Bermuda
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98-0570192
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.)
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94 Pitts Bay Road
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Pembroke
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HM 08
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(Address of Principal Executive Offices)
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(ZIP Code)
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Maiden Holdings, Ltd. 2019 Omnibus Incentive Plan
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(Full titles of the plans)
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Large accelerated filer
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☐
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Accelerated filer
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☐
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Non-accelerated filer
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☒
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Smaller reporting company
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☒
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Emerging growth company
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☐
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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.
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☐
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Title of securities to be registered
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Amount to be registered(1)
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Proposed maximum offering price per share(2)
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Proposed maximum aggregate offering price(3)
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Amount of registration fee
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Common shares, par value $0.01 per share
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11,289,956
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$0.85
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$9,596,462.60
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$1,245.63
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(1)
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Pursuant to Rule 416 under the Securities Act of 1933, to the extent additional common shares may be issued or issuable as a result of a stock split or other distribution declared at any time by our Board of Directors while this registration statement is in effect, this registration statement is hereby deemed to cover all such additional common shares.
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(2)
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Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c) and 457(h) of the Securities Act of 1933. The price per share and aggregate offering price are based upon the average of the high and low asked prices of our common shares on January 15, 2020, as reported on the Nasdaq Capital Market.
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(3)
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Includes (i) 5,000,000 shares of the registrant’s common shares that may be issued under the Maiden Holdings, Ltd. 2019 Omnibus Incentive Plan (the “Plan”), (ii) 5,664,487 shares of the registrant’s common shares that were not issued under the Amended and Restated Maiden Holdings, Ltd. 2007 Share Incentive Plan, (the “Prior Plan”), as of the effective date of the Plan that may now be offered or sold under the Plan, and (iii) 625,469 shares of the registrant’s common shares, representing the registrant’s estimate of the number of shares subject to outstanding awards under the Prior Plan that will become available for future issuance under the Plan upon their forfeiture, cancellation or settlement in cash.
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•
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On August 29, 2018, we entered into a Renewal Rights Agreement (“Renewal Rights”) with Transatlantic Reinsurance Company (“TransRe”), pursuant to which we sold, and TransRe purchased, Maiden US's rights to: (i) renew its treaty reinsurance agreements upon their expiration or cancellation, (ii) solicit renewals of and replacement coverages for the treaty reinsurance agreements and (iii) replicate and use the products and contract forms used in Maiden US’s business. The sale was consummated on August 29, 2018. We continue to earn premiums and remain liable for losses occurring subsequent to August 29, 2018 for any policies in force prior to and as of August 29, 2018, until those policies expire. The payment received for sale of the Renewal Rights was $7.5 million, subject to potential additional amounts payable in the future in accordance with the agreement, however, no additional amounts to the fee have been recognized to date.
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•
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On December 27, 2018, we completed the sale agreement (“U.S. Sale Agreement”) with Enstar Holdings U.S. LLC (“Enstar Holdings”), pursuant to which our wholly owned subsidiary Maiden Holdings North America, Ltd. sold, and Enstar Holdings purchased, all of the outstanding shares of common stock of Maiden US for gross consideration of $286.4 million. Also, pursuant to the terms of the U.S. Sale Agreement, Maiden Bermuda entered into a novation agreement and a retrocession agreement pursuant to which certain assets and liabilities associated with the U.S. treaty reinsurance business held by Maiden Bermuda were either novated or retroceded to Cavello Bay Reinsurance Limited (“Cavello”), Enstar Holding’s Bermuda reinsurance affiliate in exchange for a ceding commission of $14.0 million.
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•
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Effective January 1, 2019, Maiden Bermuda and AmTrust through AmTrust’s subsidiary, AmTrust International Insurance, Ltd. (“AII”), amended the quota share agreement between Maiden Bermuda and AII (“AmTrust Quota Share”), originally entered into on July 1, 2007 that was in-force and set to expire on June 30, 2019 (“Partial Termination Amendment”). The Partial Termination Amendment provided for the cut-off of the ongoing and unearned premium of AmTrust’s Small Commercial Business and U.S. Specialty Risk and Extended Warranty business as of December 31, 2018, with the remainder of the AmTrust Quota Share remaining in place.
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•
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The Partial Termination Amendment resulted in Maiden Bermuda returning approximately $648.0 million in unearned premium to AII, or approximately $436.8 million net of applicable ceding commission and brokerage. During January 2019, as part of this amendment, the Company transferred cash and investments of $480.0 million to AII based on provisional estimates. The excess of estimated unearned premium, net of applicable ceding commission and brokerage over the actual amount of approximately $43.2 million was returned by AII to Maiden Bermuda during the second quarter of 2019.
