissions in his official capacity and to acts or omissions in another capacity while holding such office,
3. PAYMENT OF EXPENSES. Expenses incurred by a Director, officer, employee or representative of the Corporation in defending a civil or criminal action, suit or proceeding may be paid by the Corporation in advance of the final disposition thereof upon receipt of an undertaking by or on behalf of such person to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation.
4. BASIS OF RIGHTS. OTHER RIGHTS. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article V shall not be exclusive of any other rights to which persons seeking indemnification or advancement of expenses may be entitled under any provision of law, agreement, vote of Shareholders or Directors or otherwise, both as to an act or omission in his official capacity and as to an act or omission in another capacity while holding such office, and shall inure to the benefits of their heirs, executors, administrators and other legal representatives of such person.
5. INSURANCE. The Corporation may purchase and maintain insurance on behalf of any person who is or was a Director, officer, employee or representative of the Corporation or who is or was serving at the request of the Corporation as a Director, officer, employee or other representative of another corporation, partnership, joint venture, trust or other enterprise, for any liability asserted against such Director, officer, employee or representative and incurred by him in any capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the laws of the State of Delaware.
VI. REMOTE PARTICIPATION IN MEETINGS: WAIVER OF NOTICE
1. REMOTE PARTICIPATION ALLOWED. At any meeting of the Directors or Stockholders, one or more Directors or Stockholders, as the ease may be, may participate in a meeting of the Board, of a committee of the Board or of the Stockholders by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other.
2. WAIVER OF NOTICE. Whenever any written notice is required to be given under the provisions of the Delaware Corporation Law or these Bylaws, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein shall be deemed equivalent to the giving of such notice.
VII. FISCAL YEAR AND ANNUAL REPORT
1. FISCAL YEAR. The fiscal year of the Corporation shall end each year on December 31st.
2. ANNUAL REPORT. The Board of Directors shall not at any time be required to cause to be sent to the Stockholders annual or interim financial statements of the Corporation.
3. AUDIT OF ANNUAL REPORT. In the event the Board of Directors shall furnish financial statements to the Stockholders for any reason whatsoever, such financial statements need not be examined in accordance with generally accepted auditing standards by an independent certified public accountant of any state or territory of the United States or by a firm thereof, and need not be accompanied by such accountant’s or firm’s opinion as to the fairness of the presentation of the financial statements.
VIII. SHARE TRANSFERS AND RECORDS
1. SHARE TRANSFERS AND RECORDS. The Board of Directors may appoint a transfer agent or transfer agents and a registrar or registrars to make and record all transfers of shares of stock of the Corporation of any class. Each transfer agent shall prepare transfer records showing transfers made through the office of such agent. A share register shall be kept at the registered office of the Corporation. Such share register shall constitute books of the Corporation with respect to shares of stock of any class and the holders of record thereof, provided that the Board of Directors may designate instead as the books of the Corporation for this purpose a share register kept at the office of a transfer agent or registrar. If the Board of Directors shall have appointed a transfer agent or transfer agents and a registrar or registrars for stock of any class, all transfers of stock of such class shall be made only by such transfer agent or transfer agents at their offices and shall be recorded in their books and in the books of the registrar or registrars. In case of loss, destruction or theft of a certificate of stock, another may be issued in lieu thereof in such manner and upon such terms as the Board of Directors shall authorize.
2. RESTRICTIONS UPON TRANSFER AND LEGEND. Each certificate issued for shares of stock of the Corporation shall be endorsed as follows:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS. SUCH SHARES OF STOCK MAY NOT BE TRANSFERRED EXCEPT (1) PURSUANT TO A REGISTRATION STATEMENT EFFECTIVE UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR (2) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND ANY APPLICABLE STATE SECURITIES LAW.
IX. AMENDMENTS
1. AMENDMENTS. The Bylaws of the Corporation may be altered, amended, added to or repealed by action of the Board of Directors.
SECOND SUPPLEMENTAL INDENTURE
between
CF BERMUDA HOLDINGS LIMITED
and
CITIBANK, N.A., AS TRUSTEE
Dated as of January 26, 2023
(Supplement to the Indenture dated as of January 13, 2023)
This Second Supplemental Indenture (this “Supplemental Indenture”), dated as of January 26, 2023, is entered into by and between CF Bermuda Holdings Limited (the “Guaranteeing Subsidiary”), a subsidiary of F&G Annuities & Life, Inc., a Delaware corporation (the “Company”), and Citibank, N.A., as trustee (the “Trustee”).
RECITALS:
WHEREAS, the Company and certain of its subsidiaries have executed and delivered to the Trustee an Indenture, dated as of January 13, 2023 (as amended by the First Supplemental Indenture thereto and as may have been amended and supplemented from time to time, the “Base Indenture”), providing for the issuance from time to time of the Company’s unsecured notes or other evidences of indebtedness (the “Securities”), to be issued in one or more series and to be fully and unconditionally guaranteed on a senior unsecured basis by the Guarantors (as defined in the Base Indenture), in each case as provided in the Base Indenture;
WHEREAS, Section 3.12 of the Base Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall fully and unconditionally guarantee all of the Company’s obligations under the Securities and the Base Indenture on the terms and conditions set forth herein and under the Base Indenture (the “Guarantee”); and
WHEREAS, pursuant to Section 8.1 of the Base Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the premises and the guarantee of the Securities established by this Supplemental Indenture, the Guaranteeing Subsidiary and the Trustee mutually covenant and agree, for the equal and proportionate benefit of all such Holders, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.1 Relation to Base Indenture. This Supplemental Indenture constitutes a part of the Base Indenture but, except as expressly provided herein, shall not modify, amend or otherwise affect the Base Indenture insofar as it relates to any series of Securities or, except as expressly provided herein, modify, amend or otherwise affect in any manner the terms and conditions of the Securities of any series.
Section 1.2 Definitions. For all purposes of this Supplemental Indenture, the capitalized terms used herein which are defined in the Base Indenture (and which are not defined herein) have the meanings assigned to such terms in the Base Indenture. For purposes of this Supplemental Indenture:
(a) Unless the context otherwise requires, any reference to a Section refers to a Section of this Supplemental Indenture; and
(b) The words “herein,” “hereof” and “hereunder” and words of similar import refer to this Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision hereof.
ARTICLE II
THE GUARANTEE
Section 2.1 Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees to provide a full and unconditional Guarantee on the terms and subject to the conditions set forth in the Base Indenture, including, but not limited to, Article 10 thereof.
ARTICLE III
MISCELLANEOUS
Section 3.1 Relationship to Existing Base Indenture. This Supplemental Indenture is a supplemental indenture within the meaning of the Base Indenture. The Base Indenture, as supplemented and amended pursuant to this Supplemental Indenture, is in all respects ratified, confirmed and approved and, with respect to the Securities, the Base Indenture, as supplemented and amended through this Supplemental Indenture, shall be read, taken and construed as one and the same instrument.
Section 3.2 Modification of the Existing Base Indenture. Except as expressly modified through this Supplemental Indenture, the provisions of the Base Indenture shall govern the terms and conditions of the Securities.
Section 3.3 Governing Law. This Supplemental Indenture and the Guarantee shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to its conflict of laws provisions that would result in the application of the laws of any other jurisdiction (other than Sections 5-1401 and 5-1402 of the General Obligations Law of the State of New York). To the fullest extent permitted by law, any legal suit, action or proceeding arising out of or based upon this Supplemental Indenture or the transactions contemplated hereby may be instituted in the federal courts of the United States of America located in the City of New York or the courts of the State of New York in each case based in the City of New York, and each party to this Supplemental Indenture will submit to the non-exclusive jurisdiction of such suit, action or proceeding.
Section 3.4 Counterparts. This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. The words “execution,” “signed,” “signature” and words of like import in this Supplemental Indenture shall include images of manually executed signatures transmitted by facsimile, email or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including without limitation, DocuSign and AdobeSign or any other similar platform identified by the Guaranteeing Subsidiary and reasonably available at no undue burden or expense to the Trustee). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be
of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code. The Trustee shall have no duty to inquire into or investigate the authenticity or authorization of any such electronic signature and shall be entitled to conclusively rely on any such electronic signature without any liability with respect thereto.
Section 3.5 Trustee Not Responsible for Recitals. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture. The Trustee represents that it is duly authorized to execute and deliver this Supplemental Indenture and perform its obligations hereunder. The Trustee accepts the amendments of the Base Indenture effected by this Supplemental Indenture, but on the terms and conditions set forth in the Base Indenture, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee. Without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Guaranteeing Subsidiary, or for or with respect to (i) the validity or sufficiency of this Supplemental Indenture or any of the terms or provisions hereof, (ii) the proper authorization hereof by the Guaranteeing Subsidiary by action or otherwise, (iii) the due execution hereof by the Guaranteeing Subsidiary or (iv) the consequences of any amendment herein provided for, and the Trustee makes no representation with respect to any such matters.
[The remainder of this page is intentionally left blank.]
The parties hereto caused this Supplemental Indenture to be duly executed as of the date first set forth above.
| | | | | | | | |
| CF Bermuda Holdings Limited |
| | |
| By: | /s/ Wendy J.B. Young |
| Name: | Wendy J.B. Young |
| Title: | Executive Vice President, Chief Financial Officer |
| | |
| Citibank, N.A., |
| | |
| as Trustee | |
| | |
| By: | /s/ Michael Pitfick |
| Name: | Michael Pitfick |
| Title: | Senior Trust Officer |
[FORM OF 2028 NOTE – UNRESTRICTED]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO CEDE & CO., ITS NOMINEE OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE (AS DEFINED HEREIN).
F&G ANNUITIES & LIFE, INC.
