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o | Fee computed on table below per Exchange ActRules 14a-6(i)(1) and 0-11. |
(1) | Title of each class of securities to which transaction applies: |
(2) | Aggregate number of securities to which transaction applies: |
(3) | Per unit price or other underlying value of transaction computed pursuant to Exchange ActRule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined): |
(4) | Proposed maximum aggregate value of transaction: |
(5) | Total fee paid: |
o | Fee paid previously with preliminary materials. |
o | Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. |
(1) | Amount Previously Paid: |
(2) | Form, Schedule or Registration Statement No.: |
(3) | Filing Party: |
(4) | Date Filed: |
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1. | To elect seven directors to the Company’s Board of Directors to serve until the Company’s 2010 Annual General Meeting of Shareholders. | |
2. | To consider and take action on a proposal to approve the Amended and Restated Bye-laws of the Company to take advantage of several developments in the laws of Bermuda and the United States that involve matters covered by, and to improve the organization of, the Company’s Bye-laws. | |
3. | To consider and take action on a proposal to approve the nomination of KPMG, a Bermuda partnership, as the Company’s independent registered public accounting firm for the 2009 fiscal year and to authorize the Audit Committee to set the remuneration of such independent registered public accounting firm. |
The Belvedere Building
69 Pitts Bay Road
Pembroke HM 08 Bermuda
FOR
ANNUAL GENERAL MEETING OF SHAREHOLDERS
April 29, 2009
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H. Furlong Baldwin Age: 77 Director since 2002 Chairman of the Audit Committee and member of the Governance Committee | Mr. Baldwin was Chairman of Mercantile Bankshares Corporation, a bank holding company, from March 2001 until his retirement in March 2003. Mr. Baldwin is the Chairman of the Board of Directors of The NASDAQ OMX Group, Inc. and a director of W.R. Grace & Company and Allegheny Energy, Inc. | |
Dan R. Carmichael Age: 64 Director since 2002 Non-executive Chairman of the Board, Chairman of the Governance Committee and member of the Audit Committee | Mr. Carmichael has been an adviser and consultant with Proudfoot Consulting, a management consulting firm, since January 2008. From August 2007 to October 2008, he was an executive consultant to Liberty Mutual Agency Markets, a business unit of Liberty Mutual Group. Prior thereto, Mr. Carmichael was President, Chief Executive Officer and a director of Ohio Casualty Corporation, an insurance holding company. Mr. Carmichael is a director of Alleghany Corporation. | |
A. John Hass Age: 43 Director since 2007 Member of the Audit and Compensation Committees | Mr. Hass has been a partner at PEAK6 Investments, LP since September 2008. He was the Chief Executive Officer of OptionsHouse, Inc., a brokerage company and subsidiary of PEAK6 Investments, LP, from October 2006 until September 2008. Prior thereto, Mr. Hass was employed at Goldman Sachs & Co., a financial services company, most recently serving as a Managing Director in the Investment Banking Division. | |
Edmund R. Megna Age: 62 Director since 2007 Member of the Compensation and Governance Committees | Mr. Megna was Vice Chairman of Guy Carpenter & Co., Inc., the reinsurance intermediary division of Marsh & McLennan Companies, Inc., from November 2002 until his retirement in April 2007. | |
Michael D. Price Age: 42 Director since 2005 Member of the Executive Committee | Mr. Price has been President and Chief Executive Officer of the Company since October 2005 and was Chief Operating Officer of the Company from August 2005 until October 2005. Prior thereto, he was President of Platinum US. |
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Peter T. Pruitt Age: 76 Director since 2002 Member of the Audit and Compensation Committees | Mr. Pruitt was Chairman of Willis Re Inc., a reinsurance intermediary, from June 1995 until his retirement in December 2001. | |
James P. Slattery Age: 57 Nominee | Mr. Slattery was Senior Vice President — Insurance of Alleghany Corporation, a property and casualty insurance holding company, and President of Alleghany Insurance Holdings, LLC, the insurance holding company subsidiary of Alleghany Corporation, from April 2002 until his retirement in July 2008. He has also been President of JPS & Co., LLC, an insurance and investment consulting company, since April 2001. |
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• | engage the independent registered public accounting firm (subject to ratification by the shareholders of the Company as required by Bermuda law), determine the compensation and oversee the performance of the independent registered public accounting firm, and approve in advance all audit services and all permitted non-audit services to be provided to the Company by the independent registered public accounting firm; | |
• | assess and take appropriate action regarding the independence of the Company’s independent registered public accounting firm; | |
• | oversee the compensation, activities and performance of the Company’s internal audit function and review the quality and adequacy of the Company’s internal controls and internal auditing procedures; | |