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•
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On January 30, 2019, Maiden Bermuda and AmTrust agreed to terminate on a run-off basis (i) the remaining business subject to the AmTrust Quota Share; and (ii) the European hospital liability quota share reinsurance contract (“European Hospital Liability Quota Share”) with AmTrust’s wholly owned subsidiaries AmTrust Europe Limited (“AEL”) and AmTrust International Underwriters DAC effective January 1, 2019.
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•
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Effective as of July 31, 2019, Maiden Bermuda and AII entered into a Commutation and Release Agreement which provided for AII to assume all reserves ceded by AII to Maiden Bermuda with respect to its proportional 40% share of the ultimate net loss under the AmTrust Quota Share related to: (a) all losses incurred in Accident Year 2017 and Accident Year 2018 under California workers' compensation policies issued by AII and as defined in the AmTrust Quota Share (“Commuted California Business”); and (b) all losses incurred in Accident Year 2018 under New York workers' compensation policies issued by AII (“Commuted New York Business” and together with the Commuted California Business (“Commuted Business”)) in exchange for the release and full discharge of Maiden Bermuda of all of its obligations to AII with respect to the Commuted Business. The Commuted Business does not include any business classified by AII as Specialty Program or Specialty Risk business. AII and Maiden Bermuda agreed that the Commuted Business shall be discharged by Maiden Bermuda's transfer of cash and invested assets in the amount of $312.8 million (“Commutation Payment”) which is the sum of the net ceded reserves in the amount of $330.7 million with respect to the Commuted Business as of December 31, 2018 less payments in the amount of $17.9 million made by Maiden Bermuda with respect to the Commuted Business from January 1, 2019 through July 31, 2019. Settlement of the Commutation Payment occurred on August 12, 2019 and Maiden Bermuda paid AII approximately $6.3 million in interest related to the Commutation Payment premium, calculated at the rate of 3.30% per annum from January 1, 2019 through August 12, 2019. Maiden Bermuda received a no objection letter from the Bermuda Monetary Authority (“BMA”) regarding the Commutation and Release Agreement. AII and Maiden Bermuda also agreed that, as of July 31, 2019, the AmTrust Quota Share shall be deemed amended as applicable so that the Commuted Business is no longer included as part of the Covered Business under the AmTrust Quota Share.
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•
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Effective on July 31, 2019, Maiden Bermuda entered into the loss portfolio and adverse development cover agreement (“LPT/ADC Agreement”) with Enstar Group Limited pursuant to which Cavello assumed liabilities for loss reserves as of December 31, 2018 associated with the AmTrust Quota Share in excess of a $2.2 billion retention, up to $600.0 million in exchange for a retrocession premium of $445.0 million. The $2.2 billion retention will be subject to adjustment for paid losses subsequent to December 31, 2018. The LPT/ADC Agreement provides Maiden Bermuda with $155.0 million in adverse development cover over its carried AmTrust Quota Share loss reserves at December 31, 2018. The LPT/ADC Agreement meets the criteria for risk transfer and therefore has been accounted for as retroactive reinsurance. Cumulative ceded losses exceeding $445.0 million would result in a deferred gain which will be recognized over the settlement period in proportion to cumulative losses collected over the estimated ultimate reinsurance recoverable. Consequently, cumulative adverse development subsequent to December 31, 2018 may result in significant losses from operations until periods when the deferred gain is recognized as a benefit to earnings. At September 30, 2019, the deferred gain liability recognized for retroactive reinsurance under the LPT/ADC Agreement was approximately $104.5 million.
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Common shares outstanding before the offering
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83,148,458
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shares(1)
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Common shares issuable upon exercise of options or issuance of restricted shares granted or to be granted which may be offered pursuant to this prospectus
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9,973,332
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shares
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Nasdaq symbol for common shares
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“MHLD”
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Use of Proceeds
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We will not receive any proceeds from the sale of the common shares. We will receive proceeds to the extent that options granted under the Plan, whether currently outstanding or issued in the future, are exercised. We will use the exercise proceeds, if any, for working capital and general corporate purposes.
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||
Risk Factors
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There are risks associated with an investment in the common shares offered by this prospectus. You should carefully consider the risk factors described under “Risk Factors” in this prospectus before making a decision to invest.