7.400% Senior Notes due 2028
| | | | | |
| No. A-1 | CUSIP No. 30190A AC8 |
| $[●] | ISIN US30190AAC80 |
F&G Annuities & Life, Inc., a Delaware corporation (the “Company,” which term includes any successor Person thereto under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or its registered assigns, the principal sum set forth on the Schedule of Increases or Decreases in the Global Certificate attached hereto (or such lesser or greater amount as shall be outstanding hereunder from time to time in accordance with Sections 2.1 and 2.8 of the Base Indenture hereinafter referred to) on January 13, 2028 (the “Maturity Date”) and to pay interest thereon at a rate of 7.400% per year (as the same may be adjusted from time to time pursuant to Section 2.2 of the First Supplemental Indenture hereinafter referred to), accruing from and including January 13, 2023 (or the most recent Interest Payment Date (as defined below) to which interest on the Notes has been paid or made available for payment), payable semi-annually in arrears on January 13 and July 13 of each year, beginning on July 13, 2023 (each such date, an “Interest Payment Date”), and at the Maturity Date, until the principal hereof is paid or made available for payment. For purposes of this Note, the Base Indenture, the First Supplemental Indenture and the Second Supplemental Indenture hereinafter referred to, the term “interest” shall be deemed to include interest provided for in the second immediately preceding sentence and in Section 2.2 of the Supplemental Indenture.
Each interest payment due on an Interest Payment Date or the Maturity Date will include interest accrued from and including the most recent Interest Payment Date to which interest on the Notes has been paid or made available for payment (or, if no interest has been paid, January 13, 2023) to but excluding the next Interest Payment Date or the Maturity Date or any Redemption Date or Tax Redemption Date, as the case may be. Interest on the Notes will be computed on the basis of a 360-day year comprised of twelve 30-day months. If any Interest Payment Date falls on a date that is not a Business Day, such payment of interest (or principal in the case of the Maturity Date) will be postponed until the next succeeding Business Day, but no interest or other amount will be paid as a result of any such postponement, and such payment will have the same force and effect as if made on the scheduled Interest Payment Date.
Interest on each Interest Payment Date shall be payable to the Person in whose name the Notes are registered at the close of business on the regular record date for such Interest Payment Date, which regular record date shall be the January 1 or July 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date (each, a “Regular Record Date”); provided, however, that interest due on the Maturity Date or any Redemption Date or Tax Redemption Date (in each case, whether or not an Interest Payment Date) will be paid to the Person to whom principal of such Notes is payable (subject to the rights of Holders on the relevant Regular Record Date to receive interest due on any Interest Payment Date preceding the Maturity Date, Redemption Date or Tax Redemption Date). Any such interest not so punctually paid or duly provided for will constitute defaulted interest, will forthwith cease to be payable to the Holder on such Regular Record Date and may be paid by the Company as set forth in Section 2.7 of the Base Indenture.
Payment of the principal of, and interest and premium, if any, on this Note shall be made at the Corporate Trust Office, in such currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided that, for so long as this Note is in global form represented by this Global Certificate, all payments in respect hereof (including principal, interest and premium, if any) shall be made by wire transfer of immediately available funds to DTC or its nominee, as the case may be, as the registered owner of this Global Certificate. In the event that Definitive Certificates shall have been issued, all payments of principal, interest and premium, if any, shall be made by wire transfer of immediately available funds in accordance with the wire instructions of the registered Holders thereof appearing in the Securities Register or, if no such wire instructions are specified, by mailing a check to the address of each Holder of a Definitive Certificate appearing in the Securities Register.
All terms used in this Note which are defined in the Indenture and not defined herein shall have the meanings ascribed thereto in the Indenture. Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
{The remainder of this page is intentionally left blank.}
IN WITNESS WHEREOF, the Company caused this instrument to be duly executed.
| | | | | |
| F&G Annuities & Life, Inc. |
| as the Company |
| |
| By | |
| Name: | |
| Title: | |
{Signature Page to Global Note Certificate}
This is one of the Security Certificates representing Securities of the Series designated herein and referred to in the within-mentioned Indenture.
| | | | | | | | | | | | | | |
| Date: | | | CITIBANK, N.A., as Trustee |
| | | | |
| | | | |
| | | | |
| | | By | |
| | | | Authorized Signatory |
{Signature Page to Global Note Certificate}
REVERSE OF NOTE
This Note is one of a duly authorized issuance of securities of the Company (the “Notes”), issued and to be issued in one or more series under an Indenture, dated as of January 13, 2023 (the “Base Indenture”), as supplemented by a First Supplemental Indenture, dated as of January 13, 2023 (the “First Supplemental Indenture”), in each case among the Company, the Guarantors from time to time party thereto and Citibank, N.A., as Trustee (the “Trustee,” which term includes any successor Trustee under the Indenture), and a Second Supplemental Indenture, dated as of January 26, 2023 (the “Second Supplemental Indenture” and, together with the Base Indenture and the First Supplemental Indenture, the “Indenture”), between CF Bermuda Holdings Limited and the Trustee. Reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the Company, the Guarantors, the Trustee and the Holders of the Notes and of the terms upon which the Notes are, and are to be, authenticated and delivered. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act. The Notes are subject to all such terms, and Holders are referred to the Indenture and the Trust Indenture Act for a statement of such terms. To the maximum extent permitted by law, in the case of any conflict between the provisions of this Note and the Indenture, the provisions of the Indenture shall control.
This Note is one of the series designated on the face hereof, initially limited in aggregate principal amount to $[●]. The Company may at any time issue additional Securities under the Indenture in unlimited amounts having the same terms as the Notes (except as otherwise provided in the Indenture) so that such additional Securities shall be consolidated with the Notes, including for purposes of voting and redemption; provided, however, that the Company shall use a separate CUSIP number for any such additional Securities that (a) are not part of the same issue as the Notes within the meaning of U.S. Treasury Regulations sections 1.1275-1(f) and 1.1275-2(k) and (b) have, for purposes of U.S. federal income taxation, more than a de minimis amount of original issue discount as of the date of the issue of such additional Securities. Any such additional Securities shall, together with the outstanding Notes, constitute a single series of Securities under the Indenture.
Guarantees
To guarantee payment of principal of and interest and premium, if any, on the Notes and all other amounts payable by the Company under the Indenture and the Notes when and as the same shall be due and payable, whether at maturity, by acceleration, redemption, repurchase or otherwise, according to the terms of this Note and the Indenture, the Guarantors have fully and unconditionally guaranteed (and any future Guarantors shall fully and unconditionally guarantee), jointly and severally, such obligations pursuant to the terms of the Indenture.
Optional Redemption
Prior to the Par Call Date, the Company may redeem the Notes at its option, in whole or in part, at any time and from time to time, at a Redemption Price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of: (i) (A) the sum of the present values of the remaining scheduled payments of principal of, and interest on, the Notes to be redeemed discounted to the Redemption Date (assuming the Notes to be redeemed matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate, plus 50 basis points, less (B) interest accrued to the Redemption Date; and (ii) 100% of the principal amount of the Notes to be redeemed, plus, in the case of each of clause (i) and (ii), accrued and unpaid interest thereon to, but excluding, the Redemption Date.
On or after the Par Call Date, the Company may redeem the Notes at its option, in whole or in part, at any time and from time to time, at a Redemption Price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest thereon to, but excluding, the Redemption Date.
Subject to the conditions described in Section 2.3(d) of the Supplemental Indenture, the Company may redeem the Notes at its option, in whole but not in part, at a Redemption Price equal to 100% of the principal amount of the Notes, plus accrued and unpaid interest thereon to, but excluding, the Tax Redemption Date.
In the event of redemption of this Note in part only, a new Note or Notes of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof; provided that the principal amount of any such Note remaining outstanding after a redemption in part shall be $2,000 or any integral multiple of $1,000 in excess thereof.
Unless the Company defaults in payment of the Redemption Price and accrued and unpaid interest, on and after the Redemption Date or the Tax Redemption Date, as applicable, interest will cease to accrue on the Notes or portions thereof called for redemption and all rights hereunder will terminate. No later than 9:00 a.m., New York time, on any Redemption Date or any Tax Redemption Date, the Company is required to deposit with a Paying Agent or the Trustee (or, if the Company or any Guarantor is acting as Paying Agent, set aside, segregate and hold in trust as provided in Section 3.4 of the Base Indenture) an amount of money sufficient to pay the Redemption Price of and accrued and unpaid interest on the Notes to be redeemed on such Redemption Date or such Tax Redemption Date, as applicable. If the Company is redeeming less than all the Notes, the Notes to be redeemed shall be selected by lot by DTC, in the case of this Global Certificate, or by the Trustee by a method the Trustee deems to be fair and appropriate, in the case of any Notes that are not represented by a Global Certificate.
Change of Control Triggering Event
If a Change of Control Triggering Event with respect to the Notes occurs, unless the Company has exercised its right pursuant to the preceding section to redeem the Notes, the Company shall be required to make an offer to repurchase all or, at the Holder’s option, any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes for a payment in cash equal to 101% of the principal amount of the Notes to be repurchased, plus accrued and unpaid interest thereon to, but excluding, the repurchase date.
General Terms
The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Note and certain restrictive covenants and Events of Default with respect to this Note, in each case upon compliance with certain conditions set forth in the Indenture.
If an Event of Default with respect to the Notes shall occur and be continuing, the principal of the Notes may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture or the Notes of any series or the Guarantees thereunder may be amended or supplemented, and compliance with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences may be waived, in each case as provided in the Indenture.
The Notes will not be entitled to the benefit of a sinking fund.
As provided in, and subject to the provisions of, the Indenture, the Holder of this Note may institute an action or proceeding at law or in equity or in bankruptcy or otherwise upon or under or with respect to the Indenture, this Note or the Guarantees, or for the appointment of a trustee, receiver, liquidator, custodian or other similar official or for any other remedy hereunder or under the Indenture only if: (i) such Holder has given to the Trustee written notice of a default and of the continuance thereof; (ii) the Holders of not less than 25% in aggregate principal amount of the Notes then Outstanding have made a written request upon the Trustee to institute such action or proceedings in its own name as trustee under the Indenture; (iii) the Holders of not less than 25% in aggregate principal amount of the Notes then Outstanding have offered to the Trustee such security or indemnity as it may require against the losses, expenses and liabilities to be incurred in connection with such action or proceedings; (iv) the Trustee, for 60 days after its receipt of such notice, request and offer of security or indemnity has failed to institute any such action or proceeding; and (v) the Holders of a majority in aggregate principal amount of the Securities of each series affected (with each series treated as a separate class) at the time Outstanding have not given the Trustee a direction inconsistent with such written request. However, the right of the Holder hereof to receive payment of the principal of and any interest on this Note at the rates, in the amount and in the currency prescribed herein on or after the due dates expressed herein, or to institute suit for the enforcement of any such payment on or
after such dates, shall not be impaired or affected without the consent of such Holder. No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligations of the Company and the Guarantors, which are absolute and unconditional, to pay the principal of and any interest on this Note at the times, place and rate, and in the currency, prescribed herein.