• | periodically review with management and the independent registered public accounting firm the Company’s accounting policies, including critical accounting policies and practices and the estimates and assumptions used by management in the preparation of the Company’s financial statements; | |
• | review with management and the independent registered public accounting firm any material financial or other arrangements of the Company which do not appear on the Company’s financial statements; |
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• | discuss with management the Company’s guidelines and policies with respect to corporate risk assessment and risk management; | |
• | discuss with management each of the earnings press releases; | |
• | review with management and the independent registered public accounting firm the financial statements to be included in the quarterly and annual reports of the Company, including management’s discussion and analysis of financial condition and results of operations, and recommend to the Board whether the audited financial statements should be included in the annual reports of the Company; | |
• | approve a code of ethics, as required by SEC rules, for senior financial officers and such other employees and agents of the Company as the Audit Committee determines; | |
• | establish procedures for the handling of complaints received by the Company regarding accounting, internal accounting controls or auditing matters; and | |
• | annually review and evaluate Audit Committee performance and assess the adequacy of the Audit Committee charter. |
• | review the compensation policies and practices of the Company and its subsidiaries, including incentive compensation plans and equity-based plans that are subject to Board approval; | |
• | review the recommendations of the Chief Executive Officer concerning the compensation of those officers of the Company and its subsidiaries reporting directly to the Chief Executive Officer and of any consultants, agents and other persons to the extent that determinations with respect to the compensation of such consultants, agents and other persons are expressly delegated to the Committee, and make determinations with respect thereto; | |
• | review a report from the Chief Executive Officer concerning the compensation of those officers of the Company and its subsidiaries with a title of Senior Vice President and more senior (other than those officers reporting directly to the Chief Executive Officer), and make such recommendations (if any) to the Chief Executive Officer with respect thereto as the Committee deems appropriate; | |
• | review and approve the corporate goals and objectives relevant to the Chief Executive Officer’s compensation, evaluate the Chief Executive Officer’s performance in light of those goals and objectives and set the Chief Executive Officer’s compensation level based on such evaluation after consultation with each of the directors on the Board; | |
• | review and make recommendations relating to director compensation for discussion and approval by the Board; | |
• | review the recommendation of the Chief Executive Officer concerning the aggregate amount available for the annual incentive bonus program each year, and make a determination with respect thereto; | |
• | oversee the administration of the Company’s incentive-compensation plans and equity-based plans, and any other plans that provide for administration by the Compensation Committee, amend and interpret such plans and the awards and agreements issued pursuant thereto, and make awards to eligible persons under such plans and to determine the terms of such awards; |
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• | review and discuss with management the Company’s Compensation Discussion and Analysis, recommend whether the Compensation Discussion and Analysis should be included in the Company’s proxy statement, and produce an annual report to such effect for inclusion in the Company’s proxy statement; and | |
• | annually review and evaluate Compensation Committee performance and assess the adequacy of the Compensation Committee charter. |
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• | develop a Board that is diverse in nature and provides management with experienced and seasoned advisors with an appropriate mix of skills in fields related to the current or future business directions of the Company and seek qualified candidates for Chief Executive Officer with the necessary skills and experience to contribute to the achievement of the business objectives of the Company; | |
• | identify, interview and screen individuals qualified to become members of the Board and committees thereof, and to become the Chief Executive Officer, for recommendation to the Board; | |
• | develop and recommend to the Board a set of corporate governance guidelines applicable to the Company addressing, among other matters determined by the Committee to be appropriate, director qualifications and responsibilities, director orientation and continuing education, management succession and the annual performance evaluation of the Board; | |
• | regularly review issues and developments relating to corporate governance and recommend to the Board proposed changes to the corporate governance guidelines from time to time as the Committee determines to be appropriate; | |