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Common Shares and Percentage of Class to be Owned After the Offering (2)(3)
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||||
Name
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Present Principal Position with Us or Our Affiliates
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Shares Beneficially Owned Before the Offering(1)
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Shares Offered Hereby
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Number
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Percent
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|||
Lawrence F. Metz
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President and Chief Executive Officer
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548,819
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(4)
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831,111
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548,819
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*
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Patrick J. Haveron
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Executive Vice President, Chief Financial Officer and Chief Operating Officer
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750,072
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(5)
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831,111
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750,072
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*
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William T. Jarman
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Senior Vice President, Chief Actuary
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37,028
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(6)
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831,111
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37,028
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*
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Denis M. Butkovic
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Senior Vice President, General Counsel and Secretary
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19,748
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(7)
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831,111
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19,748
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*
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Michael C. Haines
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Senior Vice President, Finance
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15,873
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(8)
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831,111
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15,873
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*
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Raymond M. Neff
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Director
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420,500
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(9)
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831,111
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420,500
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*
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Steven H. Nigro
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Director
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54,000
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(10)
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831,111
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54,000
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*
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Simcha G. Lyons
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Director
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82,505
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(11)
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831,111
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82,505
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*
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Yehuda L. Neuberger
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Director
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319,000
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(12)
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831,111
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319,000
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*
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Barry D. Zyskind
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Chairman of the Board
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6,374,292
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(13)
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831,111
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6,374,292
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7.7%
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Holly L. Blanchard
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Director
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—
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831,111
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—
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*
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Keith A. Thomas
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Director
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—
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|
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831,111
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—
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*
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(1)
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The securities “beneficially owned” by an individual are determined in accordance with the definition of “beneficial ownership” set forth in the regulations of the SEC under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), except that it includes all shares issuable upon exercise of all outstanding options. They may include securities owned by or for, among others, the spouse and/or minor children of an individual and any other relative who has the same home as such individual, as well as, other securities as to which the individual has or shares voting or investment power. Beneficial ownership may be disclaimed as to certain of the securities.
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(2)
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The percentage of beneficial ownership shown in the table is based on 83,148,458 common shares issued and outstanding as of December 31, 2019.
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(3)
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Assuming the sale of all shares covered by this prospectus and that the number of common shares issued and outstanding upon the completion of the offering will include only such shares together with all other shares issued and outstanding on the date of this prospectus.
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(4)
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The amount shown above includes vested options to acquire 50,000 common shares granted to Mr. Metz on March 4, 2010. It also includes 90,090 restricted shares vesting 50% annually on the anniversary of the grant date into common shares on August 8, 2020 and August 8, 2021, respectively, and includes 316,904 restricted shares vesting 50% on March 20, 2020 and 50% on March 20, 2021, which Mr. Metz has the ability to vote, but is restricted from transferring until their respective vesting dates. This does not include 328,257 restricted shares issued on March 20, 2019 under the Prior Plan which will vest 50% on the one year anniversary of the grant, and 50% on the two year anniversary of the grant, and were granted contingent upon shareholder approval of the Plan (which approval was obtained on December 10, 2019).
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(5)
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The amount shown above includes vested options to acquire 30,000 common shares granted to Mr. Haveron on March 4, 2010. It also includes 74,558 restricted shares vesting one half annually on the anniversary of the grant date into common shares on November 6, 2020 and November 6, 2021, respectively, and includes 475,356 restricted shares vesting 50% on March 20, 2020 and 50% on March 20, 2021, which Mr. Haveron has the ability to vote, but is restricted from transferring until their respective vesting dates. This does not include 492,386 restricted shares issued on March 20, 2019 under the Prior Plan which will vest 50% on the one year anniversary of the grant, and 50% on the two year anniversary of the grant, and were granted contingent upon shareholder approval of the Plan (which approval was obtained on December 10, 2019).
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(9)
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The amount shown above includes vested options to acquire 42,000 common shares granted on June 1, 2010, June 1, 2011, June 1, 2012, June 1, 2013, June 1, 2014, June 1, 2015 and June 1, 2016.
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(10)
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The amount shown above includes vested options to acquire 18,000 common shares granted on June 1, 2014, June 1, 2015 and June 1, 2016.
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(11)
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The amount shown above includes vested options to acquire 24,000 common shares granted on June 1, 2013, June 1, 2014, June 1, 2015 and June 1, 2016.
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(12)
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The amount shown above includes vested options to acquire 42,000 common shares granted on June 1, 2010, June 1, 2011, June 1, 2012, June 1, 2013, June 1, 2014, June 1, 2015 and June 1, 2016.
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•
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Our Annual Report on Form 10-K for the year ended December 31, 2018, filed with the SEC on March 15, 2019, as amended by Form 10-K/A, filed with the SEC on April 30, 2019.
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•
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All other reports filed (but not “furnished”) by us with the SEC pursuant to Sections 13(a) or 15(d) of the Exchange Act since December 31, 2018.