As provided in the Indenture and subject to certain limitations set forth therein, this Note may be presented or surrendered for registration of transfer or for exchange or redemption at the Place of Payment, duly endorsed, or accompanied by a written instrument of transfer in form satisfactory to, the Company and the Registrar for this Note, duly executed by the Holder hereof or the Holder’s attorney duly authorized in writing. No service charge shall be made to the Holder for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may deem and treat the Person in whose name this Note is registered upon the Securities Register for the Notes as the owner hereof (whether or not this Note shall be overdue and notwithstanding any notation of ownership or other writing hereon) for all purposes, regardless of any notice to the contrary.
The Notes are issuable only in registered form in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
This Note and the Indenture and the Guarantees shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to its conflict of laws provisions that would result in the application of the laws of any other jurisdiction (other than Sections 5-1401 and 5-1402 of the General Obligations Law of the State of New York). To the fullest extent permitted by law, any legal suit, action or proceeding arising out of or based upon this Note or the Indenture or the transactions contemplated hereby may be instituted in the federal courts of the United States of America located in the City of New York or the courts of the State of New York in each case based in the City of New York, and each party to this Note and the Indenture will submit to the non-exclusive jurisdiction of such suit, action or proceeding.
* * *
SCHEDULE OF INCREASES OR DECREASES IN THE GLOBAL CERTIFICATE
The initial outstanding principal amount of this Global Certificate is $[●]. The following increases or decreases in this Global Certificate have been made:
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| Date of Exchange | | Amount of decreases in Principal Amount of this Global Certificate | | Amount of increases in Principal Amount of this Global Certificate | | Principal amount of this Global Certificate following such decreases or increases | | Signature of authorized signatory of Trustee |
| | | | | | | | |
| | | | | | | | | | | | | | | | | |
| SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP | | |
| ONE MANHATTAN WEST | | | |
| NEW YORK, NY 10001 | FIRM/AFFILIATE OFFICES |
| | | | | |
| | | | | |
| TEL: (212) 735-3000 | BOSTON
CHICAGO
HOUSTON
LOS ANGELES
PALO ALTO
WASHINGTON, D.C.
WILMINGTON |
| FAX: (212) 735-2000 |
| www.skadden.com |
| | |
| | | | | |
| | | | | |
| | August 10, 2023
| BEIJING
BRUSSELS
FRANKFURT
HONG KONG
LONDON
MUNICH
PARIS
SÃO PAULO
SEOUL
SHANGHAI
SINGAPORE
TOKYO
TORONTO |
F&G Annuities & Life, Inc.
801 Grand Avenue, Suite 2600
Des Moines, Iowa 50309
| | | | | |
| Re: | F&G Annuities & Life, Inc. |
| Registration Statement on Form S-4 |
Ladies and Gentlemen:
We have acted as special United States counsel to F&G Annuities & Life, Inc., a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S-4 filed by the Company and the Guarantors (as defined below) on the date hereof with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933 (the “Securities Act”) (such registration statement being hereinafter referred to as the “Registration Statement”) relating to up to $500,000,000 aggregate principal amount of the Company’s 7.400% Senior Notes due 2028 (the “Exchange Notes”) to be issued pursuant to an offer (the “Exchange Offer”) to exchange such Exchange Notes for a like principal amount of the Company’s issued and outstanding 7.400% Senior Notes due 2028 (the “Original Notes”), as contemplated by the Registration Rights Agreement, dated as of January 13, 2023 (the “Registration Rights Agreement”), among the Company, the Guarantors (as defined below) and BofA Securities, Inc., J.P. Morgan Securities LLC and RBC Capital Markets, LLC, as representatives of the several initial purchasers of the Original Notes.
The Exchange Notes are to be issued under the Indenture, dated as of January 13, 2023 (the “Base Indenture”), as supplemented by the First Supplemental Indenture, dated as of January 13, 2023 (the “First Supplemental Indenture”), in each case among the Company, the entities identified on Schedule 1 hereto (collectively, the “Delaware Guarantors”; the Delaware Guarantors, together with the Company, the “Specified Opinion Parties”) and Citibank, N.A., as trustee (the “Trustee”), and the Second Supplemental Indenture, dated as of January 26, 2023
F&G Annuities & Life, Inc.
August 10, 2023
Page 2
(the “Second Supplemental Indenture” and, together with the Base Indenture and the First Supplemental Indenture, the “Indenture”), between CF Bermuda Holdings Limited (“CF Bermuda” and, together with the Delaware Guarantors, the “Guarantors”) and the Trustee. The Indenture provides for the guarantee of the Original Notes and the Exchange Notes by the Guarantors. The Company, the Delaware Guarantors and CF Bermuda are collectively referred to herein as the “Opinion Parties.”
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
In rendering the opinions stated herein, we have examined and relied upon the following:
(a) the Registration Statement;
(b) an executed copy of the Registration Rights Agreement;
(c) an executed copy of the Base Indenture, including Article 10 thereof containing the guaranty obligations of the Delaware Guarantors of the Exchange Notes (the “Delaware Guarantor Guarantees”);
(d) an executed copy of the First Supplemental Indenture;
(e) an executed copy of the Second Supplemental Indenture, including Section 2.1 thereof containing the guaranty obligations of CF Bermuda of the Exchange Notes on the terms and subject to the conditions set forth in the Base Indenture, including, but not limited to, Article 10 thereof (the “CF Bermuda Guarantee” and, together with the Delaware Guarantor Guarantees, the “Exchange Guarantees”);
(f) the form of global certificate evidencing the Exchange Notes to be registered in the name of Cede & Co. and included as an exhibit to the Registration Statement (the “Exchange Note Certificate”);
(g) an executed copy of a certificate of Jodi Ahlman, General Counsel and Secretary of the Company, dated the date hereof (the “Company Secretary’s Certificate”);
(h) executed copies of the certificates of Jodi Ahlman, Senior Vice President, General Counsel and Secretary of each of the Delaware Guarantors, each dated the date hereof (together with the Company Secretary’s Certificate, the “Secretary’s Certificates”);
(i) copies of each Specified Opinion Party’s Certificate of Incorporation, as amended and in effect as of the date specified on Schedule 2 hereto, and certified by the Secretary of State of the State of Delaware as of the date specified on Schedule 2 hereto and certified pursuant to the applicable Secretary’s Certificate;
(j) copies of each Specified Opinion Party’s Bylaws, as amended and in effect as of the date specified on Schedule 2 hereto, and certified pursuant to the applicable Secretary’s Certificate; and
F&G Annuities & Life, Inc.
August 10, 2023
Page 3
(k) copies of certain resolutions adopted by the Board of Directors of each Specified Opinion Party, as of the date specified on Schedule 2 hereto, certified pursuant to the applicable Secretary’s Certificate.
We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Opinion Parties and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Opinion Parties and others, and such other documents as we have deemed necessary or appropriate as a basis for the opinions stated below.
In our examination, we have assumed the genuineness of all signatures, including electronic signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified or photocopied copies, and the authenticity of the originals of such copies. As to any facts relevant to the opinions stated herein that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the Opinion Parties and others and of public officials, including the facts and conclusions set forth in the Secretary’s Certificates and the factual representations and warranties contained in the Transaction Documents (as defined below).
We do not express any opinion with respect to the laws of any jurisdiction other than (i) the laws of the State of New York and (ii) the General Corporation Law of the State of Delaware (the “DGCL”) (all of the foregoing being referred to as the “Opined-on Law”).
As used herein, “Transaction Documents” means the Indenture (including the Exchange Guarantees provided for therein), the Exchange Note Certificate and the Registration Rights Agreement.
Based upon the foregoing and subject to the qualifications and assumptions stated herein, we are of the opinion that:
1. The Exchange Note Certificate, in the form examined by us, has been duly authorized by all requisite corporate action on the part of the Company under the DGCL, and when duly executed by the Company and authenticated by the Trustee and issued and delivered upon consummation of the Exchange Offer against receipt of the Original Notes to be surrendered in exchange therefor in accordance with the terms of the Registration Rights Agreement, the Exchange Offer and the Indenture and when the Registration Statement, as finally amended (including all necessary post-effective amendments), has become effective under the Securities Act and the Indenture has been qualified under the Trust Indenture Act of 1939 (the “TIA”), the Exchange Note Certificate will constitute the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms under the laws of the State of New York.
2. The Exchange Guarantee of each Delaware Guarantor has been duly authorized by all requisite corporate action on the part of such Delaware Guarantor under the DGCL.
F&G Annuities & Life, Inc.
August 10, 2023
Page 4
3. When the Registration Statement, as fully amended (including all necessary post-effective amendments), has become effective under the Securities Act and the Indenture has been qualified under the TIA and when the Exchange Note Certificate, in the form examined by us, has been duly executed by the Company, authenticated by the Trustee and issued and delivered upon consummation of the Exchange Offer against receipt of the Original Notes to be surrendered in exchange therefor in accordance with the terms of the Registration Rights Agreement, the Exchange Offer and the Indenture, the Exchange Guarantee of each Guarantor will constitute the valid and binding obligation of such Guarantor, enforceable against such Guarantor in accordance with its terms under the laws of the State of New York.
The opinions stated herein are subject to the following qualifications:
(a) we do not express any opinion with respect to the effect on the opinions stated herein of any bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer, preference and other similar laws or governmental orders affecting creditors’ rights generally, and the opinions stated herein are limited by such laws and orders and by general principles of equity (regardless of whether enforcement is sought in equity or at law);
(b) we do not express any opinion with respect to the effect on the opinions stated herein of (i) the compliance or non-compliance of any party to any of the Transaction Documents with any laws, rules or regulations applicable to such party or (ii) the legal status or legal capacity of any party to any of the Transaction Documents;
(c) we do not express any opinion with respect to any law, rule or regulation that is applicable to any party to any of the Transaction Documents or the transactions contemplated thereby solely because such law, rule or regulation is part of a regulatory regime applicable to any such party or any of its affiliates as a result of the specific assets or business operations of such party or such affiliates;
(d) except to the extent expressly stated in the opinions contained herein, we have assumed that each of the Transaction Documents constitutes the valid and binding obligation of each party to such Transaction Document, enforceable against such party in accordance with its terms;
(e) the opinions stated herein are limited to the agreements and documents specifically identified in the opinions contained herein without regard to any agreement or other document referenced in such agreement or document (including agreements or other documents incorporated by reference or attached or annexed thereto);
(f) we do not express any opinion with respect to the enforceability of any provision contained in any Transaction Document relating to any indemnification, contribution, non-reliance, exculpation, release, limitation or exclusion of remedies, waiver or other provisions having similar effect that may be contrary to public policy or violative of federal or state securities laws, rules or regulations, or to the extent any such provision purports to, or has the effect of, waiving or altering any statute of limitations;
F&G Annuities & Life, Inc.
