MAIDEN HOLDINGS, LTD. Warrant To Purchase 1,350,000 Common Shares

EXHIBIT 4.2

 

 

 

 

 

 

 

 

Issuance Date: June 7, 2007

 

This Warrant Certifies That, for value received, George Karfunkel (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.

 

“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):

 

(a)

An executed Notice of Exercise in the form attached hereto;

 

(b)

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

 

(c)

This warrant.

 

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 Section 42A of the Bermuda Companies Act 1981, 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.

 

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.

 

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 GEORGE KARFUNKEL (THE “GEORGE KARFUNKEL 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 GEORGE KARFUNKEL 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.

 

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 Barry D. Zyskind, George Karfunkel and Michael Karfunkel 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.

 

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, 59 Maiden Lane, 6^th Floor, New York, New York 10038, 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.

 

IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its duly authorized officer as of June 7, 2007.

 

 

   

By:

/s/ Bentzion S. Turin________________

Name:

Bentzion S. Turin

Title:

Chief Operating Officer, General Counsel and Secretary

 

Address:      7 Reid Street

Hamilton HM 12 Bermuda

Attn: Bentzion S. Turin

Facsimile: (441) 292-5796

 

 

(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.

 

(Date)		(Signature)
		(Print name)

 

(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

 

 

with respect to _________ shares of  Common Stock.

Dated: _________ , 20__

 

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.