MAIDEN HOLDINGS, LTD. Warrant To Purchase 1,350,000 Common Shares
EXHIBIT
4.3
THIS
WARRANT AND THE SECURITIES REPRESENTED BY THIS WARRANT HAVE BEEN ACQUIRED FOR
INVESTMENT AMD HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), OR QUALIFIED UNDER ANY STATE OR FOREIGN
SECURITIES LAWS. THE TRANSFER OF ANY COMMON SHARES ISSUABLE UPON THE EXERCISE
HEREOF IS SUBJECT TO THE TRANSFER RESTRICTIONS SPECIFIED IN SECTION 4.5 OF
THIS
WARRANT. THIS WARRANT MAY NOT BE EXERCISED AND THE WARRANT AND THE SECURITIES
ISSUABLE UPON ITS EXERCISE MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED,
HYPOTHECATED, ASSIGNED OR OTHERWISE TRANSFERRED WITHOUT REGISTRATION UNDER
THE
SECURITIES ACT AND ANY APPLICABLE STATE OR FOREIGN SECURITIES LAWS, UNLESS
THE
COMPANY RECEIVES AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
TRANSFER DOES NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT OR QUALIFICATION
UNDER ANY OTHER APPLICABLE SECURITIES LAWS.
Warrant
To Purchase 1,350,000 Common Shares
Issuance
Date: June 7, 2007
This
Warrant Certifies That,
for
value received, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
(the
“Holder”),
is
entitled to subscribe for and purchase at the Exercise Price (defined below)
from Maiden
Holdings, Ltd.,
a
Cayman Islands company (the “Company”),
on
the terms and subject to the conditions hereinafter set forth, One Million
Three
Hundred Fifty Thousand (1,350,000) Common Shares (defined below) of the
Company.
1. DEFINITIONS.
In
addition to the definitions set forth in this Warrant, as used herein, the
following terms shall have the following respective meanings:
“Affiliate”
shall
mean, with respect to any specified person, any other person controlling,
controlled by, or under common control with, such person. For the purposes
of
this definition, control when used with respect to any specified person means
the power to direct the management and policies of such person, directly or
indirectly, whether through the ownership of voting securities, by contract
or
otherwise and the terms “controlling” and “controlled” have meanings correlative
to the foregoing.
“Business
Day”
shall
mean any day except Saturday, Sunday and any day which shall be a federal legal
holiday in the United States or in Bermuda, or a day on which banking
institutions in the State of New York or Bermuda are authorized or required
by
law or other government action to close.
“Common
Shares” shall
mean common shares, $0.01 par value each, of the Company.
“Exercise
Price”
shall
mean Ten United States Dollars (U.S.$10.00) per share, subject to adjustment
pursuant to Section 5 below; provided,
that at
no time shall the Exercise Price be less than the then current par value of
any
share to be issued pursuant hereto.
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“Warrant
Shares”
shall
mean the number of the Company’s Common Shares issuable upon exercise of this
Warrant, subject to adjustment pursuant to the terms herein, including but
not
limited to adjustment pursuant to Section 5 below.
2. EXERCISE
OF WARRANT.
Subject
to the limitations set forth in Section 4.5 of this Warrant, the rights
represented by this Warrant may be exercised in whole or in part during the
period commencing on the Issuance Date of this Warrant and ending on the tenth
anniversary thereof (such period being referred to as the “Exercise
Period”)
by
delivery of the following to the Company at its address set forth below (or
at
such other address as it may designate by notice in writing to the
Holder):
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(a)
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An
executed Notice of Exercise in the form attached
hereto;
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(b)
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Payment
of the Exercise Price by any of the following: (i) in cash, (ii)
by check,
or (iii) in immediately available funds, by wire transfer to a bank
account designated in writing by the Company;
and
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(c)
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This
warrant.
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Upon
the
exercise of the rights represented by this Warrant, if applicable, the Company
shall use reasonable efforts to complete as quickly as possible the requirements
of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, as amended (the “Bermuda
Act”),
and a
certificate or certificates for the Warrant Shares so purchased, registered
in
the name of the Holder or persons affiliated with the Holder, if the Holder
so
designates (and subject to securities law limitations as to any such Affiliate
and the transfer restrictions contained in the Company’s Bye-laws), shall be
issued and delivered to the Holder or the Holder’s designee, as the case may be,
within five (5) Business Days after the rights represented by this Warrant
shall
have been so exercised. In the event that this Warrant is being exercised for
less than all of the then current number of Warrant Shares purchasable
hereunder, the Company shall, concurrently with the issuance by the Company
of
the number of Warrant Shares for which this Warrant is then being exercised,
issue a new Warrant to the Holder, which shall be identical hereto, except
that
the number of remaining Warrant Shares covered thereby shall be adjusted
accordingly, and exercisable for the remaining number of Warrant Shares
purchasable hereunder.