August 10, 2023
Page 5
(g) we do not express any opinion with respect to the enforceability of any provision contained in any Transaction Document purporting to prohibit, restrict or condition the assignment of rights under such Transaction Document to the extent that such prohibition, restriction or condition on assignability is ineffective pursuant to the Uniform Commercial Code;
(h) to the extent that any opinion relates to the enforceability of the choice of New York law and choice of New York forum provisions contained in any Transaction Document, the opinions stated herein are subject to the qualification that such enforceability may be subject to, in each case, (i) the exceptions and limitations in New York General Obligations Law sections 5-1401 and 5-1402 and (ii) principles of comity and constitutionality;
(i) we do not express any opinion with respect to Section 12.9 of the Base Indenture to the extent that such section provides for a waiver of trial by jury;
(j) we call to your attention that irrespective of the agreement of the parties to any Transaction Document, a court may decline to hear a case on grounds of forum non conveniens or other doctrine limiting the availability of such court as a forum for resolution of disputes; in addition, we call to your attention that we do not express any opinion with respect to the subject matter jurisdiction of the federal courts of the United States of America in any action arising out of or relating to any Transaction Document;
(k) we do not express any opinion with respect to the enforceability of Section 10.1 of the Base Indenture and Section 2.1 of the Second Supplemental Indenture to the extent that such sections provide that the obligations of the Guarantors are absolute and unconditional irrespective of the enforceability or genuineness of the Indenture or the effect thereof on the opinions herein stated;
(l) we do not express any opinion with respect to the enforceability of the provisions contained in Section 10.2 of the Base Indenture to the extent that such provisions limit the obligation of the Guarantors under the Indenture or any right of contribution of any party with respect to the obligations under the Indenture;
(m) we call to your attention that the opinions stated herein are subject to possible judicial action giving effect to governmental actions or laws of jurisdictions other than those with respect to which we express our opinion;
(n) we do not express any opinion with respect to the enforceability of any provision contained in any Transaction Document providing for indemnity by any party thereto against any loss in obtaining the currency due to such party under any Transaction Document from a court judgment in another currency;
(o) we do not express any opinion whether the execution or delivery of any Transaction Document by any Opinion Party, or the performance by any Opinion Party of its obligations under any Transaction Document to which such Opinion Party is a party will constitute a violation of, or a default under, any covenant, restriction or provision with respect to
F&G Annuities & Life, Inc.
August 10, 2023
Page 6
financial ratios or tests or any aspect of the financial condition or results of operations of any Opinion Party or any of its subsidiaries; and
(p) we have assumed that subsequent to the effectiveness of the Base Indenture, the Base Indenture has not been modified, amended, restated, supplemented or terminated, other than by the First Supplemental Indenture and the Second Supplemental Indenture, and that the Indenture will constitute the valid and binding obligation of the Opinion Parties immediately prior to the issuance of the Exchange Note Certificate and the Exchange Guarantees.
In addition, in rendering the foregoing opinions we have assumed that:
(a) CF Bermuda (i) is duly organized and is validly existing and in good standing, (ii) has requisite legal status and legal capacity under the laws of the jurisdiction of its organization and (iii) has complied and will comply with all aspects of the laws of the jurisdiction of its organization in connection with the transactions contemplated by, and the performance of its obligations under, the Transaction Documents to which CF Bermuda is a party;
(b) CF Bermuda has the corporate power and authority to execute, deliver and perform all its obligations under each of the Transaction Documents to which CF Bermuda is a party;
(c) each of the Transaction Documents to which CF Bermuda is a party has been duly authorized, executed and delivered by all requisite corporate action on the part of CF Bermuda;
(d) neither the execution and delivery by each Opinion Party of the Transaction Documents to which it is a party nor the performance by such Opinion Party of its obligations under each of the Transaction Documents to which it is a party, including the issuance of the Exchange Notes and the Exchange Guarantees: (i) conflicts or will conflict with the organizational documents of CF Bermuda, (ii) constitutes or will constitute a violation of, or a default under, any lease, indenture, agreement or other instrument to which any Opinion Party or its property is subject (except that we do not make the assumption set forth in this clause (ii) with respect to those agreements or instruments expressed to be governed by the laws of the State of New York which are filed in Part II of the Registration Statement or the Company’s Annual Report on Form 10-K for the year ended December 31, 2022), (iii) contravenes or will contravene any order or decree of any governmental authority to which any Opinion Party or its property is subject, or (iv) violates or will violate any law, rule or regulation to which any Opinion Party or its property is subject (except that we do not make the assumption set forth in this clause (iv) with respect to the Opined-on Law); and
(e) neither the execution and delivery by each Opinion Party of the Transaction Documents to which it is a party nor the performance by each Opinion Party of its obligations under each of the Transaction Documents to which it is a party, including the issuance of the Exchange Notes and the Exchange Guarantees, requires or will require the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under any law, rule or regulation of any jurisdiction.
F&G Annuities & Life, Inc.
August 10, 2023
Page 7
We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act or the General Rules and Regulations under the Securities Act. This opinion is expressed as of the date hereof unless otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable law.
| | |
| Very truly yours, |
|
| /s/ Skadden, Arps, Slate, Meagher & Flom LLP |
DSY
Schedule 1
Delaware Guarantors
1.FGL US Holdings Inc., a Delaware corporation
2.Fidelity & Guaranty Life Business Services, Inc., a Delaware corporation
3.Fidelity & Guaranty Life Holdings, Inc., a Delaware corporation
Schedule 2
Resolutions, Certification and Governance Documents of the Specified Opinion Parties
| | | | | | | | | | | | | | |
| Name | Date of Charter Certification by Delaware Secretary of State | Description of Certified Charter | Description of Bylaws | Date of Adoption of Resolutions |
| F&G Annuities & Life, Inc. | August 10, 2023 | Certificate of Incorporation dated as of August 7, 2020.
Amended and Restated Certificate of Incorporation dated as of November 30, 2022 | Bylaws dated as of August 7, 2020
Amended and Restated Bylaws dated as of November 30, 2022 | Board of Directors September 9, 2022
|
| FGL US Holdings Inc. | August 10, 2023 | Certificate of Incorporation dated as of May 19, 2017 | Bylaws dated as of May 19, 2017 | Board of Directors January 3, 2023 |
| Fidelity & Guaranty Life Business Services, Inc. | August 10, 2023 | Certificate of Incorporation dated as of February 8, 2001, as amended on September 11, 2001, March 3, 2004 and April 11, 2011
| Bylaws dated as of February 8, 2001 | Board of Directors January 3, 2023 |
| Fidelity & Guaranty Life Holdings, Inc. | August 10, 2023 | Certificate of Incorporation dated as of January 25, 2001, as amended on March 15, 2001, April 11, 2011, May 16, 2012 and December 27, 2012
| Bylaws dated as of November 1, 2001 | Board of Directors January 3, 2023 |
CF Bermuda Holdings Limited
Sterling House
16 Wesley Street
Hamilton HM 11
Bermuda
Our ref: 7598-003
August 10, 2023
Dear Sirs/Madams,
CF Bermuda Holdings Limited – Registration Statement on Form S-4
We have acted as special legal counsel in Bermuda to CF Bermuda Holdings Limited, a Bermuda exempted company (the “Company”), in connection with the registration statement on Form S-4 filed by, inter alios, the Company as a Guarantor (as defined below) on the date hereof with the U.S. Securities and Exchange Commission (the “Commission”) under the U.S. Securities Act of 1933 (the “Securities Act”) (such registration statement being hereinafter referred to as the “Registration Statement”) relating to up to US$500,000,000 aggregate principal amount of the issued and outstanding 7.400% Senior Notes due 2028 of F&G Annuities & Life, Inc., a Delaware corporation (“F&G”) (the “Exchange Notes”) to be issued pursuant to an offer to exchange such Exchange Notes for a like principal amount of F&G’s issued and outstanding 7.400% Senior Notes due 2028 (the “Original Notes”), as contemplated by that certain Registration Rights Agreement dated as of January 13, 2023.
The Exchange Notes are to be issued under the Indenture, dated as of January 13, 2023 (the “Base Indenture”), as supplemented by the First Supplemental Indenture, dated as of January 13, 2023 (the “First Supplemental Indenture”), in each case among F&G, certain guarantors thereunder (the “Delaware Guarantors”) and Citibank, N.A., as trustee (the “Trustee”), and the Second Supplemental Indenture, dated as of January 26, 2023 (the “Second Supplemental Indenture” and, together with the Base Indenture and the First Supplemental Indenture, the “Indenture”), between the Company (together with the Delaware Guarantors, the “Guarantors” and each a “Guarantor”) and the Trustee. The Indenture provides for the guarantee of the Original Notes and the Exchange Notes by the Guarantors.
1
ASW Law Limited | Crawford House | 50 Cedar Avenue | PO BOX HM2879 | Hamilton | HMLX | Bermuda | T. +1 441 295 6566 | F. +1 441 295 6566 | W. www.aswlaw.com
1.For the purpose of giving this opinion, we have reviewed the following documents (collectively, the “Documents”):
1.1a copy of the Registration Statement;
1.2a copy of the Indenture;
1.2copies of the memorandum of association and the bye-laws of the Company (together the “Constitutional Documents”), each certified by the Secretary of the Company under the Secretary’s Certificate (as defined below);
1.3a copy of the unanimous written resolutions (the “Resolutions”) of the board of directors of the Company (the “Board”) dated January 26, 2023, as certified by the Secretary of the Company under the Secretary’s Certificate;
1.4a copy of a certificate of compliance from the Registrar of Companies in Bermuda in respect of the Company dated August 10, 2023, as certified by the Secretary of the Company under the Secretary’s Certificate;
1.5a certificate in respect of the Company signed by the Secretary of the Company and dated the date hereof (the “Secretary’s Certificate”); and
1.5such other documents in relation thereto as we have deemed necessary in order to render the opinions given below.