• | evaluate at least annually the overall effectiveness of the Board and the Company’s senior management, coordinate the annual evaluations of the committees of the Board and make recommendations to the Board with respect thereto as appropriate, provided that any determinations or recommendations relating to compensation are reserved for the Compensation Committee; | |
• | review at least annually all committees of the Board and recommend to the Board changes, as appropriate, in the composition, responsibilities, charters and structure of the committees; | |
• | recommend that the Board establish such special committees as may be necessary or appropriate to address ethical, legal or other matters that may arise; and | |
• | annually review and evaluate Governance Committee performance and assess the adequacy of the Governance Committee charter. |
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Fees Earned or | Stock | Option | All Other | |||||||||||||||||
Paid in Cash(1) | Awards(2) | Awards(3) | Compensation(4) | Total | ||||||||||||||||
Name | ($) | ($) | ($) | ($) | ($) | |||||||||||||||
(a) | (b) | (c) | (d) | (g) | (h) | |||||||||||||||
H. Furlong Baldwin | 73,836 | 114,005 | — | 507 | 188,348 | |||||||||||||||
Jonathan F. Bank | 80,000 | 120,179 | — | 517 | 200,696 | |||||||||||||||
Dan R. Carmichael | 95,859 | 136,021 | — | 517 | 232,397 | |||||||||||||||
Robert V. Deutsch | 68,750 | 108,950 | 23,763 | 382 | 201,845 | |||||||||||||||
A. John Hass | 62,500 | 102,671 | — | 382 | 165,553 | |||||||||||||||
Edmund R. Megna | 66,250 | 106,374 | — | 382 | 173,006 | |||||||||||||||
Peter T. Pruitt | 65,000 | 105,200 | — | 507 | 170,707 | |||||||||||||||
Steven H. Newman(5) | 86,126 | — | 1,565,000 | 575,201 | 2,226,327 |
(1) | These amounts represent the portion of director fees earned in cash with respect to 2008. Messrs. Baldwin, Bank, Carmichael and Hass, each elected to receive this portion of their director fees in share units rather than in cash. | |
(2) | The amounts shown in the Stock Awards column represent the amount we recognized for financial statement reporting purposes in 2008 for share unit awards granted to the directors in 2008 and prior years, in accordance with Statement of Financial Accounting Standards No. 123R “Share-Based Payment” (“SFAS 123R”), excluding the impact of estimated forfeitures related to service-based vesting conditions, as required by SEC rules. These amounts do not reflect the amount of compensation actually received by the directors during the fiscal year. These amounts represent: (i) the dollar amount of the 2008 compensation cost of the share unit portion of director fees paid pursuant to the Share Unit Plan for Nonemployee Directors, and (ii) the dollar amount of the 2008 compensation cost of the annual share unit awards made under the 2006 Share Incentive Plan, which amount was $40,138 for each of Messrs. Baldwin, Bank, Carmichael, Deutsch, Hass, Megna and Pruitt. The grant date fair value of each of the annual share unit awards computed in accordance with SFAS 123R was $40,000. The grant date fair value of the share unit portion of 2008 director fees computed in accordance with SFAS 123R was as follows: Mr. Bank: $80,041; Mr. Baldwin: $73,867; Mr. Carmichael: $95,883; Mr. Deutsch: $68,812; Mr. Hass: $62,533; Mr. Megna: $66,236; Mr. Newman: $0; and Mr. Pruitt: $65,062. The number of Common Shares underlying outstanding Stock Awards held by each of the Company’s directors as of December 31, 2008 was as follows: Mr. Bank: 21,777; Mr. Baldwin: 14,980; Mr. Carmichael: 20,770; Mr. Deutsch: 7,792; Mr. Hass: 5,263; Mr. Megna: 3,917; and Mr. Pruitt: 11,119. The assumptions made in the valuation of these stock awards are discussed in Note 11 to the Company’s consolidated financial statements contained in the Company’s Annual Report onForm 10-K for the year ended December 31, 2008 (the “2008Form 10-K”). | |
(3) | The amounts shown in the Option Awards column represent the amount we recognized for financial statement reporting purposes in 2008 for option awards granted to the directors in 2008 and prior years, in accordance with SFAS 123R, excluding the impact of estimated forfeitures related to service-based vesting conditions, as required by SEC rules. These amounts do not reflect the amount of compensation actually received by the directors during the fiscal year. The amount for Mr. Deutsch represents the dollar amount of the 2008 compensation cost of an option to purchase 25,000 Common Shares with an exercise price of $27.40 per Common Share received by Mr. Deutsch upon his election to the Board at the 2005 Annual General Meeting of Shareholders held on April 26, 2005, which option has a ten-year term and is exercisable in three equal annual installments beginning on April 26, 2006. The amount shown for Mr. Newman |
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represents the dollar amount of the 2008 compensation cost of an option to purchase 500,000 Common Shares with an exercise price of $36.00 per Common Share received by Mr. Newman on April 23, 2008, which option is fully vested and exercisable through April 23, 2010. The number of Common Shares underlying outstanding Option Awards held by each of the Company’s directors as of December 31, 2008 was as follows: Mr. Bank: 35,000; Mr. Baldwin: 35,000; Mr. Carmichael: 35,000; Mr. Deutsch: 25,000; Mr. Newman: 500,000; and Mr. Pruitt: 35,000. The assumptions made in the valuation of these option awards are discussed in Note 11 to the Company’s consolidated financial statements contained in the 2008Form 10-K. | ||