The
person in whose name any certificate or certificates for Warrant Shares are
to
be issued upon exercise of this Warrant shall be deemed to have become the
holder of record of such shares on the latest of (i) the date the Company
receives the executed Notice of Exercise, payment of the Exercise Price, if
any,
and this Warrant; (ii) if applicable, the date the Company has complied with
the
requirements of Section 42A of the Bermuda Act; and (iii) the date on which
the
Holder’s or designee’s name is entered in the Register of Members of the
Company, irrespective of the date of delivery of such certificate or
certificates.
3. COVENANTS
OF THE COMPANY.
3.1 Covenants
as to Warrant Shares.
The
Company covenants and agrees that all Warrant Shares that may be issued upon
the
exercise of the rights represented by this Warrant will, upon issuance, be
validly issued and outstanding, fully paid and nonassessable, and free from
all
taxes, liens and charges with respect to the issuance thereof. The Company
further covenants and agrees that the Company will at all times hereunder have
authorized and reserved, free from preemptive rights, a sufficient number of
its
Common Shares to provide for the exercise of the rights represented by this
Warrant. If the number of authorized but unissued Common Shares shall not be
sufficient to permit exercise of this Warrant, the Company will take such
corporate action as may, in the opinion of its counsel, be necessary to increase
its authorized but unissued Common Shares to such number of shares as shall
be
sufficient for such purposes.
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3.2 Notices
of Record Date.
In the
event of any taking by the Company of a record of the holders of any class
of
securities for the purpose of determining the holders thereof who are entitled
to receive any dividend (other than a cash dividend which is comparable to
cash
dividends paid in previous quarters) or other distribution, the Company shall
mail to the Holder, at least ten (10) days prior to the date specified herein,
a
notice specifying the date on which any such record is to be taken for the
purpose of such dividend or distribution.
4. REPRESENTATIONS
AND COVENANTS OF HOLDER.
4.1 Acquisition
of Warrant for Own Account.
The
Holder represents and warrants that it is acquiring the Warrant and the Warrant
Shares solely for its account for investment and not with a view to or for
sale
or distribution of said Warrant or Warrant Shares or any part thereof. The
Holder also represents that the entire legal and beneficial interests of the
Warrant and Warrant Shares the Holder is acquiring is being acquired for, and
will be held for, its account only.
4.2 Securities
Are Not Registered.
(a) The
Holder understands that the Warrant and the Warrant Shares have not been
registered under the Securities Act of 1933, as amended (the “Securities
Act”),
on
the basis that no distribution or public offering of the shares of the Company
is to be effected. The Holder realizes that the basis for the exemption may
not
be present if, notwithstanding its representations, the Holder has a present
intention of acquiring the securities for a fixed or determinable period in
the
future, selling (in connection with a distribution or otherwise), granting
any
participation in, or otherwise distributing the securities. The Holder has
no
such present intention.
(b) The
Holder recognizes that the Warrant and the Warrant Shares must be held
indefinitely unless they are subsequently registered under the Securities Act
or
an exemption from such registration is available. The Holder recognizes that
the
Company has no obligation to register the Warrant, or to comply with any
exemption from such registration.
(c) The
Holder is aware that neither the Warrant nor the Warrant Shares may be sold
pursuant to Rule 144 adopted under the Securities Act unless certain conditions
are met, including, among other things, the existence of a public market for
the
shares, the availability of certain current public information about the
Company, the resale following the required holding period under Rule 144 and
the
number of shares being sold during any three month period not exceeding
specified limitations. Holder is aware that the conditions for resale set forth
in Rule 144 have not been satisfied and that there can be no assurance that
the
Company will satisfy these conditions in the foreseeable future.
4.3 Legended
Shares.