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•
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The description of our common shares contained in the section entitled “Description of Share Capital” in the prospectus included in our registration statement on Form S-1, as initially filed with the SEC on September 17, 2007, subsequently amended and declared effective May 6, 2008 (File No. 333-146137) (which description is incorporated by reference into our registration statement on Form S-1/A, as filed on May 2, 2008).
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EXHIBIT NUMBER
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DESCRIPTION
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4.1
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4.2
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4.3
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4.4
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5.1
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23.1
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23.2
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23.3
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24.1
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MAIDEN HOLDINGS, LTD.
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By:
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/s/ Lawrence F. Metz
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Name: Lawrence F. Metz
Title: President and Chief Executive Officer |
Signature
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Title
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Date
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/s/ Lawrence F. Metz
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President and Chief Executive Officer
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January 16, 2020
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Lawrence F. Metz
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(Principal Executive Officer)
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/s/ Patrick J. Haveron
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Executive Vice President, Chief Financial Officer and Chief Operating Officer
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January 16, 2020
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Patrick J. Haveron
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(Principal Financial Officer)
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/s/ Michael J. Tait
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Senior Vice President and Chief Accounting Officer
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January 16, 2020
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Michael J. Tait
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(Principal Accounting Officer)
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/s/ Barry D. Zyskind
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Chairman of the Board
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January 16, 2020
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Barry D. Zyskind
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/s/ Raymond M. Neff
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Director
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January 16, 2020
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Raymond M. Neff
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/s/ Simcha G. Lyons
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Director
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January 16, 2020
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Simcha G. Lyons
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|
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/s/ Yehuda L. Neuberger
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Director
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January 16, 2020
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Yehuda L. Neuberger
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|
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/s/ Steven H. Nigro
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Director
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January 16, 2020
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Steven H. Nigro
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/s/ Holly L. Blanchard
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Director
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January 16, 2020
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Holly L. Blanchard
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|
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/s/ Keith A. Thomas
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Director
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January 16, 2020
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Keith A. Thomas
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1.
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Definitions
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2.
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Power to Issue Shares
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3.
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Power of the Company to Purchase its Shares
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4.
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Rights Attaching to Shares
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5.
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Calls on Shares
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6.
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Prohibition on Financial Assistance
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7.
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Forfeiture of Shares
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8.
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Share Certificates
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9.
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Fractional Shares
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10.
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Register of Members
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11.
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Registered Holder Absolute Owner
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12.
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Transfer of Registered Shares
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13.
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Transmission of Registered Shares
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14.
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Power to Alter Capital
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15.
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Variation of Rights Attaching to Shares
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16.
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Dividends
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17.
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Power to Set Aside Profits
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18.
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Method of Payment
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19.
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Capitalisation
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20.
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Annual General Meetings
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21.
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Special General Meetings
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22.
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Requisitioned General Meetings
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23.
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Notice
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24.
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Giving Notice and Access
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25.
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Postponement or Cancellation of General Meeting
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26.
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Electronic Participation and Security at General Meetings
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27.
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Quorum at General Meetings
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28.
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Chairman to Preside at General Meetings
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29.
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Voting on Resolutions
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30.
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Power to Demand Vote on Poll
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31.
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Voting by Joint Holders of Shares
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32.
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Votes of Members - General
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33.
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Adjustment of Voting Power
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34.
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Other Adjustments of Voting Power
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35.
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Notice
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36.
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Board Determination Binding
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37.
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Requirement to Provide Information and Notice
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38.
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Instrument of Proxy
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39.
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Representation of Corporate Member
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40.
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Adjournment of General Meeting
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41.
|
Written Resolutions
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42.
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Directors Attendance at General Meetings
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43.
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Voting of Subsidiary Shares
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44.
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Bye-law or Articles of Association of Certain Subsidiaries
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45.
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Election of Directors
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46.
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Intentionally Omitted
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47.
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Term of Office of Directors
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48.
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Alternate Directors
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49.
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Removal of Directors
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50.
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Vacancy in the Office of Director
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51.
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Remuneration of Directors
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52.
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Defect in Appointment
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53.
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Directors to Manage Business
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54.
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Powers of the Board of Directors
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55.
|
Register of Directors and Officers
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56.
|
Appointment of Officers
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57.
|
Appointment of Secretary
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58.
|
Duties of Officers
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59.