(4) | The amounts for each of Messrs. Baldwin, Bank, Carmichael, Deutsch and Pruitt represent the dollar value of dividends paid on the annual share unit grant and the share unit portion of director fees which converted in 2008 that were not factored into the grant date fair value computation. The amount for Mr. Newman represents: (i) Platinum US consulting fees in the amount of $459,826; (ii) a payment for unused corporate jet hours of $57,200; (iii) the non-business use of the Company’s participation in a corporate jet rental program for 3.7 hours at a cost to the Company of $27,049; (iv) an allowance for office, secretarial and administration services in the amount of $23,562; and (v) the dollar value of dividends paid on the share unit portion of director fees that were not factored into the grant date fair value computation in the amount of $7,565. | |
(5) | Mr. Newman retired from the Board as of April 23, 2008. Mr. Newman serves as a consultant to Platinum US. See “Director Compensation — Agreements with Steven H. Newman” below. |
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(i) | discloses any such relationship promptly after the director becomes aware of it; |
(ii) | removes himself or herself from any Board activity that directly impacts the relationship between the Company and any such entity with respect to which the director has a significant financial interest or with which the director is affiliated; and |
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(iii) | obtains prior approval of the Board for any transaction of which the director is aware between the Company and any such entity that is not in the ordinary course of the Company’s business. |
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Michael D. Price Age: 42 President and Chief Executive Officer | Mr. Price has been President and Chief Executive Officer of the Company since October 2005 and was Chief Operating Officer of the Company from August 2005 until October 2005. Prior thereto, he was President of Platinum US. | |
James A. Krantz Age: 48 Executive Vice President and Chief Financial Officer | Mr. Krantz has been Executive Vice President and Chief Financial Officer of the Company since June 2007. He served as Senior Vice President and Chief Accounting Officer of the Company from August 2006 to May 2007. Mr. Krantz was Senior Vice President, Chief Financial Officer and Treasurer of Platinum US from March 2003 until August 2006. | |
Kenneth A. Kurtzman Age: 41 Executive Vice President and Chief Risk Officer of Platinum Administrative Services, Inc. | Mr. Kurtzman has been Executive Vice President and Chief Risk Officer of Platinum Administrative Services, Inc. since March 2006. Mr. Kurtzman was head of casualty underwriting at Swiss Re Underwriters Agency, Inc., a division of Swiss Reinsurance Company, from July 2004 until March 2006. Prior thereto, Mr. Kurtzman was head of property and casualty risk management at Swiss Reinsurance Company. | |
Michael E. Lombardozzi Age: 47 Executive Vice President, General Counsel, Chief Administrative Officer and Secretary | Mr. Lombardozzi has been Executive Vice President and General Counsel of the Company since September 2002 and Chief Administrative Officer of the Company since August 2005. Mr. Lombardozzi has also served as the Company’s Secretary since November 2002. | |
H. Elizabeth Mitchell Age: 47 President and Chief Executive Officer of Platinum US | Ms. Mitchell has been President of Platinum US since August 2005 and Chief Executive Officer of Platinum US since November 2007. Ms. Mitchell was Executive Vice President of Platinum US from November 2002 until August 2005 and Chief Operating Officer of Platinum US from September 2003 until August 2005. | |
Robert S. Porter Age: 44 Chief Executive Officer of Platinum Bermuda | Mr. Porter has been Chief Executive Officer of Platinum Bermuda since March 2006. Mr. Porter was Chief Executive Officer of Platinum Re (UK) Limited from June 2003 until March 2006. Prior thereto, Mr. Porter was a Senior Vice President of Platinum US. | |
Neal J. Schmidt Age: 52 Executive Vice President and Chief Actuary of Platinum Administrative Services, Inc. | Mr. Schmidt has been Executive Vice President and Chief Actuary of Platinum Administrative Services, Inc. since January 2005 and was Executive Vice President and Chief Actuary of Platinum US from November 2002 until December 2004. |
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• | We operate as a multi-class reinsurer, offering a broad range of reinsurance coverages to our ceding company clients. In support of this strategy, our business plan contemplates a mix of property and casualty underwriting. We believe that this approach enables us to more effectively serve our clients, diversify our risk and leverage our capital. Although our property reinsurance business can be very profitable in periods when there are few catastrophic events, it is also subject to large losses if catastrophes are frequent or severe. Our casualty reinsurance business is typically less volatile, providing steadier earnings from year to year and moderating the volatility of our property business. However, there tends to be a greater time lag between the occurrence, reporting and payment of casualty reinsurance claims, requiring a longer term perspective on the part of our management for this aspect of our business. | |