The
Holder understands and agrees that all certificates evidencing the Common Shares
to be issued in connection with the exercise of this Warrant will bear legends
substantially in the form set forth below:
THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”). THESE SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED, HYPOTHECATED, ASSIGNED OR OTHERWISE TRANSFERRED (EXCEPT TO THE COMPANY
OR A SUBSIDIARY THEREOF) UNLESS (I) (A) THERE IS IN EFFECT A REGISTRATION
STATEMENT AS TO THE SECURITIES UNDER THE SECURITIES ACT, OR (B) A WRITTEN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED IS PROVIDED TO THE COMPANY, AND (II) THE TRANSFEREE, IF APPLICABLE,
HAS
OBTAINED THE CONSENT OF THE BERMUDA MONETARY AUTHORITY.
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IN
ADDITION, ANY SALE, OFFER FOR SALE, PLEDGE OR HYPOTHECATION OR OTHER DISPOSITION
OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS RESTRICTED BY, AND THE
RIGHTS ATTACHING TO THESE SECURITIES ARE SUBJECT TO, THE TERMS AND CONDITIONS
CONTAINED IN THE WARRANT ISSUED ON JUNE 7, 2007 BY THE COMPANY TO ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ (THE “▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ WARRANT”) AND IN THE BYE-LAWS OF THE COMPANY,
AS THEY MAY BE AMENDED FROM TIME TO TIME, WHICH ARE AVAILABLE FOR EXAMINATION
BY
HOLDERS OF SECURITIES AT THE REGISTERED OFFICE OF THE COMPANY.
UNDER
THE
TERMS OF THE ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ WARRANT, THE SHARES REPRESENTED BY THIS
CERTIFICATE MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, ASSIGNED
OR OTHERWISE TRANSFERRED PRIOR TO JUNE 7, 2010.
4.4 Accredited
Investor Status.
The
Holder is an “accredited investor” as defined in Regulation D promulgated under
the Securities Act.
4.5 Transfer
Restriction.
The
Holder hereby acknowledges, covenants and agrees that the Warrant Shares may
not
be sold, offered for sale, hypothecated, assigned or otherwise transferred,
directly or indirectly, prior to June 7, 2010.
4.6 Reservation
of Shares.
The
Company covenants and agrees that the Company will, at all times during the
Exercise Period, have authorized and reserved, free from preemptive rights,
a
sufficient number of Common Shares to provide for the exercise of the rights
represented by the Warrant. The Company further covenants and agrees to take
all
such actions as may be necessary to ensure that all Common Shares delivered
upon
exercise of this Warrant will be duly and validly authorized and issued and
fully paid and nonassessable and free from preemptive rights with respect to
the
issue thereof.
5. ADJUSTMENT
OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES.
The
Exercise Price in effect and the number and kind of securities purchasable
upon
the exercise of this Warrant shall be subject to adjustment from time to time
upon the happening of certain events as provided in this Section 5 and in
Section 7 below. In the event of changes in the outstanding Common Shares of
the
Company by reason of share dividends, splits, recapitalizations,
reclassifications, combinations or exchanges of shares, reorganizations,
liquidations, or the like, the number and class of Exercise Shares available
under the Warrant in the aggregate and the Exercise Price shall be
correspondingly adjusted to give the Holder of the Warrant, on exercise for
the
same aggregate Exercise Price, the total number, class, and kind of shares
as
the Holder would have owned had the Warrant been exercised prior to the event
and had the Holder continued to hold such shares until after the event requiring
adjustment. The form of this Warrant need not be changed because of any
adjustment in the number of Exercise Shares subject to this
Warrant.
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6. FRACTIONAL
SHARES.
No
fractional shares shall be issued upon the exercise of this Warrant as a
consequence of any adjustment pursuant hereto. All Warrant Shares (including
fractions) issuable upon exercise of this Warrant may be aggregated for purposes
of determining whether the exercise would result in the issuance of any
fractional share. If, after aggregation, the exercise would result in the
issuance of a fractional share, the Company shall, in lieu of issuance of
any
fractional share, pay the Holder otherwise entitled to such fraction a sum
in
cash equal to the product resulting from multiplying the then current fair
market value of an Exercise Share by such fraction.