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Remuneration of Officers
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60.
|
Conflicts of Interest
|
61.
|
Indemnification and Exculpation of Directors and Officers
|
62.
|
Board Meetings
|
63.
|
Notice of Board Meetings
|
64.
|
Electronic Participation in Meetings
|
65.
|
Quorum at Board Meetings
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66.
|
Board to Continue in Event of Vacancy
|
67.
|
Chairman to Preside
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68.
|
Written Resolutions
|
69.
|
Validity of Prior Acts of the Board
|
70.
|
Minutes
|
71.
|
Place Where Corporate Records Kept
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72.
|
Form and Use of Seal
|
73.
|
Books of Account
|
74.
|
Financial Year End
|
75.
|
Annual Audit
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76.
|
Appointment of Auditor
|
77.
|
Remuneration of Auditor
|
78.
|
Duties of Auditor
|
79.
|
Access to Records
|
80.
|
Financial Statements
|
81.
|
Distribution of Auditor’s Report
|
82.
|
Vacancy in the Office of Auditor
|
83.
|
Business Combinations
|
84.
|
Winding-Up
|
85.
|
Changes to Bye-laws
|
86.
|
Discontinuance
|
87.
|
Amalgamation
|
1.1
|
In these Bye-laws, the following words and expressions shall, where not inconsistent with the context, have the following meanings, respectively:
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Act
|
the Companies Act 1981 as amended from time to time;
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Alternate Director
|
an alternate director appointed in accordance with these Bye-laws;
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Attribution Percentage
|
with respect to a Member, the percentage of the Member’s shares that are treated as Controlled Shares of a Tentative 9.5% U.S. Member;
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Auditor
|
includes an individual or partnership;
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Board
|
the board of directors appointed or elected pursuant to these Bye-laws and acting by resolution in accordance with the Act and these Bye-laws or the directors present at a meeting of directors at which there is a quorum;
|
Code
|
the United States Internal Revenue Code of 1986, as amended;
|
Company
|
the company for which these Bye-laws are approved and confirmed;
|
Controlled Shares
|
all shares of the Company directly, indirectly or constructively owned by a person as determined pursuant to sections 957 and 958 of the Code and the Treasury Regulations promulgated thereunder;
|
Director
|
a director of the Company and shall include an Alternate Director;
|
indirect
|
when referring to a holder or owner of shares, ownership of shares within the meaning of section 958(a)(2) of the Code;
|
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;
|
9.5% U.S. Member
|
a U.S. Person whose Controlled Shares constitute nine and one-half percent (9.5%) or more of the voting power of all issued shares of the Company and who generally would be required to recognize income with respect to the Company under section 951(a)(1) of the Code, if the Company were a controlled foreign corporation as defined in section 957 of the Code and if the ownership threshold under section 951(b) of the Code were 9.5%;
|
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 and Officers
|
the register of directors and officers referred to in these Bye-laws;
|
Register of Members
|
the register of members referred to in these Bye-laws;
|
Resident Representative
|
any person appointed to act as resident representative 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;
|
Tentative 9.5% U.S. Member
|
a U.S. Person that, but for adjustments or restrictions on exercise of the voting power of shares pursuant to Bye-law 20, would be a 9.5% U.S. Member;
|
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; and
|
U.S. Person
|
(i) an individual who is a citizen or resident of the United States, (ii) a corporation or partnership that is, as to the United States, a domestic corporation or partnership, (iii) an estate that is subject to United States federal income tax on its income, regardless of its source, (iv) a "U.S. Trust;" a U.S. Trust is any trust (A) if and only if (i) a court within the United States is able to exercise primary supervision over the administration of the trust, and (ii) one or more U.S. trustees have the authority to control all substantial decisions of the trust or (B) that has otherwise validly elected to be treated as a domestic trust under applicable U.S. Treasury regulations; or (v) any person that is treated as one of the foregoing for U.S. federal income tax purposes.
|
1.2
|
In these Bye-laws, where not inconsistent with the context:
|
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.
|
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.
|
2.2
|
Without limitation to the provisions of Bye-law 4, subject to the 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).
|
2.3
|
Notwithstanding the foregoing or any other provision of these Bye-laws, the Company may not issue any shares in a manner that the Board determines in its sole discretion may result in a non de minimis adverse tax, legal or regulatory consequence to the Company, or any of its subsidiaries or any direct or indirect holder of shares or its affiliates.
|
3.1
|
The Company may purchase its own shares for cancellation or acquire them as Treasury Shares in accordance with the Act on such terms as the Board shall think fit.
|
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 Act.
|
3.3
|
Notwithstanding the foregoing or any other provision of these Bye-laws, any such purchase or acquisition may not be made if the Board determines in its sole discretion that the purchase or acquisition may result in a non de minimis adverse tax, legal or regulatory consequence to the Company, any of its subsidiaries or any direct or indirect holder of shares or its affiliates.