2.We have assumed for the purposes of this opinion:
2.1the genuineness and authenticity of all signatures and the conformity to the originals of all copies (whether or not certified) examined by us and the authenticity and completeness of the originals from which such copies were taken;
2.2that where a document has been examined by us in draft form, it will be or has been executed and/or filed in the form of that draft, and where a number of drafts of a document have been examined by us all changes thereto have been marked or otherwise drawn to our attention;
2.3the accuracy and completeness of all factual representations made in the Documents reviewed by us;
2
ASW Law Limited | Crawford House | 50 Cedar Avenue | PO BOX HM2879 | Hamilton | HMLX | Bermuda | T. +1 441 295 6566 | F. +1 441 295 6566 | W. www.aswlaw.com
2.3that there are no agreements or arrangements in existence which in any way amend or vary the terms of the Indenture;
2.4that the resolutions set forth in the Resolutions are in full force and effect, have not been rescinded or amended and that there is no matter affecting the authority of the directors to effect entry by the Company into the Indenture, not disclosed by the Constitutional Documents or the Resolutions, which would have any adverse implication in relation to the opinions expressed herein;
2.5that the Constitutional Documents will not be amended in any manner that would affect the opinions set forth herein;
2.6that there is no provision of the laws or regulations of any jurisdiction, other than Bermuda, which would have any implication in relation to the opinions expressed in this opinion;
2.7the capacity, power and authority of all parties other than the Company to enter into and perform their obligations under any and all documents entered into by such parties in connection with the Indenture, and the due execution and delivery thereof by each party thereto; and
2.8the Company is able to pay its liabilities as they become due.
3.On the basis of and subject to the foregoing, and further subject to the reservations set out below and any matters not disclosed to us, we are of the opinion that:
3.1The Company is an exempted company duly incorporated with limited liability and is validly existing and in good standing under the laws of Bermuda (meaning solely that the Company has not failed to make any filing with any Bermuda governmental authority or to pay any Bermuda government fee or tax which might make it liable to be struck off the Register of Companies and thereby cease to exist under the laws of Bermuda).
3.2The Company has the necessary power and authority to enter into and perform its obligations under the Indenture. The execution and delivery of the Indenture by the Company and the performance by the Company of its obligations thereunder will not violate the Constitutional Documents nor any applicable law, regulation order or decree in Bermuda.
3
ASW Law Limited | Crawford House | 50 Cedar Avenue | PO BOX HM2879 | Hamilton | HMLX | Bermuda | T. +1 441 295 6566 | F. +1 441 295 6566 | W. www.aswlaw.com
3.3The Company has taken all corporate action required to authorise its execution, delivery and performance of the Indenture. The Indenture has been duly executed and delivered by or on behalf of the Company and constitutes the valid and binding obligations of the Company in accordance with the terms thereof.
4.The obligations of the Company under the Indenture (a) will be subject to the laws from time to time in effect relating to bankruptcy, insolvency, liquidation, possessory liens, rights of set off, reorganisation, amalgamation, merger, moratorium or any other laws or legal procedures, whether of a similar nature or otherwise, generally affecting the rights of creditors including (without limiting the foregoing) the provisions of Part IVA of the Conveyancing Act 1983, (b) will be subject to statutory limitation of the time within which proceedings may be brought, (c) will be subject to general principles of equity and, as such, specific performance and injunctive relief, being equitable remedies, may not be available where damages are considered to be an adequate remedy, (d) may not be given effect to by a Bermuda court, if and to the extent they constitute the payment of an amount which is in the nature of a penalty and not in the nature of liquidated damages; (e) may not be given effect to the extent they are to be performed in a jurisdiction outside Bermuda and such performance would be illegal under the laws of that jurisdiction. Notwithstanding any contractual submission to the jurisdiction of specific courts, a Bermuda court has inherent discretion to stay or allow proceedings in the Bermuda courts.
5.We have made no investigation of and express no opinion in relation to the laws of any jurisdiction other than Bermuda. This opinion is to be governed by and construed in accordance with the laws of Bermuda and is limited to and is given on the basis of the current law and practice in Bermuda.
6.This opinion is issued solely for the purposes of the filing of the Registration Statement with the Commission and shall not be relied upon in respect of any other matter.
7.This opinion speaks as of its date and is strictly limited to the matters stated herein and we assume no obligation to review or update this opinion if applicable law or the existing facts or circumstances should change.
8.We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the references to our firm in the Registration Statement. In giving this consent, we do not hereby admit that we are
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ASW Law Limited | Crawford House | 50 Cedar Avenue | PO BOX HM2879 | Hamilton | HMLX | Bermuda | T. +1 441 295 6566 | F. +1 441 295 6566 | W. www.aswlaw.com
experts within the meaning of Section 11 of the Securities Act or that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations of the Commission promulgated thereunder.
Yours faithfully,
/s/ ASW Law Limited
5
ASW Law Limited | Crawford House | 50 Cedar Avenue | PO BOX HM2879 | Hamilton | HMLX | Bermuda | T. +1 441 295 6566 | F. +1 441 295 6566 | W. www.aswlaw.com
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the reference to our firm under the caption “Experts” in the Registration Statement (Form S-4) and related Prospectus of F&G Annuities & Life, Inc. for the registration of up to $500,000,000 aggregate principal amount of senior notes and to the incorporation by reference therein of our report dated February 27, 2023 (except for the adoption of ASU No. 2018-12 disclosed in Note W as to which the date is July 13, 2023), with respect to the consolidated financial statements of F&G Annuities & Life, Inc. included in F&G Annuities & Life, Inc.’s Current Report on Form 8-K dated July 13, 2023, filed with the Securities and Exchange Commission.
| | |
| /s/ Ernst & Young LLP |
|
| Des Moines, Iowa |
| August 10, 2023 |
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility of a Trustee
Pursuant to Section 305 (b)(2) ___
CITIBANK, N.A.
(Exact name of Trustee as specified in its charter)
| | | | | | | | | | | |
| A National Banking Association | | 13-5266470 | |
(Jurisdiction of incorporation or organization | | (I.R.S. Employer | |
| if not a U.S. national bank) | | Identification No. ) | |
| | | |
399 Park Avenue, | | | |
| New York, New York | | 10043 | |
| (Address of principal executive office) | | (Zip Code) | |
Citibank, N.A.
388 Greenwich Street
New York, N.Y. 10013
(212) 816-0392
(Name, address, and telephone number of agent for service)
F&G Annuities & Life, Inc.
(Exact name of obligor as specified in its charter)
SEE TABLE OF ADDITIONAL REGISTRANTS
| | | | | | | | | | | |
| Delaware | | 85-2487422 | |
(State or other jurisdiction of | | (I.R.S. employer | |
| incorporation or organization) | | identification no.) | |
| | | |
| 801 Grand Avenue, Suite 2600 | | | |
| Des Moines, Iowa | | 50309 | |
| (Address of principal executive offices) | | (Zip Code) | |
Debt Securities
(Title of Indenture Securities)
TABLE OF ADDITIONAL REGISTRANTS
| | | | | | | | | | | | | | | | | | | | |
| Exact name of registrant as specified in its charter* | | State or other jurisdiction of incorporation or organization | | Primary Standard Industrial Classification Code Number | | I.R.S. Employer
Identification
Number |
| CF Bermuda Holdings Limited | | Bermuda | | 6311 | | |
| FGL US Holdings Inc. | | Delaware | | 6311 | | 82-2796563 |
| Fidelity & Guaranty Life Business Services, Inc. | | Delaware | | 6311 | | 43-1914674 |
| Fidelity & Guaranty Life Holdings, Inc. | | Delaware | | 6311 | | 48-1245662 |
* The address and telephone number of each additional registrant is c/o F&G Annuities & Life, Inc., 801 Grand Avenue, Suite 2600, Des Moines, Iowa 50309, tel. (515) 330-3340.
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it is subject.
| | | | | |
| Name | Address |
| Comptroller of Currency | Washington, D.C. |
| |
| Federal Reserve Bank of New York | 33 Liberty Street, New York, NY |
| |
| Federal Deposit Insurance Corporation | Washington, D.C. |
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
Items 3-15. Not Applicable.
Item 16. List of Exhibits.
List below all exhibits filed as a part of this Statement of Eligibility.
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as exhibits hereto.
Exhibit 1 - Copy of Articles of Association of the Trustee, as now in effect.
(Exhibit 1 to T-1 filed as exhibit to the Filing 305B2 dated October 5, 2012 under File No. 333-183223).
Exhibit 2 - Copy of certificate of authority of the Trustee to commence business. (attached).
Exhibit 3 - Copy of authorization of the Trustee to exercise corporate trust powers. (Exhibit 3 to T-1 filed May 5, 2014 under File No. 333-195697).
Exhibit 4 - Copy of existing By-Laws of the Trustee. (Exhibit 4 to T-1 filed as exhibit to the Filing 305B2 dated October 5, 2012 under File No. 333-183223).
Exhibit 5 - Not applicable.
Exhibit 6 - The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939. (Exhibit 6 to T-1 filed May 5, 2014 under File No. 333-195697).
Exhibit 7 - Copy of the latest Report of Condition of Citibank, N.A. (as of
December 31, 2022- attached)
Exhibit 8 - Not applicable.
Exhibit 9 - Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee, Citibank, N.A., a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York and State of New York, on the 10th day of August, 2023.
| | | | | | | | | | | |
| CITIBANK, N.A. | |
| | | |
| By | | /s/ Keri-anne Marshall | |
| | Keri-anne Marshall | |
| | Vice President | |
| | | | | |
| Office of the Comptroller of the Currency |
|
| Washington, DC 20219 |
CERTIFICATE OF CORPORATE EXISTENCE AND FIDUCIARY POWERS
I, Michael J. Hsu, Acting Comptroller of the Currency, do hereby certify that:
1.The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession, custody, and control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.
2."Citibank, N.A.," Sioux Falls, South Dakota( Charter No. 1461), is a national banking association formed under the laws of the United States and is authorized thereunder to transact the business of banking and exercise fiduciary powers on the date of this certificate.