7. REORGANIZATION.
In the
event of, at any time during the Exercise Period, any capital reorganization,
or
any reclassification of the capital shares of the Company (other than a change
in par value or as a result of a share dividend or subdivision, split-up
or
combination of shares), or the consolidation, amalgamation or merger of the
Company with or into another corporation, or the sale or other disposition
of
all or substantially all the properties and assets of the Company in its
entirety to any other person (an “Organic
Change”),
then,
as a condition of such Organic Change, lawful and adequate provisions shall
be
made by the Company whereby the Holder hereof shall thereafter have the right
to
purchase and receive (in lieu of the Common Shares of the Company immediately
theretofore purchasable and receivable upon the exercise of the rights
represented hereby) such shares, securities or other assets or property as
may
be issued or payable with respect to or in exchange for a number of outstanding
Common Shares equal to the number of shares immediately theretofore purchasable
and receivable upon the exercise of the rights represented hereby.
8. NO
SHAREHOLDER RIGHTS.
This
Warrant in and of itself shall not entitle the Holder to any voting rights
or
other rights as a shareholder of the Company.
9. REGISTRATION
RIGHTS.
The
Company shall afford the Holder certain registration rights with respect
to the
Warrant Shares in accordance with the terms and subject to the conditions
of
that certain Registration Rights Agreement between the Company and ▇▇▇▇▇
▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ to
be
entered into in connection with the Company’s proposed private placement of
Common Shares contemplated by the preliminary offering memorandum dated June
7,
2007.
10. TRANSFER
OF WARRANT.
Neither
this Warrant nor any of the rights or interests of the Holder hereunder are
transferable or assignable, except by operation of law, without the prior
written consent of the Company. Subject to the foregoing and Section 4 above,
this warrant and the rights and interests of the Holder hereunder may be
transferred as to all or any part of the Common Shares issuable upon exercise
hereof, provided
that the
Holder and the transferee shall deliver to the Company a properly completed
and
executed Assignment Form in the form attached to this Warrant.
11. LOST,
STOLEN, MUTILATED OR DESTROYED WARRANT.
Upon
receipt of evidence satisfactory to the Company of the ownership of and the
loss, theft, destruction or mutilation of this Warrant and of indemnity (other
than in connection with any mutilated Warrant surrendered to the Company
for
cancellation) reasonably satisfactory to the Company, upon reimbursement
of the
Company’s reasonable direct expenses, and upon such other terms as the Company
may reasonably impose (which shall, in the case of a mutilated Warrant, include
the surrender thereof), the Company shall issue a new Warrant of like
denomination and tenor as the Warrant so lost, stolen, mutilated or destroyed.
Any such new Warrant shall constitute an original contractual obligation
of the
Company, whether or not the allegedly lost, stolen, mutilated or destroyed
Warrant shall be at any time enforceable by anyone.
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12.
NOTICES,
ETC.
All
notices required or permitted hereunder shall be in writing and shall be deemed
effectively given: (a) upon personal delivery to the party to be notified,
(b)
when sent by confirmed telex or facsimile if sent during normal business hours
of the recipient, if not, then on the next Business Day, (c) five (5) days
after
having been sent by registered or certified mail, return receipt requested,
postage prepaid, or (d) one (1) day after deposit with a nationally recognized
overnight courier, specifying next day delivery, with written verification
of
receipt. All communications shall be sent to the Company at the address listed
on the signature page and to the Holder at AmTrust Financial Services, ▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇
▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other address as the Company or Holder
may
designate by ten (10) days advance written notice to the other parties
hereto.
13. ACCEPTANCE.
Receipt
of this Warrant by the Holder shall constitute acceptance of and agreement
to
all of the terms and conditions contained herein.
14. GOVERNING
LAW.
This
Warrant and all rights, obligations and liabilities hereunder shall be governed
by and construed under the laws of the State of New York, without giving effect
to conflicts of laws principles.
15. SEVERABILITY.
In the
event that any provision or any part of any provision of this Warrant shall
be
void or unenforceable for any reason whatsoever, then such provision shall
be
stricken and of no force and effect. However, unless such stricken provision
goes to the essence of the consideration bargained for by a party, the remaining
provisions of this Warrant shall continue in full force and effect, and to
the
extent required, shall be modified to preserve their validity.
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IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its
duly
authorized officer as of June 7, 2007.
| By: | /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ |
| Name: | ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ |
|
Title:
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Chief
Operating Officer, General Counsel and
Secretary
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Address: ▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇ 12 Bermuda
Attn:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
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NOTICE
OF EXERCISE
(1) The
undersigned hereby elects to purchase ___ Common Shares of Maiden
Holdings, Ltd.