|
4.1
|
Without prejudice to any special rights previously conferred on the holders of any existing shares or class of shares, the share capital shall consist of at least one class of common shares (the "Common Shares"), the holders of which shall, subject to these Bye-laws:
|
4.2
|
The Board is authorised to provide for the creation and issuance of preference shares (the "Preference Shares") in one or more series, and to establish from time to time the number of shares to be included in each such series, and to fix the terms, including designation, powers, preferences, rights, qualifications, limitations and restrictions of the shares of each such series (and, for the avoidance of doubt, such matters and the issuance of such Preference Shares shall not be deemed to vary the rights attached to the Common Shares or, subject to the terms of any other series of Preference Shares, to vary the rights attached to any other series of Preference Shares). Notwithstanding the foregoing or any other provision of these Bye-laws, the Company shall not vary or alter the rights attaching to any class of shares if the Board, after taking into account any adjustments to or restrictions on exercise of voting rights under Bye-laws 33-37 (inclusive), determines in its sole discretion that any non de minimis adverse tax, regulatory or legal consequences to the Company, any subsidiary of the Company, or any direct or indirect holders of shares or its affiliates may result from such variation. The authority of the Board with respect to each series shall include, but not be limited to, determination of the following:
|
(e)
|
whether or not the shares of that series shall be redeemable or repurchaseable, and, if so, the terms and conditions of such redemption or repurchase, including the manner of selecting shares for redemption or repurchase if less than all shares are to be redeemed or repurchased, the date or dates upon or after which they shall be redeemable or repurchaseable, and the amount per share payable in case of redemption or repurchase, which amount may vary under different conditions and at different redemption or repurchase dates;
|
(f)
|
whether that series shall have a sinking fund for the redemption or repurchase of shares of that series, and, if so, the terms and amount of such sinking fund;
|
(g)
|
the right of the shares of that series to the benefit of conditions and restrictions upon the creation of indebtedness of the Company or any subsidiary, upon the issue of any additional shares (including additional shares of such series or any other series) and upon the payment of dividends or the making of other distributions on, and the purchase, redemption or other acquisition by the Company or any subsidiary of any issued shares of the Company;
|
(h)
|
the rights of the shares of that series in the event of voluntary or involuntary liquidation, dissolution or winding up of the Company, and the relative rights of priority, if any, of payment in respect of shares of that series; and
|
(i)
|
any other relative participating, optional or other special rights, qualifications, limitations or restrictions of that series.
|
4.3
|
Any Preference Shares of any series which have been redeemed (whether through the operation of a sinking fund or otherwise) or which, if convertible or exchangeable, have been converted into or exchanged for shares of any other class or classes shall have the status of authorised and unissued Preference Shares of the same series and may be reissued as a part of the series of which they were originally a part or may be reclassified and reissued as part of a new series of Preference Shares to be created by resolution or resolutions of the Board or as part of any other series of Preference Shares, all subject to the conditions and the restrictions on issuance set forth in the resolution or resolutions adopted by the Board providing for the issue of any series of Preference Shares.
|
4.4
|
At the discretion of the Board, whether or not in connection with the issuance and sale of any shares or other securities of the Company, the Company may issue securities, contracts, warrants or other instruments evidencing any shares, option rights, securities having
|
4.5
|
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 Act, all Treasury Shares shall be excluded from the calculation of any percentage or fraction of the share capital, or shares, of the Company.
|
5.1
|
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 not made payable at fixed times by the terms and conditions of issue) 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.
|
5.2
|
Any amount which by the terms of allotment of a share becomes payable upon issue or at any fixed date, whether on account of the nominal value of the share or by way of premium, shall for all the purposes of these Bye-laws be deemed to be an amount on which a call has been duly made and payable on the date on which, by the terms of issue, the same becomes payable, and in case of non-payment all the relevant provisions of these Bye-laws as to forfeiture, payment of interest, costs and expenses, forfeiture or otherwise shall apply as if such amount had become payable by virtue of a duly made and notified call.
|
5.3
|
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.
|
5.4
|
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 or become payable.
|
7.1
|
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, or as near thereto as circumstances admit, of the following:
|
7.2
|
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.
|
7.3
|
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 thereon and any costs and expenses incurred by the Company in connection therewith.
|
7.4
|
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.
|
8.1
|
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 Secretary or a person expressly
|
8.2
|
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.
|
8.3
|
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 an indemnity for the lost certificate if it sees fit.
|
8.4
|
Notwithstanding any provisions of these Bye-laws:
|
10.
|
Register of Members
|
11.
|
Registered Holder Absolute Owner
|
12.
|
Transfer of Registered Shares
|
13.
|
Transmission of Registered Shares
|
14.
|
Power to Alter Capital
|
15.
|
Variation of Rights Attaching to Shares
|
16.
|
Dividends
|
17.