• | We exercise disciplined underwriting and risk management, emphasizing profitability rather than premium volume or market share. The property and casualty reinsurance business has historically been a cyclical industry, characterized by periods of intense price competition due to excessive underwriting capacity as well as periods when shortages of capacity permitted favorable pricing. Our strategy of emphasizing profitability requires us to focus on business that meets our risk selection and pricing criteria, rather than writing business simply to meet production levels. | |
• | We seek to operate from a position of financial strength. In support of this strategy, our business plan contemplates maintaining a financial strength rating of “A” (Excellent) from A.M. Best. Financial strength ratings are used by ceding companies as an important means of assessing the quality of reinsurers. Our capital base has been maintained at a level that supports an “A” (Excellent) rating. We believe our rating, which indicates A.M. Best’s opinion that we have an excellent ability to meet our ongoing obligations to ceding company clients, allows us to compete for a broader array of business. |
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Non-Equity | ||||||||||||||||||||||||||||||||
Stock | Option | Incentive Plan | All Other | |||||||||||||||||||||||||||||
Name and | Salary | Bonus(1) | Awards(2) | Awards(3) | Compensation | Compensation(4) | Total | |||||||||||||||||||||||||
Principal Position | Year | ($) | ($) | ($) | ($) | ($) | ($) | ($) | ||||||||||||||||||||||||
(a) | (b) | (c) | (d) | (e) | (f) | (g) | (i) | (j) | ||||||||||||||||||||||||
Michael D. Price | 2008 | 750,000 | — | 2,394,729 | — | 1,500,000 | 621,748 | 5,266,477 | ||||||||||||||||||||||||
President and Chief Executive | 2007 | 750,000 | — | 1,716,790 | — | 2,500,000 | 611,483 | 5,578,273 | ||||||||||||||||||||||||
Officer of the Company | 2006 | 750,000 | — | 965,000 | — | 1,500,000 | 687,831 | 3,902,831 | ||||||||||||||||||||||||
James A. Krantz | 2008 | 415,000 | 150,000 | 708,990 | 128,345 | 155,625 | 367,606 | 1,925,566 | ||||||||||||||||||||||||
Executive Vice President and | 2007 | 337,917 | — | 450,944 | 74,226 | 253,438 | 394,140 | 1,510,665 | ||||||||||||||||||||||||
Chief Financial Officer of the Company since June 2007 | ||||||||||||||||||||||||||||||||
Michael E. Lombardozzi | 2008 | 494,583 | — | 1,197,506 | 441,895 | 494,583 | 579,851 | 3,208,418 | ||||||||||||||||||||||||
Executive Vice President, | 2007 | 467,500 | — | 1,266,741 | 366,555 | 467,500 | 558,916 | 3,127,212 | ||||||||||||||||||||||||
General Counsel, Chief | 2006 | 467,500 | — | 419,012 | 502,674 | 935,000 | 568,039 | 2,892,225 | ||||||||||||||||||||||||
Administrative Officer and Secretary of the Company | ||||||||||||||||||||||||||||||||
Robert S. Porter | 2008 | 487,500 | — | 1,084,132 | 354,739 | 487,500 | 508,371 | 2,922,242 | ||||||||||||||||||||||||
Chief Executive Officer of | 2007 | 425,000 | — | 1,076,079 | 304,933 | 425,000 | 497,977 | 2,728,989 | ||||||||||||||||||||||||
Platinum Bermuda | 2006 | 383,919 | — | 330,627 | 338,150 | 850,000 | 556,937 | 2,459,633 | ||||||||||||||||||||||||
H. Elizabeth Mitchell | 2008 | 466,667 | — | 1,062,299 | 353,041 | 466,667 | 56,392 | 2,405,066 | ||||||||||||||||||||||||
President and Chief Executive | 2007 | 425,000 | — | 1,083,114 | 227,785 | 425,000 | 42,500 | 2,203,399 | ||||||||||||||||||||||||
Officer of Platinum US | 2006 | 425,000 | — | 270,545 | 328,257 | 850,000 | 42,500 | 1,916,302 |
(1) | The amount shown in the Bonus column represents the amount paid to Mr. Krantz pursuant to the Retention Bonus Plan. | |
(2) | The amounts shown in the Stock Awards column represent the amount we recognized for financial statement reporting purposes in the applicable fiscal year for share unit and restricted share awards granted to |
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the named executive officers in such fiscal year and prior years, in accordance with SFAS 123R, excluding the impact of estimated forfeitures related to service-based vesting conditions, as required by SEC rules. These amounts do not reflect the amount of compensation actually received by the named executive officer during the fiscal year. The assumptions made in the valuation of stock awards are discussed in Note 11 to the Company’s consolidated financial statements contained in the Company’s 2008Form 10-K. | ||
(3) | The amounts shown in the Option Awards column represent the amount we recognized for financial statement reporting purposes in the applicable fiscal year for option awards granted to the named executive officers in such fiscal year and prior years, in accordance with SFAS 123R, excluding the impact of estimated forfeitures related to service-based vesting conditions, as required by SEC rules. These amounts do not reflect the amount of compensation actually received by the named executive officer during the fiscal year. The assumptions made in the valuation of option awards are discussed in Note 11 to the Company’s consolidated financial statements contained in the Company’s 2008Form 10-K. | |
