UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Assured Guaranty Ltd.
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(Exact name of registrant as specified in its charter)
Bermuda 98-0429991
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(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
Assured Guaranty Ltd. Employee Stock Purchase Plan
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(Full title of the plan)
James Michener
Assured Guaranty Ltd.
c/o CT Corporation System
111 Eighth Avenue, 13th Floor
New York, New York 10011
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(Name and address of agent for service)
(441) 296-4004
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(Telephone number, including area code, of agent for service)
copy to:
Laura D. Richman
Mayer, Brown, Rowe & Maw LLP
190 S. LaSalle Street
Chicago, Illinois 60603
CALCULATION OF REGISTRATION FEE
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Proposed maximum
Title of securities Amount to offering price per Proposed maximum Amount of
to be registered be registered share(1) aggregate price registration fee
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Common Shares
$.01 par value 100,000 $18.425 $1,842,500 $217
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(1) Estimated solely for the purpose of computing the registration fee pursuant to Rule 457(h)
and 457(c) under the Securities Act of 1933 on the basis of the average of the high and low
prices of the Common Shares reported on the New York Stock Exchange Composite Tape on
January 24, 2005.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have heretofore been filed by the
Registrant with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Act of 1933 (the "Act") and the Securities Exchange
Act of 1934 (the "Exchange Act"), are incorporated by reference herein and shall
be deemed to be a part hereof:
(a) Registrants prospectus filed on April 23, 2004 pursuant to Rule
424(b)(1) of the Act (File No. 333-111491), which contains audited
financial statements for the Registrants latest fiscal year for
which such statements have been filed.
(b) Description of Common Shares included in the Registration
Statement on Form 8-A dated April 15, 2004 filed under Section 12
of the Exchange Act.
(c) Form 10-Q for the quarter ended March 31, 2004.
(d) Form 10-Q for the quarter ended June 30, 2004.
(e) Form 10-Q for the quarter ended September 30, 2004.
(f) Form 8-K filed December 17, 2004.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold shall be deemed
to be incorporated herein by reference and shall be deemed a part hereof from
the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Bye-law 30 of the Registrant's Bye-Laws provides, among other things,
that the directors, secretary, other officers (such term to include for purposes
of Bye-laws 30 and 31 any person appointed to any committee by the board of
directors and any person who is or was serving at the request of the Registrant
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise) and the resident representative for
the time being acting in relation to any of the affairs of the Registrant and
the liquidator or trustees (if any) for the time being acting in relation to any
of the affairs of the Registrant and every one of them, and their heirs,
executors and administrators: (i) shall be indemnified and secured harmless out
of the assets of the Registrant 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 Registrant shall
or may be lodged or deposited for safe custody, or for insufficiency or
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deficiency of any security upon which any moneys of or belonging to the
Registrant 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 fraud or dishonesty; (ii) shall not be
liable for the acts, receipts, neglects or defaults of any other director or
officer or other person, or for any loss or expense incurred by the Registrant
through the insufficiency or deficiency of title to any property acquired by
the board of directors for or on behalf of the Registrant, or for the
insufficiency or deficiency of any security in or upon which any of the monies
of the Registrant is invested, or for any loss or damage arising from the
bankruptcy, insolvency or tortious act of any person with whom any monies,
securities or effects is deposited, or for any loss occasioned by any error of
judgment, omission, default or oversight on his or her part, or for any other
loss, damage or misfortune whatever which shall happen in relation to the
execution of the duties of his or her office, or in relation thereto, unless
the same happens through fraud or dishonesty on his or her part; and (iii)
shall be indemnified out of the assets of the Registrant against all
liabilities, losses, costs and expenses which he or she or any of his or her
heirs, executors or administrators, incur or may incur or sustain, by or by
reason of any act, by such person, or other person or a collective of persons
(including without limitation the board of directors) or by the Registrant,
done, concurred in or omitted in or about the execution of his, her or their
duty, or supposed duty, or in his, her or their respective offices or trusts,
in defending or appearing or giving evidence in any proceedings (such term to
include, for the purposes of Bye-law 30, threatened proceedings,
investigations and enquiries, whether by a regulatory authority, prosecutions
authority or otherwise), whether civil or criminal, including where
allegations of fraud and dishonesty are made against such director or other
person, and, the Registrant shall pay to or on behalf of such director or
other person any and all funds associated in defending or appearing or giving
evidence in such proceedings (including without limitation independent
representation and counseling by an attorney or other professional selected by
such director or other person concerned) as and when such liabilities, losses,
costs and expenses are incurred, provided that in the event of a finding of
fraud or dishonesty (such fraud or dishonesty having been established in a
final judgment or decree not subject to appeal), such director or other person
shall reimburse to the Registrant all funds paid by the Registrant in respect
of liabilities, losses, costs and expenses of defending such proceedings. The
provisions of Bye- law 30 (and Bye-law 31) shall apply to, and for the benefit
of, any person acting as (or with the reasonable belief that he or she will be
appointed or elected as) a director, secretary, other officer, the resident
representative, or liquidator or trustee in the reasonable belief that he or
she has been so appointed or elected notwithstanding any defect in such
appointment or election and to any person who is no longer, but at one time
was, a director, secretary, other officer, resident representative or
liquidator or trustee of the Registrant.