IN TESTIMONY WHEREOF, today, July 5, 2023, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the U.S. Department of the Treasury, in the City of Washington, District of Columbia.
| | | | | | | | |
| /s/ Michael J. Hsu | |
| Acting Comptroller of the Currency | |
| | |
| | |
| 2023-00923-C | | |
| | | | | |
| CONSOLIDATED BALANCE SHEET | Citigroup Inc. and Subsidiaries |
| |
| | | | | | | | | | | |
| In millions of dollars | December 31, |
| 2022 | | 2021 |
| Assets | | | |
| Cash and due from banks (including segregated cash and other deposits) | $ | 30,577 | | | $ | 27,515 | |
| Deposits with banks, net of allowance | 311,448 | | | 234,518 | |
Securities borrowed and purchased under agreements to resell (including $239,527 and $216,466 as of December 31, 2022 and 2021, respectively, at fair value), net of allowance | 365,401 | | | 327,288 | |
| Brokerage receivables, net of allowance | 54,192 | | | 54,340 | |
Trading account assets (including $133,535 and $133,828 pledged to creditors at December 31, 2022 and 2021, respectively) | 334,114 | | | 331,945 | |
| Investments: | | | |
Available-for-sale debt securities (including $10,933 and $9,226 pledged to creditors as of December 31, 2022 and 2021, respectively), net of allowance | 249,679 | | | 288,522 | |
Held-to-maturity debt securities (fair value of which is $243,648 and $216,038 as of December 31,2022 and 2021, respectively) (includes $— and $1,460 pledged to creditors as of December 31, 2022 and 2021, respectively), net of allowance | 268,863 | | | 216,963 | |
Equity securities (including $895 and $1,032 as of December 31, 2022 and 2021, respectively, at fair value) | 8,040 | | | 7,337 | |
| Total investments | $ | 526,582 | | | $ | 512,822 | |
| Loans: | | | |
Consumer (including $237 and $12 as of December 31, 2022 and 2021, respectively, at fair value) | 368,067 | | | 376,534 | |
Corporate (including $5,123 and $6,070 as of December 31, 2022 and 2021, respectively, at fair value) | 289,154 | | | 291,233 | |
| Loans, net of unearned income | $ | 657,221 | | | $ | 667,767 | |
Allowance for credit losses on loans (ACLL) | (16,974) | | | (16,455) | |
| Total loans, net | $ | 640,247 | | | $ | 651,312 | |
| Goodwill | 19,691 | | | 21,299 | |
| Intangible assets (including MSRs of $665 and $404 as of December 31, 2022 and 2021, respectively, at fair value) | 4,428 | | | 4,495 | |
| Premises and equipment, net of depreciation and amortization | 26,253 | | | 24,328 | |
| Other assets (including $10,658 and $12,342 as of December 31, 2022 and 2021, respectively, at fair value), net of allowance | 103,743 | | | 101,551 | |
| Total assets | $ | 2,416,676 | | | $ | 2,291,413 | |
Statement continues on the next page.
| | | | | |
| CONSOLIDATED BALANCE SHEET | Citigroup Inc. and Subsidiaries |
| (Continued) | |
| | | | | | | | | | | |
| December 31, |
| In millions of dollars, except shares and per share amounts | 2022 | | 2021 |
Liabilities |
| | |
| Deposits (including $1,875 and $1,666 as of December 31, 2022 and 2021, respectively, at fair value) | $ | 1,365,954 | | | $ | 1,317,230 | |
| Securities loaned and sold under agreements to repurchase (including $70,886 and $56,694 as of December 31, 2022 and 2021, respectively, at fair value) | 202,444 | | | 191,285 | |
| Brokerage payables (including $4,439 and $3,575 as of December 31, 2022 and 2021, respectively, at fair value) | 69,218 | | | 61,430 | |
| Trading account liabilities | 170,647 | | | 161,529 | |
| Short-term borrowings (including $6,222 and $7,358 as of December 31, 2022 and 2021, respectively, at fair value) | 47,096 | | | 27,973 | |
| Long-term debt (including $105,995 and $82,609 as of December 31, 2022 and 2021, respectively, at fair value) | 271,606 | | | 254,374 | |
| Other liabilities | 87,873 | | | 74,920 | |
| Total liabilities | $ | 2,214,838 | | | $ | 2,088,741 | |
Stockholders’ equity |
| | |
Preferred stock ($1.00 par value; authorized shares: 30 million), issued shares: 759,800 as of December 31, 2022 and 759,800 as of December 31, 2021, at aggregate liquidation value | $ | 18,995 | | | $ | 18,995 | |
Common stock ($0.01 par value; authorized shares: 6 billion), issued shares: 3,099,669,424 as of December 31, 2022 and 3,099,651,835 as of December 31, 2021 | 31 | | | 31 | |
| Additional paid-in capital | 108,458 | | | 108,003 | |
| Retained earnings | 194,734 | | | 184,948 | |
Treasury stock, at cost: 1,162,682,999 shares as of December 31, 2022 and 1,115,296,641 shares as of December 31, 2021 | (73,967) | | | (71,240) | |
| Accumulated other comprehensive income (loss) (AOCI) | (47,062) | | | (38,765) | |
Total Citigroup stockholders’ equity | $ | 201,189 | | | $ | 201,972 | |
Noncontrolling interests | $ | 649 | | | $ | 700 | |
| Total equity | $ | 201,838 | | | $ | 202,672 | |
| Total liabilities and equity | $ | 2,416,676 | | | $ | 2,291,413 | |
The Notes to the Consolidated Financial Statements are an integral part of these Consolidated Financial Statements.
THIS DOCUMENT IS IMPORTANT AND REQUIRES YOUR IMMEDIATE ATTENTION. If you are uncertain as to the action to be taken, you should immediately consult your own broker, bank manager, lawyer, accountant, investment adviser or other professional adviser.
LETTER OF TRANSMITTAL
relating to
F&G ANNUITIES & LIFE, INC.
Offer to Exchange
$500,000,000 aggregate principal amount of 7.400% Senior Notes due 2028
(CUSIP Nos. 30190A AA2 and U3152B AA0)
for
$500,000,000 aggregate principal amount of 7.400% Senior Notes due 2028
(CUSIP No. 30190A AC8)
that have been registered under the Securities Act of 1933, as amended (the “Securities Act”)
pursuant to the Prospectus, dated , 2023
| | |
The exchange offer (as defined below) will expire at 5:00 p.m., New York City time, on , 2023, unless extended by the Company (as defined below) (such date and time, as it may be extended, the “expiration date”). Tendered original notes (as defined below) may be withdrawn at any time at or prior to the expiration date. |
Delivery to:
D.F. King & Co., as Exchange Agent
48 Wall St
New York, NY 10005
Attn: Kristian Klein
Tel: +1.212.269.5550
Email: f&g@dfking.com
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY.
The undersigned acknowledges that the undersigned has received and reviewed the prospectus, dated , 2023 (the “Prospectus”), of F&G Annuities & Life, Inc., a Delaware corporation (the “Company”) and certain of its guarantors (the “Guarantors”), and this letter of transmittal (this “Letter of Transmittal”), which together constitute the Company’s offer to exchange (the “exchange offer”) up to $500,000,000 aggregate principal amount of the Company’s outstanding 7.400% Senior Notes due 2028 (CUSIP Nos. 30190A AA2 and U3152B AA0) (the “original notes”) for a like principal amount of the Company’s 7.400% Senior Notes due 2028 (CUSIP No. 30190A AC8) that have been registered under the Securities Act (the “exchange notes”). The original notes are unconditionally guaranteed (the “Old Guarantees”) and the exchange notes will be unconditionally guaranteed (the “New Guarantees”) by the Guarantors. Throughout this Letter of Transmittal, unless the context otherwise requires and whether so expressed or not, references to the “exchange offer” include the Guarantors’ offer to exchange the New Guarantees for the Old Guarantees, references to the “exchange notes” include the related New Guarantees and references to the “original notes” include the related Old Guarantees. Capitalized terms used but not defined herein shall have the respective meanings ascribed to them in the Prospectus.
For each original note accepted for exchange, the holder of such original note will receive an exchange note having a principal amount equal to that of the surrendered original note. Holders of exchange notes will receive interest accruing from the original issuance date of the original notes (January 13, 2023) or the most recent interest payment date on which interest has been paid or duly provided for. Original notes accepted for exchange will cease to accrue interest from and after the date of completion of the exchange offer. Holders of original notes whose original notes are accepted for exchange will not receive any payment for accrued interest on the original notes
otherwise payable on any interest payment date, the record date for which occurs on or after completion of the exchange offer and will be deemed to have waived their rights to receive the accrued interest on the original notes.
Original notes tendered prior to the expiration date may be withdrawn at any time at or prior to the expiration date.
This Letter of Transmittal is to be completed by a holder of original notes if a tender of original notes is to be made by book-entry transfer to the account maintained by D.F. King & Co., as exchange agent (the “Exchange Agent”), at The Depository Trust Company (“DTC”) pursuant to the procedures set forth in the sections of the Prospectus entitled “The Exchange Offer-Procedures for Tendering,” “—Book-Entry Transfer” and “—Exchanging Book-Entry Notes” and an agent’s message (as defined below) is not delivered. Tenders by book-entry transfer also may be made by delivering an agent’s message in lieu of this Letter of Transmittal. The term “agent’s message” means a message transmitted by DTC to and received by the Exchange Agent and forming a part of the confirmation of the book-entry tender of original notes into the Exchange Agent’s account at DTC (a “book-entry confirmation”), which states that DTC has received an express acknowledgment from the tendering participant that such participant has received and agrees to be bound by this Letter of Transmittal and that the Company may enforce this Letter of Transmittal against such participant.
Delivery of documents to DTC does not constitute delivery to the Exchange Agent.
The undersigned has completed the appropriate boxes below and signed this Letter of Transmittal to indicate the action the undersigned desires to take with respect to the exchange offer.
