ATHENE HOLDING LTD. Item 1.01 Entry into a Definitive Material Agreement.
Explanatory Note
As previously disclosed, on
As previously disclosed, on
Shareholders Agreement
In connection with the consummation of the Share Issuance and the Multi-Class Share Elimination, the Company entered into the Shareholders Agreement, dated as of the Closing Date, with the entities comprising the AOG that hold Class A Common Shares of the Company (such entities, the "Apollo Shareholders" and such agreement, the "Shareholders Agreement").
Nomination Rights. Pursuant to the Shareholders Agreement, the Apollo Shareholders will have the right to nominate a number of individuals for election to the Board (the "Apollo Nominees") at each election in proportion to the number of Class A Common Shares held or beneficially owned by the Apollo Shareholders (including any Class A Common Shares to which a valid proxy has been granted to any Apollo Shareholder), rounded up to the nearest whole number minus the number of directors nominated by the Apollo Shareholders then serving on the Board on classes of directors whose terms are not expiring at such annual or special general meeting. The Company will reasonably cooperate with, and use commercially reasonable efforts to assist, the Apollo Shareholders to cause the election of the Apollo Nominees to the Board. The Apollo Shareholders' right to nominate the Apollo Nominees will terminate on the earlier of (i) the Apollo Shareholders, controlled affiliates of AGM and each employee and consultant to AGM and the controlled affiliates of AGM no longer continuing to hold or beneficially own (excluding any Class A Common Shares to which a valid proxy has been granted to any of the Apollo Shareholders by any employee of the Company) at least 7.5% of the issued and outstanding Class A Common Shares or (ii) the Apollo Shareholders no longer continuing to hold or beneficially own (including any Class A Common Shares to which a valid proxy has been granted to any Apollo Shareholder) at least 5% of the issued and outstanding Class A Common Shares.
Lock-Up, ROFO and Transfer Restrictions. Pursuant to the Shareholders Agreement, for 3 years after the Closing Date (the "Lock-Up Period"), the Apollo Shareholders may not transfer any Class A Common Shares except (i) after consultation with the Company, and subject to receipt of all required regulatory approvals, to certain
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affiliates and other controlled entities (who will be permitted transferees under the Shareholders Agreement) or (ii) in connection with certain permitted hedging transactions. From and after the expiration of the Lock-Up Period, subject to certain exceptions, the Company will generally have a right of first offer to purchase any Class A Common Shares that any Apollo Shareholder elects to sell (other than to a permitted transferee). If the Company does not exercise its right of first offer, then the Apollo Shareholders will be permitted to transfer their Class A Common Shares, provided that, subject to certain exceptions, the Apollo Shareholders will be prohibited from transferring Class A Common Shares to any competitor of the Company or to any person that would, after giving effect to the transfer, hold 2.5% or more of the issued and outstanding Class A Common Shares.
Facility Right. The Company granted
Item 3.02 Unregistered Sales of
The information set forth under Item 1.01 of this report is incorporated by reference into this Item 3.02. The Class A Common Shares issued pursuant to the Transaction Agreement have not been registered under the Act, and the transactions set forth under Item 1.01 of this report have been taken in reliance upon the exemption from the registration requirements of the Act provided by Section 4(a)(2) thereof as transactions by an issuer not involving any public offering.
Item 3.03 Material Modification to Rights of Security Holders.
The information set forth under Items 1.01 and 5.03 of this report is incorporated by reference into this Item 3.03.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
As previously disclosed, on
• Eliminate the multi-class common share structure of the Company;
• Modify the voting cutback that is applicable to persons who own, or are
treated as owning, Class A Common Shares that represent more than 9.9% of
the total voting power of the Company (the "9.9% Voting Cutback"). As
modified, the 9.9% Voting Cutback applies to limit to 9.9% the voting power
of the Company owned by persons who, together with their affiliates,
beneficially own more than 9.9% of the voting power of the Company, subject
to exemptions as authorized by (i) until March 31, 2021 , 70% of the board
of directors of the Company (the "Board") and (ii) after March 31, 2021 ,
75%, of the Board. The Board is also granted authority to eliminate the
9.9% Voting Cutback, as authorized by (i) until March 31, 2021 , 70% of the
Board and (ii) after March 31, 2021 , 75%, of the Board. In connection with
such amendments, the Board has (i) resolved to exempt shares beneficially
owned by the Apollo Group (as
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defined in the Bye-laws) from the 9.9% Voting Cutback and (ii) delegated
authority to the Company's independent directors to eliminate the
applicability of the 9.9% Voting Cutback altogether in the event that they
determine that it is the sole impediment to the Class A Common Shares being
listed on the Standard & Poor's 500 Stock Index (or, if Standard & Poor's
then maintains any index with broader representation in terms of market
capitalization and number of companies represented, such other index);
• Modify and narrow the existing rule that deems certain Class A Common
Shares to be non-voting so that it applies only when the 9.9% Voting
Cutback is in effect with respect to one or more persons and only to
Class A Common Shares owned, or treated as owned, by persons (other than
AGM, its affiliates, and persons who have granted AGM a valid proxy) who
own, or are treated as owning, shares of AGM;
• Add a voting cutback that would apply only when the 9.9% Voting Cutback is
in effect with respect to one or more persons and would limit to 49.9% the
voting power of the Company owned, or treated as owned, by certain persons
or groups of persons who do not own more than 50% of the value of the
Company's shares;
• Add certain procedural requirements necessary for shareholders to take
action by written resolution;
• Permit certain provisions relating to the nomination of directors to be
modified by the Shareholders Agreement;
• Eliminate certain transfer restrictions applicable to transfers of common
shares of the Company that would result in 19.9% or more of the total
voting power or value of the Company being owned, or treated as owned, by
persons who are either (i) both "United States shareholders" of the Company
under Section 953(c) of the Internal Revenue Code of 1986, as amended (the
"Code"), and Related Insured Entities (as defined in the Bye-laws) or
(ii) both related to "United States shareholders" of the Company under
Section 953(c) of the Code and Related Insured Entities;
• Make technical modifications to the restrictions on transactions between
the Company and the Apollo Group (as defined in the Bye-laws) as a result
of the elimination of the multi-class common share structure of the
Company;
• Modify the provisions of the Bye-laws that require the Company to refer the
subject matter of certain matters with respect to its subsidiaries upon
which it has the right to vote to its shareholders, and vote in accordance
with the votes of its shareholders, so that those provisions apply only
when the 9.9% Voting Cutback is in effect with respect to one or more
persons; and
• Update the list of insurance subsidiaries and ceding companies attached as
Schedule 1 to the Bye-laws.
The Thirteenth Amended and Restated Bye-laws became effective upon the closing of the Share Issuance on the Closing Date. The foregoing description of the Thirteenth Amended and Restated Bye-laws is not complete and is qualified in its entirety by reference to the Thirteenth Amended and Restated Bye-Laws of the Company, which are filed as Exhibit 3.1 hereto in unmarked form and as Exhibit 3.2 hereto in redline form showing the amendments referred to above and are incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits 3.1 Thirteenth Amended and Restated Bye-laws, effectiveFebruary 28, 2020 3.2 Thirteenth Amended and Restated Bye-laws, redlined for amendments, effectiveFebruary 28, 2020 104 Cover Page Interactive Data File (embedded within the Inline XBRL document).
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