|
Power to Set Aside Profits
|
18.
|
Method of Payment
|
19.
|
Capitalisation
|
20.
|
Annual General Meetings
|
21.
|
Special General Meetings
|
22.
|
Requisitioned General Meetings
|
23.
|
Notice
|
24.
|
Giving Notice and Access
|
(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 the Company for such purpose; or
|
(d)
|
in accordance with Bye-law 24.4.
|
25.
|
Postponement or Cancellation of General Meeting
|
26.
|
Electronic Participation and Security at General Meetings
|
27.
|
Quorum at General Meetings
|
28.
|
Chairman to Preside at General Meetings
|
29.
|
Voting on Resolutions
|
30.
|
Power to Demand a Vote on a Poll
|
31.
|
Voting by Joint Holders of Shares
|
38.1
|
A Member may appoint a proxy by (a) an instrument appointing a proxy in writing in substantially the following form or such other form as the Board may determine from time to time:
|
38.2
|
The appointment of 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 appointment proposes to vote, and an appointment of proxy which is not received in the manner so permitted shall be invalid.
|
38.3
|
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.
|
38.4
|
The decision of the chairman of any general meeting as to the validity of any appointment of a proxy shall be final.
|
39.1
|
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.
|
39.2
|
Notwithstanding the foregoing, 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.
|
40.1
|
The chairman of any general meeting at which a quorum is present may with the consent of Members holding a majority of the voting rights of those Members present in person or by proxy (and shall if so directed by Members holding a majority of the voting rights of those Members present in person or by proxy), adjourn the meeting.
|
40.2
|
In addition, the chairman may adjourn the meeting to another time and place without such consent or direction if it appears to him that:
|
40.3
|
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 thereat in accordance with these Bye-laws.
|
41.1
|
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 be done by written resolution in accordance with this Bye-law, PROVIDED THAT (a) if the Board determines that the signature of the last Member to sign must be affixed outside the United States, any such resolution shall be valid only if such resolution complies with the Board determination and (b) the resolution shall be void if the Board reasonably determines, based on the advice of counsel, that the use of a resolution in writing would result in a non-de minimis adverse tax, regulatory or legal consequence to the Company, any subsidiary of the Company or any direct or indirect holder of shares.
|
41.2
|
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.
|
41.3
|
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.
|
41.5
|
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.
|
41.6
|
A resolution in writing made in accordance with this Bye-law shall constitute minutes for the purposes of the Act.
|
(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.
|
41.8
|
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 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.
|
45.1
|
The Board shall consist of such number of Directors being not less than three (3) Directors and not more than such maximum number of Directors, not exceeding eleven (11) Directors, as the Board may from time to time determine.
|
45.2
|
Only persons who are proposed or nominated in accordance with this Bye-law shall be eligible for election as Directors. Any Member or the Board may propose any person for election as a Director. Where any person, other than a Director retiring at the meeting or a person proposed for re-election or election as a Director by the Board, is to be proposed for election as a Director, notice must be given to the Company of the intention to propose him and of his willingness to serve as a Director. Where a Director is to be elected:
|
(a)
|
at an annual general meeting, such notice must be given not less than 90 days nor more than 120 days before the anniversary of the last annual general meeting prior to the giving of the notice or, in the event the annual general meeting is called for a date that is not 30 days before or after such anniversary the notice must be given not later than 10 days following the earlier of the date on which notice of the annual general meeting was posted to Members or the date on which public disclosure of the date of the annual general meeting was made; and
|
(b)
|
at a special general meeting, such notice must be given not later than 10 days following the earlier of the date on which notice of the special general meeting was posted to Members or the date on which public disclosure of the date of the special general meeting was made.
|
45.3
|
Where the number of persons validly proposed for re-election or election as a Director is greater than the number of Directors to be elected, the persons receiving the most votes (up to the number of Directors to be elected) shall be elected as Directors, and an absolute majority of the votes cast shall not be a prerequisite to the election of such Directors.
|
45.4
|
At any general meeting the Members may authorise the Board to fill any vacancy in their number left unfilled at a general meeting.
|
48.1
|
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.
|
48.2
|
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.
|
48.3
|
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.
|
48.4
|
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.
|
49.1
|
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, only with cause, 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.
|
49.2
|
If a Director is removed from the Board under the provisions of this Bye-law the Members may fill the vacancy at the meeting at which such Director is removed and a Director so appointed shall hold office in the same class of Directors as the removed Director held until the next annual general meeting or until such Director’s office is otherwise vacated. In the absence of such election or appointment, the Board may fill the vacancy.