List below the original notes to which this Letter of Transmittal relates. If the space provided below is inadequate, certificate numbers and principal amount of original notes should be listed on a separate signed schedule affixed hereto.
| | | | | | | | | | | |
| Description of Original Notes | 1 | 2 | 3 |
Name(s) and Address(es) of Holder(s) (Please fill in, if blank) | Certificate Numbers* | Aggregate
Principal
Amount
of Original Notes | Principal
Amount
of Original Notes
Tendered** |
| | | |
| | | |
| | | |
* Need not be completed if original notes are being tendered by book-entry transfer. ** Unless otherwise indicated in this column, a holder will be deemed to have tendered ALL of the original notes represented by the original notes indicated in column 2. See Instruction 2. Original notes tendered hereby must be in denominations of principal amount of $2,000 and any integral multiples of $1,000 in excess thereof. See Instruction 1. |
| | | | | | | | |
| ¨ | CHECK HERE IF TENDERED ORIGINAL NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE DEPOSITORY TRUST COMPANY AND COMPLETE THE FOLLOWING: |
| | | | | | | | |
| Name of Tendering Institution: | | |
| Account Number: | | |
| Transaction Code Number: | | |
By crediting the original notes to the Exchange Agent’s account at DTC’s Automated Tender Offer Program (“ATOP”) and by complying with applicable ATOP procedures with respect to the exchange offer, including, if applicable, transmitting to the Exchange Agent a computer-generated agent’s message in which the holder of the original notes acknowledges and agrees to be bound by the terms of, and makes the representations and warranties contained in, this Letter of Transmittal, the participant in DTC confirms on behalf of itself and the beneficial owner(s) of such original notes all provisions of this Letter of Transmittal (including all representations
and warranties) applicable to it and such beneficial owner(s) as fully as if it had completed the information required herein and executed and transmitted this Letter of Transmittal to the Exchange Agent.
| | | | | | | | |
| ¨ | CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO. |
| | | | | | | | |
| Name: | | |
| Address: | | |
| Telephone: | | |
| Email: | | |
The undersigned represents that it is not participating, does not intend to participate, and has no arrangement or understanding with anyone to participate, in the distribution (within the meaning of the Securities Act) of the exchange notes. If the undersigned is a broker-dealer that will receive exchange notes for its own account in exchange for original notes that were acquired as a result of market-making activities or other trading activities, it represents and acknowledges that it will deliver a prospectus (or to the extent permitted by law, make available a prospectus to purchasers) in connection with any resale of such exchange notes; however, by so acknowledging and by delivering such a prospectus, the undersigned will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. In addition, such broker-dealer represents that it is not acting on behalf of any person who could not truthfully make the foregoing representations.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the exchange offer, the undersigned hereby tenders to the Company the aggregate principal amount of original notes indicated above. Subject to, and effective upon, the acceptance for exchange of such original notes tendered hereby, the undersigned hereby sells, assigns and transfers to, or upon the order of, the Company all right, title and interest in and to such original notes as are being tendered hereby.
The undersigned hereby irrevocably constitutes and appoints the Exchange Agent as the undersigned’s true and lawful agent and attorney-in-fact with respect to such tendered original notes, with full power of substitution, among other things, to cause the original notes to be assigned, transferred and exchanged. The undersigned hereby represents and warrants that the undersigned has full power and authority to tender, sell, assign and transfer such original notes, and to acquire exchange notes issuable upon the exchange of such tendered original notes, and that, when such original notes are accepted for exchange, the Company will acquire good and unencumbered title thereto, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claim when the same are accepted by the Company. The undersigned hereby further represents that the exchange notes acquired hereby will be acquired in the ordinary course of its business, that it is not participating, does not intend to participate, and has no arrangement or understanding with anyone to participate, in the distribution (within the meaning of the Securities Act) of such exchange notes, that it is not an “affiliate” of the Company (as defined in Rule 405 under the Securities Act), and that it is not acting on behalf of any person who could not truthfully make the foregoing representations and warranties.
The Securities and Exchange Commission (the “SEC”) has taken the position that broker-dealers may fulfill their prospectus delivery requirements with respect to the exchange notes (other than a resale of exchange notes received in exchange for an unsold allotment from the original sale of the original notes) with the Prospectus. The Prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of exchange notes received in exchange for original notes where such original notes were acquired as a result of market-making activities or other trading activities. The Company has agreed that, for a period of 180 days after the expiration date, the Company will make the Prospectus, as amended or supplemented, available to any broker-dealer for use in connection with any such resale. By accepting the exchange offer, each broker-dealer that receives exchange notes pursuant to such exchange offer acknowledges and agrees to notify the Company prior to using the Prospectus in connection with the sale or transfer of such exchange notes and that, upon receipt of notice from the Company of the happening of any event that makes any statement in the Prospectus untrue in any material respect or that requires the making of any changes in the Prospectus in order to make the statements therein (in the light of the circumstances under which they were made) not misleading, such broker-dealer will suspend use of the Prospectus until (i) the Company has amended or supplemented the Prospectus to correct such misstatement or omission and (ii) either the Company has furnished copies of the amended or supplemented Prospectus to such broker-dealer or, if the Company has not otherwise agreed to furnish such copies and declines to do so after such broker-dealer so requests, such broker-dealer has obtained a copy of such amended or supplemented Prospectus as filed with the SEC. Except as described above, the Prospectus may not be used for or in connection with an offer to resell, a resale or any other retransfer of exchange notes. A broker-dealer that acquired original notes in a transaction other than as part of its market-making activities or other trading activities will not be able to participate in the exchange offer.
The undersigned acknowledges that the exchange offer is being made upon the belief that, based on interpretations by the SEC staff as set forth in a series of no-action letters issued to third parties, the exchange notes issued pursuant to the exchange offer in exchange for the original notes may be offered for resale, resold and otherwise transferred by holders thereof (other than holders that are broker-dealers) without further compliance with the registration and prospectus delivery provisions of the Securities Act. The SEC, however, has not considered the exchange offer in the context of a no-action letter and there can be no assurance that the SEC staff would make a similar determination with respect to the exchange offer as in other circumstances. The undersigned represents that it is not participating, does not intend to participate, and has no arrangement or understanding with anyone to participate, in a distribution of exchange notes. If any holder of the original notes is an “affiliate” of the Company (as defined in Rule 405 under the Securities Act) or intends to participate in the exchange offer for the purpose of distributing any of the exchange notes, or is a broker-dealer that purchased any of the original notes from the Company for resale pursuant to Rule 144A or any other available exemption under the Securities Act, such holder
(i) could not rely on the applicable interpretations of the SEC staff, (ii) will not be able to tender its original notes in the exchange offer and (iii) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any sale or transfer of original notes unless such sale or transfer is made pursuant to an exemption from such requirements. If the undersigned is a broker-dealer that will receive exchange notes for its own account in exchange for original notes that were acquired as a result of market-making activities or other trading activities, it represents and acknowledges that it will deliver a prospectus (or to the extent permitted by law, make a prospectus available to purchasers) in connection with any resale of such exchange notes; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.
The undersigned will, upon request, execute and deliver any additional documents deemed by the Company to be necessary or desirable to complete the sale, assignment and transfer of the original notes tendered hereby. All authority conferred or agreed to be conferred in this Letter of Transmittal and every obligation of the undersigned hereunder shall be binding upon the successors, assigns, heirs, executors, administrators, trustees in bankruptcy and legal representatives of the undersigned and shall not be affected by, and shall survive, the death or incapacity of the undersigned. This tender may be withdrawn only in accordance with the procedures set forth in “The Exchange Offer-Withdrawal Rights” section of the Prospectus.
Unless otherwise indicated herein in the box entitled “Special Issuance Instructions” below, please deliver the relevant exchange notes (and, if applicable, substitute certificates representing original notes for any original notes not exchanged) in the name of the undersigned, or in the case of a book-entry delivery of original notes, please credit the account indicated above maintained at DTC. Similarly, unless otherwise indicated under the box entitled “Special Delivery Instructions” below, please send the relevant exchange notes (and, if applicable, substitute certificates representing original notes for any original notes not exchanged) to the undersigned at the address shown above in the box entitled “Description of Original Notes.”
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED “DESCRIPTION OF ORIGINAL NOTES” ABOVE AND SIGNING THIS LETTER OF TRANSMITTAL WILL BE DEEMED TO HAVE TENDERED THE ORIGINAL NOTES AS SET FORTH IN SUCH BOX ABOVE.
| | | | | | | | | | | | | | | | | | | | |
SPECIAL ISSUANCE INSTRUCTIONS (See Instructions 3 and 4) | | | SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 3 and 4) | |
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| To be completed ONLY if certificates for original notes not exchanged and/or exchange notes are to be issued in the name of and sent to someone other than the person(s) whose signature(s) appear(s) on this Letter of Transmittal above, or if original notes delivered by book-entry transfer that are not accepted for exchange are to be returned by credit to an account maintained at DTC other than the account indicated above. | | | To be completed ONLY if certificates for original notes not exchanged and/or exchange notes are to be sent to someone other than the person(s) whose signature(s) appear(s) on this Letter of Transmittal above or to such person(s) at an address other than shown in the box entitled “Description of Original Notes” on this Letter of Transmittal above. | |
| | | | Mail exchange notes and/or original notes to: | |
| Issue exchange notes and/or original notes to: | | | | | |
| | | | Name(s): | | |
| Name(s): |
| | | (Please type or print) | |
| (Please type or print) | | | | | |
| | | | Address: | | |
| Address: |
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| | | | (Please type or print, including zip code) | |
| (Please type or print, including zip code) | | | | | |
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¨ Credit unexchanged original notes delivered by book-entry transfer to the DTC account set forth below. | | | | | |
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| (DTC Account Number, if applicable) | | | | | |
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A FACSIMILE HEREOF OR AN AGENT’S MESSAGE IN LIEU THEREOF (TOGETHER WITH THE CERTIFICATES FOR ORIGINAL NOTES OR A BOOK-ENTRY CONFIRMATION AND ALL OTHER REQUIRED DOCUMENTS) MUST BE RECEIVED BY THE EXCHANGE AGENT PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL
CAREFULLY BEFORE COMPLETING ANY BOX ABOVE.
PLEASE SIGN HERE
(TO BE COMPLETED BY ALL TENDERING HOLDERS)
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| X | | | | , 2023 |
| X | | | | , 2023 |
| (Signature(s) of Owner) | | (Date) | |
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Area Code and Telephone Number: | |
If a holder is tendering any original notes, this Letter of Transmittal must be signed by the registered holder(s) as the name(s) appear(s) on the certificate(s) for the original notes or on the security position listing of DTC or by any person(s) authorized to become registered holder(s) by endorsements and documents transmitted herewith. If signature is by a trustee, executor, administrator, guardian, officer or other person acting in a fiduciary or representative capacity, please set forth full title. See Instruction 3.