Bye-law 31 of the Registrant's Bye-Laws provides that the Registrant and
each shareholder agree to waive any claim or right of action it might have,
whether individually or by or in the right of the Registrant, against any
director, secretary, other officer, resident representative or liquidator or
trustee of the Registrant on account of any action taken by such director or
other such person, or the failure of such director or other such person to take
any action in the performance of his or her duties with or for the Registrant,
provided that such waiver shall not extend to any matter in respect of any fraud
or dishonesty which may attach to such director or other such person.
The Bermuda Companies Act 1981, as amended (the "Companies Act"),
provides that a Bermuda company may indemnify its directors and officers in
respect of any loss arising or liability attaching to them as a result of any
negligence, default, breach of duty or breach of trust of which they may be
guilty. However, the Companies Act also provides that any provision, whether
contained in the company's bye-laws or in a contract or arrangement between
the company and the director or officers, indemnifying such director or
officers against any liability which would attach to him in respect of his
fraud or dishonesty will be void. The Registrant has purchased directors and
officers liability insurance policies. Such insurance would be available to
the Registrant's directors and officers in accordance with its terms. In
addition, certain directors may be covered by directors and officers liability
insurance policies purchased by their respective employers.
The Registrant has entered into a certain underwriting agreement
(included as Exhibit 1.1 in the registration statement on Form S-1 (File No.
333-111491) of the Registrant) which provides that the underwriters are
obligated, under certain circumstances, to indemnify the directors, certain
officers and the controlling persons of the Registrant against certain
liabilities under the Securities Act of 1933, as amended.
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Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Certificate of Incorporation and Memorandum of Association
of the Registrant (Incorporated by reference to Exhibit 3.1
to the Registrant's Registration Statement on Form S-1
(File No. 333-111491), as amended)
4.2 Bye-laws of the Registrant (Incorporated by reference to
Exhibit 3.2 to the Registrant's Registration Statement on
Form S-1 (File No. 333-111491), as amended)
4.3 Specimen Common Share Certificate (Incorporated by reference
to Exhibit 4.1 to the Registrant's Registration Statement on
Form S-1 (File No. 333-111491), as amended)
5.1 Opinion of Conyers Dill & Pearman as to the legality of the
Common Shares
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Conyers Dill & Pearman (included in Exhibit 5.1)
24.1 Powers of Attorney (included in signature pages)
99.1 Form F-N
Item 9. Undertakings.
A. Rule 415 Offering.
The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(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;
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(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; provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3, Form
S-8 or Form F-3, and the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the registrant
pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in
the 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.
B. Filings Incorporating Subsequent Exchange Act Documents by Reference.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Indemnification of Directors and Officers.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of
expenses incurred or paid by a director, officer or controlling person
of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will,
unless in the opinion of 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 Securities Act of 1933 and will be governed by the
final adjudication of such issue.
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SIGNATURES
Each person whose signature appears below constitutes and appoints
Dominic Frederico, Robert B. Mills and James M. Michener and each of them, the
true and lawful attorneys-in-fact and agents of the undersigned, with full power
of substitution and resubstitution, for and in the name, place and stead of the
undersigned, in any and all capacities, to sign any and all amendments
(including post-effective amendments) 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, and hereby grants to
such attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done,
full to all intents and purposes as the undersigned might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, or their or his substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Hamilton, Bermuda, on January 5, 2005.
Assured Guaranty Ltd.
By: /s/ James M. Michener
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James M. Michener
Its: General Counsel and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
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/s/ Donald Kramer Chairman; Director December 22, 2004
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Donald Kramer
/s/ Dominic Frederico President and Chief Executive Officer; December 22, 2004
---------------------- Deputy Chairman
Dominic Frederico
/s/ Robert B. Mills Chief Financial Officer December 22, 2004
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Robert B. Mills
/s/ Neil Baron Director December 23, 2004
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Neil Baron
/s/ G. Lawrence Buhl Director December 23, 2004
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G. Lawrence Buhl
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Signature Title Date
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/s/ Stephen Cozen Director December 24, 2004
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Stephen A. Cozen
/s/ John G. Heimann Director January 5, 2005
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John G. Heimann
/s/ Patrick Kenny Director December 28, 2004
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Patrick W. Kenny
/s/ Walter Scott Director December 31, 2004
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Walter A. Scott
/s/ Dominic Frederico Authorized Representative in the United States December 22, 2004
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Dominic Frederico
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EXHIBIT INDEX
Exhibit
Number Description of Document
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4.1 Certificate of Incorporation and Memorandum of
Association of the Registrant (Incorporated by
reference to Exhibit 3.1 to the Registrant's
Registration Statement on Form S-1 (File No.
333-111491), as amended)
4.2 Bye-laws of the Registrant (Incorporated by
reference to Exhibit 3.2 to the Registrant's
Registration Statement on Form S-1 (File No.
333-111491), as amended)
4.3 Specimen Common Share Certificate
(Incorporated by reference to Exhibit 4.1 to
the Registrant's Registration Statement on Form
S-1 (File No. 333-111491), as amended)
5.1 Opinion of Conyers Dill & Pearman as to the Furnished
legality of the Common Shares herewith
23.1 Consent of PricewaterhouseCoopers LLP Furnished
herewith
23.2 Consent of Conyers Dill & Pearman
(included in Exhibit 5.1)
24.1 Powers of Attorney (included in signature pages)
99.1 Form F-N Furnished
herewith