(the
“Company”)
pursuant to the terms of the attached Warrant, and tenders herewith payment
of
the exercise price in full, together with all applicable transfer taxes, if
any.
(2) Please
issue a certificate or certificates representing said Common Shares in the
name
of the undersigned.
(3) The
undersigned represents that (i) the aforesaid Common Shares are being acquired
for the account of the undersigned for investment and not with a view to, or
for
resale in connection with, the distribution thereof and that the undersigned
has
no present intention of distributing or reselling such shares; (ii) the
undersigned is aware of the Company’s business affairs and financial condition
and has acquired sufficient information about the Company to reach an informed
and knowledgeable decision regarding its investment in the Company; (iii) the
undersigned is experienced in making investments of this type and has such
knowledge and background in financial and business matters that the undersigned
is capable of evaluating the merits and risks of this investment and protecting
the undersigned’s own interests; (iv) the undersigned understands that the
Common Shares issuable upon exercise of this Warrant have not been registered
under the Securities Act of 1933, as amended (the “Securities
Act”),
by
reason of a specific exemption from the registration provisions of the
Securities Act, which exemption depends upon, among other things, the bona
fide
nature of the investment intent as expressed herein, and, because such
securities have not been registered under the Securities Act, they must be
held
indefinitely unless subsequently registered under the Securities Act or an
exemption from such registration is available; (v) the undersigned is aware
that
the aforesaid Common Shares may not be sold pursuant to Rule 144 adopted under
the Securities Act unless certain conditions are met and until the undersigned
has held the shares for the number of years prescribed by Rule 144, that among
the conditions for use of Rule 144 is the availability of current information
to
the public about the Company and that the Company has not made such information
available and has no present plans to do so; and (vi) the undersigned agrees
not
to make any disposition of all or any part of the aforesaid Common Shares unless
and until there is then in effect a registration statement under the Securities
Act covering such proposed disposition and such disposition is made in
accordance with said registration statement, or the undersigned has provided
the
Company with an opinion of counsel satisfactory to the Company, stating that
such registration is not required.
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(Date)
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(Signature)
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(Print
name)
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ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information.
Do not use this form to purchase shares.)
FOR
VALUE RECEIVED,
the
foregoing Warrant and all rights evidenced thereby are hereby assigned
to
| Name: | ||
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(Please
Print)
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| Address: | ||
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(Please
Print)
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with
respect to _________ shares of Common Stock.
Dated:______________,
20__
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Holder’s
Signature:
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Holder’s
Address:
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NOTE:
The
signature of the Holder on this Assignment Form must correspond with the name
as
it appears on the face of the Warrant, without alteration or enlargement or
any
change whatever. Officers of corporations and those acting in a fiduciary or
other representative capacity should file proper evidence of authority to assign
the foregoing Warrant.
The
undersigned represents that (i) the aforesaid Warrant and the Common Shares
issuable upon exercise thereof are being acquired for the account of the
undersigned for investment and not with a view to, or for resale in connection
with, the distribution thereof and that the undersigned has no present intention
of distributing or reselling such Warrant or Common Shares; (ii) the undersigned
understands that such Warrant and Common Shares have not been registered under
the Securities Act of 1933, as amended (the “Securities
Act”),
by
reason of a specific exemption from the registration provisions of the
Securities Act, which exemption depends upon, among other things, the bona
fide
nature of the investment intent as expressed herein, and, because such
securities have not been registered under the Securities Act, they must be
held
indefinitely unless subsequently registered under the Securities Act or an
exemption from such registration is available; (iii) the undersigned is aware
that the aforesaid Warrant and Common Shares may not be sold pursuant to Rule
144 adopted under the Securities Act unless certain conditions are met and
until
the undersigned has held such Warrant or Common Shares for the number of years
prescribed by Rule 144, that among the conditions for use of Rule 144 is the
availability of current information to the public about the Company and that
the
Company has not made such information available and has no present plans to
do
so; and (iv) the undersigned agrees not to make any disposition of all or any
part of the aforesaid Warrant or Common Shares unless and until there is then
in
effect a registration statement under the Securities Act covering such proposed
disposition and such disposition is made in accordance with said registration
statement, or the undersigned has provided the Company with an opinion of
counsel satisfactory to the Company, stating that such registration is not
required.
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Assignee’s
Signature:
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