(4) | The amounts for 2008 include: |
Michael D. | James A. | Michael E. | Robert S. | H. Elizabeth | ||||||||||||||||
Price | Krantz | Lombardozzi | Porter | Mitchell | ||||||||||||||||
Housing allowance | $ | 480,000 | $ | 288,000 | $ | 480,000 | $ | 432,000 | $ | — | ||||||||||
401(k) and non-qualified plan contributions | 75,000 | 41,500 | 49,458 | 48,750 | 46,667 | |||||||||||||||
Personal financial, legal or tax advice fees | 4,000 | 6,985 | 4,605 | — | — | |||||||||||||||
Automobile allowance | 8,400 | 8,400 | 8,400 | 8,400 | — | |||||||||||||||
Dividends paid on stock awards | 25,459 | 6,023 | 12,100 | 10,425 | 9,725 | |||||||||||||||
Home leave allowance | 21,439 | 9,698 | 24,838 | 802 | — | |||||||||||||||
Club fees | 7,000 | 7,000 | — | 7,000 | — | |||||||||||||||
Disability insurance premiums | — | — | — | 994 | — | |||||||||||||||
Credit card fees | 450 | — | 450 | — | — | |||||||||||||||
All other compensation total | 621,748 | 367,606 | 579,851 | 508,371 | 56,392 |
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All Other | All Other | |||||||||||||||||||||||||||||||||||||||||||||||||||
Stock | Option | Grant | ||||||||||||||||||||||||||||||||||||||||||||||||||
Awards: | Awards: | Exercise | Date Fair | |||||||||||||||||||||||||||||||||||||||||||||||||
Estimated Future | Number of | Number of | or Base | Value of | ||||||||||||||||||||||||||||||||||||||||||||||||
Estimated Possible Payouts Under | Payouts Under Equity | Shares of | Securities | Price of | Closing | Stock and | ||||||||||||||||||||||||||||||||||||||||||||||
Non-Equity Incentive Plan Awards | Incentive Plan Awards | Stock or | Underlying | Option | Price on | Option | ||||||||||||||||||||||||||||||||||||||||||||||
Grant | Threshold | Target | Maximum | Thresho | Target | Maximum | Units | Options | Awards | Grant | Awards | |||||||||||||||||||||||||||||||||||||||||
Name | Date | Action | ($) | ($) | ($) | (#) | (#) | (#) | (#) | (#) | ($/Sh) | Date (6) | ($) | |||||||||||||||||||||||||||||||||||||||
(a) | (b) | Date | (c) | (d) | (e) | (f) | (g) | (h) | (i) | (j) | (k) | ($/Sh) | (l) | |||||||||||||||||||||||||||||||||||||||
Michael D. Price | 2/21/08 | (1) | 2/20/08 | $ | 750,000 | $ | 1,500,000 | $ | 3,000,000 | |||||||||||||||||||||||||||||||||||||||||||
2/21/08 | (2) | 2/20/08 | 222 | 22,111 | 44,222 | $ | 750,000 | |||||||||||||||||||||||||||||||||||||||||||||
8/1/08 | (5) | 7/24/08 | 100,000 | $ | 3,610,000 | |||||||||||||||||||||||||||||||||||||||||||||||
James A. Krantz | 2/21/08 | (1) | 2/20/08 | $ | 77,813 | $ | 155,625 | $ | 311,250 | $ | 77,813 | $ | 155,625 | $ | 311,250 | $ | 155,625 | |||||||||||||||||||||||||||||||||||
2/21/08 | (2) | 2/20/08 | 81 | 8,071 | 16,142 | $ | 273,768 | |||||||||||||||||||||||||||||||||||||||||||||
2/21/08 | (3) | 2/20/08 | 4,036 | $ | 136,901 | |||||||||||||||||||||||||||||||||||||||||||||||
2/21/08 | (4) | 2/20/08 | 18,776 | $ | 33.92 | $ | 34.52 | $ | 136,877 | |||||||||||||||||||||||||||||||||||||||||||
7/24/08 | (5) | 7/23/08 | 30,000 | $ | 1,055,700 | |||||||||||||||||||||||||||||||||||||||||||||||
Michael E. Lombardozzi | 2/21/08 | (1) | 2/20/08 | $ | 247,292 | $ | 494,583 | $ | 989,167 | |||||||||||||||||||||||||||||||||||||||||||
2/21/08 | (2) | 2/20/08 | 104 | 10,337 | 20,674 | $ | 350,631 | |||||||||||||||||||||||||||||||||||||||||||||
2/21/08 | (3) | 2/20/08 | 6,892 | $ | 233,777 | |||||||||||||||||||||||||||||||||||||||||||||||
2/21/08 | (4) | 2/20/08 | 32,065 | $ | 33.92 | $ | 34.52 | $ | 233,754 | |||||||||||||||||||||||||||||||||||||||||||
7/24/08 | (5) | 7/23/08 | 40,000 | $ | 1,407,600 | |||||||||||||||||||||||||||||||||||||||||||||||
Robert S. Porter | 2/21/08 | (1) | 2/20/08 | $ | 243,750 | $ | 487,500 | $ | 975,000 | |||||||||||||||||||||||||||||||||||||||||||
2/21/08 | (2) | 2/20/08 | 94 | 9,398 | 18,796 | $ | 318,780 | |||||||||||||||||||||||||||||||||||||||||||||
2/21/08 | (3) | 2/20/08 | 6,265 | $ | 212,509 | |||||||||||||||||||||||||||||||||||||||||||||||
2/21/08 | (4) | 2/20/08 | 29,150 | $ | 33.92 | $ | 34.52 | $ | 212,504 | |||||||||||||||||||||||||||||||||||||||||||
7/24/08 | (5) | 7/23/08 | 40,000 | $ | 1,407,600 | |||||||||||||||||||||||||||||||||||||||||||||||
H. Elizabeth Mitchell | 2/21/07 | (1) | 2/20/08 | $ | 233,333 | $ | 466,667 | $ | 933,333 | |||||||||||||||||||||||||||||||||||||||||||
2/21/08 | (2) | 2/20/08 | 94 | 9,398 | 18,796 | $ | 318,780 | |||||||||||||||||||||||||||||||||||||||||||||
2/21/08 | (3) | 2/20/08 | 6,265 | $ | 212,509 | |||||||||||||||||||||||||||||||||||||||||||||||
2/21/08 | (4) | 2/20/08 | 29,150 | $ | 33.92 | $ | 34.52 | $ | 212,504 | |||||||||||||||||||||||||||||||||||||||||||
7/24/08 | (5) | 7/23/08 | 35,000 | $ | 1,231,650 |