|
49.3
|
For the purpose of Bye-law 49.1, “cause” shall mean a conviction for a criminal offence involving dishonesty or engaging in conduct which brings the Director or the Company into disrepute and which results in material financial detriment to the Company.
|
(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;
|
50.2
|
The Members in general meeting or 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 or as a result of an increase in the size of the Board and to appoint an Alternate Director to any Director so appointed.
|
53.1
|
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, by the Act or by these Bye-laws, required to be exercised by the Company in general meeting.
|
53.2
|
Subject to these Bye-laws, the Board may delegate to any company, firm, person, or body of persons any power of the Board (including the power to sub-delegate).
|
(a)
|
appoint, suspend, or remove any manager, secretary, clerk, agent or employee of the Company and may fix their remuneration and determine their duties;
|
(b)
|
exercise all the powers of the Company to borrow money and to mortgage or charge or otherwise grant a security interest in 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;
|
(c)
|
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;
|
(d)
|
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;
|
60.1
|
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 herein contained shall authorise a Director or Director's firm, partner or company to act as Auditor to the Company.
|
60.2
|
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 Act.
|
60.3
|
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.
|
61.1
|
The Directors, Secretary and other Officers (such term 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 liquidator 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
|
61.2
|
The Company may purchase and maintain insurance for the benefit of any Director or Officer against any liability incurred by him under the 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.
|
61.3
|
The Company may advance moneys to an Officer, Director or auditor for the costs, charges and expenses incurred by the Officer, Director or auditor in defending any civil or criminal proceedings against them, on condition that the Officer, Director or auditor shall repay the advance if any allegation of fraud or dishonesty is proved against him.
|
72.1
|
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.
|
72.2
|
A seal may, but need not be affixed to any deed, instrument, share certificate or document, and if the seal is to be affixed thereto, it shall be attested by the signature of (i) any Director; or (ii) any Officer; or (iii) the Secretary; or (iv) any person authorized by the Board for that purpose.
|
72.3
|
A Resident Representative may, but need not, affix the seal of the Company to certify the authenticity of any copies of documents.
|
73.1
|
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 sums of money received and expended by the Company and the matters in respect of which the receipt and expenditure relates;
|
73.2
|
Such records of account shall be kept at the registered office of the Company, or subject to the Act, at such other place as the Board thinks fit and shall be available for inspection by the Directors during normal business hours.
|
76.1
|
Subject to the Act, 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.
|
76.2
|
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.
|
78.1
|
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 thereon in accordance with generally accepted auditing standards.
|
78.2
|
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 Act. If so, the financial statements and the report of the Auditor shall identify the generally accepted auditing standards used.
|
83.1
|
(a) Any Business Combination with any Interested Shareholder within a period of three years following the time of the transaction in which the person become an Interested Shareholder must be approved by the Board and authorised at an annual or special general meeting, by the affirmative vote of at least 66 and 2/3% of the issued and outstanding voting shares of the Company that are not owned by the Interested Shareholder unless:
|
(i)
|
a Member becomes an Interested Shareholder inadvertently and (i) as soon as practicable divests itself of ownership of sufficient shares so that the Member ceases to be an Interested Shareholder; and (ii) would not, at any time within the three-year period immediately prior to a Business Combination between the Company and such Member, have been an Interested Shareholder but for the inadvertent acquisition of ownership; or
|
(ii)
|
the Business Combination is proposed prior to the consummation or abandonment of, and subsequent to the earlier of the public announcement or the notice required hereunder of, a proposed transaction which (i) constitutes one of the transactions described in the following sentence; (ii) is with or by a person who either was not an Interested Shareholder during the previous three years or who became an Interested Shareholder with the approval of the Board; and (iii) is approved or not opposed by a majority of the members of the Board then in office who were Directors prior to any person becoming an Interested Shareholder during the previous three years or were recommended for election or elected to succeed such Directors by resolution of the Board approved by a majority of such Directors. The proposed transactions referred to in the preceding sentence are limited to:
|
(i)
|
"affiliate" means a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, another person;
|
(ii)
|
"associate," when used to indicate a relationship with any person, means: (i) any company, partnership, unincorporated association or other entity of which such person is a director, officer or partner or is, directly or indirectly, the owner of 20% or more of any class of voting shares; (ii) any trust or other estate in which such person has at least a 20% beneficial interest or as to which such person serves as trustee or in a similar fiduciary capacity; and (iii) any relative or spouse of such person, or any relative of such spouse, who has the same residence as such person;
|
83.2
|
In respect of any Business Combination to which the restrictions contained in Bye-law 83.1 do not apply but which the Act requires to be approved by the Members, the necessary general meeting quorum and Members’ approval shall be as set out in Bye-laws 27 and 29 respectively.
|