(Please type or print)
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| Name(s): | |
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| Capacity: | |
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Address: | |
(Including zip code)
SIGNATURE GUARANTEE
(If required by Instruction 3)
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Signature(s) Guaranteed
by an Eligible Institution: | | |
| | (Authorized Signature) |
| | (Type or print name and title) |
| | (Type or print name of firm) |
INSTRUCTIONS
Forming Part of the Terms and Conditions of the Exchange Offer
1. Delivery of this Letter of Transmittal and Original Notes.
This Letter of Transmittal is to be completed by holders of original notes either if certificates are to be forwarded herewith or if tenders are to be made pursuant to the procedures for delivery by book-entry transfer set forth in “The Exchange Offer-Book-Entry Transfer” section of the Prospectus and an agent’s message is not delivered. Tenders by book-entry transfer may also be made by delivering an agent’s message in lieu of this Letter of Transmittal. The term “agent’s message” means a message, transmitted by DTC to and received by the Exchange Agent and forming a part of a book-entry confirmation, which states that DTC has received an express acknowledgment from the tendering participant that such participant has received and agrees to be bound by, and makes the representations and warranties contained in, this Letter of Transmittal and that the Company may enforce this Letter of Transmittal against such participant. Certificates for all physically tendered original notes, or book-entry confirmation, as the case may be, as well as a properly completed and duly executed Letter of Transmittal (or manually signed facsimile hereof or agent’s message in lieu thereof) and any other documents required by this Letter of Transmittal, must be received by the Exchange Agent at the address set forth herein at or prior to the expiration date. Original notes tendered hereby must be in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
The method of delivery of this Letter of Transmittal, the original notes and all other required documents is at the election and risk of the tendering holders, but the delivery will be deemed made only when actually received or confirmed by the Exchange Agent. If original notes are sent by mail, it is suggested that the mailing be registered mail, properly insured, with return receipt requested, made sufficiently in advance of the expiration date to permit delivery to the Exchange Agent at or prior to 5:00 p.m., New York City time, on the expiration date. The Company reserves the right to reject any particular original note not properly tendered, or any acceptance that might, in the Company’s judgment or its counsel’s judgment, be unlawful. The Company also reserves the right to waive any defects or irregularities with respect to the form or procedures applicable to the tender of any particular original note at or prior to the expiration date. Unless waived, any defects or irregularities in connection with tenders of original notes must be cured within a reasonable period of time prior to the expiration date.
See “The Exchange Offer” section of the Prospectus.
2. Partial Tenders (not applicable to holders that tender by book-entry transfer).
If less than all of the original notes evidenced by a submitted certificate are to be tendered, the tendering holder(s) should fill in the aggregate principal amount of original notes to be tendered in the boxes above entitled “Description of Original Notes-Principal Amount of Original Notes Tendered.” A reissued certificate representing the balance of nontendered original notes will be sent to such tendering holder, unless otherwise provided in the appropriate box on this Letter of Transmittal, promptly after the expiration date. All of the original notes delivered to the Exchange Agent will be deemed to have been tendered unless otherwise indicated.
3. Signatures on this Letter of Transmittal; Bond Powers and Endorsements; Guarantee of Signatures.
If this Letter of Transmittal is signed by the registered holder of the original notes tendered hereby, the signature must correspond exactly with the name as written on the face of the certificates or as written on DTC’s security position listing as the holder of such original notes, as applicable, without any change whatsoever.
If any tendered original notes are owned of record by two or more joint owners, all of such owners must sign this Letter of Transmittal.
If any tendered original notes are registered in different names on several certificates, it will be necessary to complete, sign and submit as many separate copies of this Letter of Transmittal as there are different registrations of certificates.
When this Letter of Transmittal is signed by the registered holder or holders of the original notes specified herein and tendered hereby, no endorsements of certificates or separate bond powers are required. If, however, the exchange notes are to be issued, or any untendered original notes are to be reissued, to a person other than the registered holder, then endorsements of any certificates transmitted hereby or separate bond powers are required. Signatures on such certificate(s) must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the registered holder or holders of any certificate(s) specified herein, such certificate(s) must be endorsed or accompanied by appropriate bond powers, in either case signed exactly as the name or names of the registered holder or holders appear(s) on the certificate(s) and signatures on such certificate(s) must be guaranteed by an Eligible Institution.
If this Letter of Transmittal or any certificates or bond powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing, and, unless waived by the Company, proper evidence satisfactory to the Company of their authority to so act must be submitted.
Endorsements on certificates for original notes or signatures on bond powers required by this Instruction 3 must be guaranteed by a firm that is a financial institution (including most banks, savings and loan associations and brokerage houses) that is a participant in the Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchanges Medallion Program (each an “Eligible Institution”).
Signatures on this Letter of Transmittal need not be guaranteed by an Eligible Institution, provided the original notes are tendered: (i) by a registered holder of original notes (which term, for purposes of the exchange offer, includes any participant in the DTC system whose name appears on a security position listing as the holder of such original notes) who has not completed the box entitled “Special Issuance Instructions” or “Special Delivery Instructions” on this Letter of Transmittal or (ii) for the account of an Eligible Institution.
4. Special Issuance and Delivery Instructions.
Tendering holders of original notes should indicate in the applicable box(es) the name and address to which exchange notes issued pursuant to the exchange offer and/or substitute certificates evidencing original notes not exchanged are to be issued or sent, if different from the name or address of the person signing this Letter of Transmittal. In the case of issuance in a different name, the employer identification or social security number of the person named must also be indicated. Holders tendering original notes by book-entry transfer may request that original notes not exchanged be credited to such account maintained at DTC as such holder may designate hereon. If no such instructions are given, such original notes not exchanged will be returned to the name and address of the person signing this Letter of Transmittal.
5. Transfer Taxes.
Except as set forth in this Instruction 5, the Company will pay all transfer taxes, if any, applicable to the transfer of original notes to it or its order pursuant to the exchange offer. If, however, exchange notes and/or substitute original notes not exchanged are to be delivered to, or are to be registered or issued in the name of, any person other than the registered holder of the original notes tendered hereby, or if tendered original notes are registered in the name of any person other than the person signing this Letter of Transmittal or if a transfer tax is imposed for any reason other than the transfer of original notes to the Company or its order pursuant to the exchange offer, the amount of any such transfer taxes (whether imposed on the registered holder or any other persons) will be payable by the tendering holder. If satisfactory evidence of payment of such taxes or exemption therefrom is not submitted herewith, the amount of such transfer taxes will be billed directly to such tendering holder.
Except as provided in this Instruction 5, it will not be necessary for transfer tax stamps to be affixed to the original notes specified in this Letter of Transmittal.
6. Waiver of Conditions.
Because the Company may amend or modify the exchange offer, and such amendment or modification may be deemed to be a waiver of a condition, it has the right to waive satisfaction of conditions enumerated in the Prospectus. Accordingly, the Company has effectively retained the ability to waive the conditions to consummation of the exchange offer.
7. No Conditional Tenders.
No alternative, conditional, irregular or contingent tenders will be accepted. All tendering holders of original notes, by execution of this Letter of Transmittal or an agent’s message in lieu thereof, shall waive any right to receive notice of the acceptance of their original notes for exchange.
None of the Company, the Exchange Agent or any other person is obligated to give notice of any defect or irregularity with respect to any tender of original notes nor shall any of them incur any liability for failure to give any such notice.
8. Mutilated, Lost, Stolen or Destroyed Original Notes.
Any holder whose original notes have been mutilated, lost, stolen or destroyed should contact the Exchange Agent at the address indicated above for further instructions.
9. Withdrawal Rights.
Tenders of original notes may be withdrawn at any time at or prior to 5:00 p.m., New York City time, on the expiration date.
For a withdrawal of a tender of original notes to be effective, a written notice of withdrawal must be received by the Exchange Agent at the address set forth above at or prior to 5:00 p.m., New York City time, on the expiration date. Any such notice of withdrawal must (i) specify the name of the person having tendered the original notes to be withdrawn (the “Depositor”), (ii) identify the original notes to be withdrawn (including the certificate number or numbers and the principal amount of such original notes), (iii) contain a statement that such holder is withdrawing his election to have such original notes exchanged, (iv) be signed by the holder in the same manner as the original signature on this Letter of Transmittal by which such original notes were tendered (including any required signature guarantees) or be accompanied by documents of transfer to have the Trustee register the transfer of such original notes in the name of the person withdrawing the tender, together with satisfactory evidence of payment of applicable transfer taxes or exemption therefrom, and (v) specify the name in which such original notes are registered, if different from that of the Depositor. If original notes have been tendered pursuant to the procedure for book-entry transfer set forth in “The Exchange Offer-Book-Entry Transfer” section of the Prospectus, any notice of withdrawal must specify the name and number of the account at DTC to be credited with the withdrawn original notes and otherwise comply with the procedures of DTC. All questions as to the validity, form and eligibility (including time of receipt) of such notices will be determined by the Company, whose determination shall be final and binding on all parties. Any original notes so withdrawn will be deemed not to have been validly tendered for exchange for purposes of the exchange offer, and no exchange notes will be issued with respect thereto unless the original notes so withdrawn are validly re-tendered. Any original notes that have been tendered for exchange but which are not exchanged for any reason will be returned to the holder thereof without cost to such holder (or, in the case of original notes tendered by book-entry transfer into the Exchange Agent’s account at DTC pursuant to the book-entry transfer procedures set forth in “The Exchange Offer-Book-Entry Transfer” section of the Prospectus, such original notes will be credited to an account maintained with DTC for the original notes) promptly after withdrawal, rejection of tender or termination of the exchange offer. Properly withdrawn original notes may be re-tendered by following the procedures described above at any time at or prior to 5:00 p.m., New York City time, on the expiration date.
10. Requests for Assistance or Additional Copies.
Questions relating to the procedure for tendering original notes, as well as requests for additional copies of the Prospectus and this Letter of Transmittal and requests for other related documents, may be directed to the Exchange Agent, at the address and telephone number set forth herein.
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