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(1) | Awards made pursuant to the Annual Incentive Plan in respect of 2008. The terms of the Annual Incentive Plan are described above under “Executive Compensation — Compensation Discussion and Analysis — Elements of Compensation — Annual Incentive Plan.” The threshold amounts were calculated assuming payout of the awards based on achievement of 4% return on equity for 2008, the minimum return on equity that would result in payment pursuant to the awards. The named executive officers would not have received any payments under these awards if return on equity were less than 4%. As these awards were paid on February 23, 2009, amounts reported in columns (c) — (h) represent estimated possible payouts. The payout of the amounts reported in columns (f) — (h) for Mr. Krantz was made in share units based on the fair market value of our Common Shares on the date of payout of $28.65 per share, and such share units were converted into Common Shares after 30 days. The actual amounts of the Annual Incentive Plan awards paid to our named executive officers are as reported in the Summary Compensation Table in column (e), Stock Awards, with respect to the expense related to the portion of the Annual Incentive Plan awards paid in share units and in column (g), Non-Equity Incentive Plan Compensation, with respect to the Non-Equity Incentive Plan portion of the Annual Incentive Plan awards paid in cash. | |
(2) | Awards made pursuant to the Executive Incentive Plan for the2008-2010 performance cycle. The terms of the Executive Incentive Plan are described above under “Executive Compensation — Compensation Discussion and Analysis — Elements of Compensation — Long-Term Incentives — Executive Incentive Plan.” The threshold amounts were calculated assuming payout of the awards based on achievement of 6% average return on equity for the2008-2010 performance cycle, the minimum return on equity that would result in payment pursuant to the awards. The named executive officers will not receive any payments under these awards if return on equity is less than 6%. | |
(3) | Information relates to share units granted to our named executive officers in 2008 under the 2006 Share Incentive Plan. All the share units vest according to the following schedule: 50% on February 21, 2011 and 50% on February 21, 2012. | |
(4) | Information relates to stock option grants made to our named executive officers in 2008 under the 2006 Share Incentive Plan. All options expire ten years from the grant date and vest in four equal annual installments beginning on February 21, 2009. | |
(5) | Information relates to restricted shares granted to our named executive officers in 2008 under the 2006 Share Incentive Plan. Mr. Price’s restricted shares vest in three equal annual installments on each of July 31, 2009, 2010 and 2011. The restricted shares granted to the other named executive officers vest in three equal annual installments on each of July 24, 2009, 2010 and 2011. | |
(6) | As described under “Executive Compensation — Compensation Discussion and Analysis — Elements of Compensation — Long-Term Incentives — Equity Award Policy” above, the Company’s equity award policy provides that the fair market value, for purposes of determining the initial value of an award, including the exercise price of an award of options, is determined using the closing sales price of our Common Shares on the trading day immediately preceding the date of grant. |
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Option Awards | Stock Awards | |||||||||||||||||||||||||||||||||||
Equity | ||||||||||||||||||||||||||||||||||||
Incentive | ||||||||||||||||||||||||||||||||||||
Equity | Plan | |||||||||||||||||||||||||||||||||||
Incentive | Awards: | |||||||||||||||||||||||||||||||||||
Equity | Plan | Market | ||||||||||||||||||||||||||||||||||
Incentive | Awards: | or Payout | ||||||||||||||||||||||||||||||||||
Plan | Number of | Value of | ||||||||||||||||||||||||||||||||||
Awards: | Market | Unearned | Unearned | |||||||||||||||||||||||||||||||||
Number of | Number of | Number of | Number of | Value of | Shares, | Shares, | ||||||||||||||||||||||||||||||
Securities | Securities | Securities | Shares or | Shares or | Units or | Units or | ||||||||||||||||||||||||||||||
Underlying | Underlying | Underlying | Units of | Units of | Other | Other | ||||||||||||||||||||||||||||||
Unexercised | Unexercised | Unexercised | Option | Stock That | Stock That | Rights | Rights That | |||||||||||||||||||||||||||||
Options | Options | Unearned | Exercise | Option | Have Not | Have Not | That Have | Have Not | ||||||||||||||||||||||||||||
(#) | (#) | Options | Price | Expiration | Vested | Vested(1) | Not Vested | Vested(1) | ||||||||||||||||||||||||||||
Name | Exercisable | Unexercisable | (#) | ($) | Date | (#) | ($) | (#) | ($) | |||||||||||||||||||||||||||
(a) | (b) | (c) | (d) | (e) | (f) | (g) | (h) | (i) | (j) | |||||||||||||||||||||||||||
Michael D. Price | 19,706 | (2) | $ | 710,992 | ||||||||||||||||||||||||||||||||
20,054 | (3) | $ | 723,548 | |||||||||||||||||||||||||||||||||
49,052 | (4) | $ | 1,769,796 | |||||||||||||||||||||||||||||||||
48,050 | (5) | $ | 1,733,644 | |||||||||||||||||||||||||||||||||
100,000 | (6) | $ | 3,608,000 | |||||||||||||||||||||||||||||||||
44,222 | (7) | $ | 1,595,530 | |||||||||||||||||||||||||||||||||
James A. Krantz | 20,000 | — | $ | 22.75 | 03/02/2013 | |||||||||||||||||||||||||||||||
3,659 | 1,220 | (9) | $ | 30.75 | 02/23/2015 | 650 | (8) | $ | 23,452 | |||||||||||||||||||||||||||
3,315 | 3,315 | (11) | $ | 28.29 | 07/31/2016 | 1,768 | (10) | $ | 63,789 | |||||||||||||||||||||||||||
17,538 | (5) | $ | 632,771 | |||||||||||||||||||||||||||||||||
7,441 | 22,321 | (13) | $ | 34.34 | 05/29/2017 | 7,281 | (12) | $ | 262,698 | |||||||||||||||||||||||||||
— | 18,776 | (15) | $ | 33.92 | 02/20/2018 | 4,036 | (14) | $ | 145,619 | |||||||||||||||||||||||||||
30,000 | (16) | $ | 1,082,400 | |||||||||||||||||||||||||||||||||
16,142 | (7) | $ | 582,403 | |||||||||||||||||||||||||||||||||
Michael E. Lombardozzi | 150,000 | — | $ | 22.50 | 10/31/2012 | |||||||||||||||||||||||||||||||
4,849 | (3) | $ | 174,952 | |||||||||||||||||||||||||||||||||
18,296 | 6,098 | (9) | $ | 30.75 | 02/23/2015 | 3,252 | (8) | $ | 117,332 | |||||||||||||||||||||||||||
69,105 | — | $ | 28.49 | 10/31/2015 | ||||||||||||||||||||||||||||||||
22,932 | (4) | $ | 827,387 | |||||||||||||||||||||||||||||||||
14,881 | 44,643 | (13) | $ | 34.34 | 05/29/2017 | 14,561 | (12) | $ | 525,361 | |||||||||||||||||||||||||||
22,464 | (5) | $ | 810,501 | |||||||||||||||||||||||||||||||||
— | 32,065 | (15) | $ | 33.92 | 02/20/2018 | 6,892 | (14) | $ | 248,663 | |||||||||||||||||||||||||||
40,000 | (16) | $ | 1,443,200 | |||||||||||||||||||||||||||||||||
20,674 | (7) | $ | 745,918 | |||||||||||||||||||||||||||||||||
Robert S. Porter | 50,000 | — | $ | 22.50 | 10/31/2012 | |||||||||||||||||||||||||||||||
50,000 | — | $ | 26.74 | 06/15/2013 | ||||||||||||||||||||||||||||||||
8,005 | 2,668 | (9) | $ | 30.75 | 02/23/2015 | 1,423 | (8) | $ | 51,342 | |||||||||||||||||||||||||||
38,836 | 19,417 | (18) | $ | 30.58 | 02/27/2016 | 5,178 | (17) | $ | 186,822 | |||||||||||||||||||||||||||
20,848 | (4) | $ | 752,196 | |||||||||||||||||||||||||||||||||
12,649 | 37,947 | (13) | $ | 34.34 | 05/29/2017 | 12,377 | (12) | $ | 446,562 | |||||||||||||||||||||||||||
20,420 | (5) | $ | 736,754 | |||||||||||||||||||||||||||||||||
— | 29,150 | (15) | $ | 33.92 | 02/20/2018 | 6,265 | (14) | $ | 226,041 | |||||||||||||||||||||||||||
40,000 | (16) | $ | 1,443,200 | |||||||||||||||||||||||||||||||||
18,796 | (7) | $ | 678,160 | |||||||||||||||||||||||||||||||||
H. Elizabeth Mitchell | 4,548 | (3) | $ | 164,092 | ||||||||||||||||||||||||||||||||
18,296 | 6,098 | (9) | $ | 30.75 | 02/23/2015 | 3,252 | (8) | $ | 117,332 | |||||||||||||||||||||||||||
13,030 | 13,029 | (19) | $ | 30.58 | 02/27/2016 | 6,949 | (20) | $ | 250,720 | |||||||||||||||||||||||||||
20,848 | (4) | $ | 752,196 | |||||||||||||||||||||||||||||||||
19,606 | 58,817 | (13) | $ | 34.34 | 05/29/2017 | 19,184 | (12) | $ | 692,159 | |||||||||||||||||||||||||||
20,420 | (5) | $ | 736,754 | |||||||||||||||||||||||||||||||||
— | 29,150 | (15) | $ | 33.92 | 02/20/2018 | 6,265 | (14) | $ | 226,041 | |||||||||||||||||||||||||||
35,000 | (16) | $ | 1,262,800 | |||||||||||||||||||||||||||||||||
18,796 | (7) | $ | 678,160 |
(1) | Calculated by multiplying the number of shares or units by $36.08, the closing price of our Common Shares on December 31, 2008. |
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(2) | Unvested portion remaining from award of restricted shares originally vesting in five equal annual installments on August 1, 2005, 2006, 2007, 2008 and 2009. | |
(3) | Common Shares which vest on February 22, 2010, subject to satisfaction of performance criteria for the2005-2009 performance cycle. Number of Common Shares is based on achieving the target performance goal of 13% average annual return on equity during the performance period. | |
(4) | Share units which vest on February 28, 2009, subject to satisfaction of performance criteria for the2006-2008 performance cycle. Number of share units is based on achieving the maximum performance goal of at least 18% average annual return on equity during the performance period. | |
(5) | Share units which vest on February 21, 2010, subject to satisfaction of performance criteria for the2007-2009 performance cycle. Number of share units is based on achieving the maximum performance goal of at least 18% average annual return on equity during the performance period. | |
(6) | Restricted shares which vest in three equal annual installments on July 31 of each of 2009, 2010 and 2011. | |
(7) | Share units which vest on February 21, 2011, subject to satisfaction of performance criteria for the2008-2010 performance cycle. Number of share units is based on achieving the maximum performance goal of at least 18% average annual return on equity during the performance period. | |
(8) | Unvested portion remaining from award of share units originally vesting in two equal annual installments on February 24, 2008 and 2009. | |
(9) | Unexercisable portion remaining from award of options to acquire Common Shares originally vesting in four equal annual installments on February 24, 2006, 2007, 2008 and 2009. | |
(10) | Share units which vest in two equal annual installments on August 1, 2009 and August 1, 2010. | |
(11) | Unexercisable portion remaining from award of options to acquire Common Shares originally vesting in four equal annual installments on August 1, 2007, 2008, 2009 and 2010. | |
(12) | Share units which vest in two equal annual installments on February 21, 2010 and 2011. | |
(13) | Unexercisable portion remaining from award of options to acquire Common Shares originally vesting in four equal annual installments on February 21, 2008, 2009, 2010 and 2011. | |
(14) | Share units which vest in two equal annual installments on February 21, 2011 and 2012. | |
(15) | Options to acquire Common Shares which vest in four equal annual installments on February 21, 2009, 2010, 2011 and 2012. | |
(16) | Restricted shares which vest in three equal annual installments on July 24 of each of 2009, 2010 and 2011. | |
(17) | Unvested portion remaining from award of restricted shares originally vesting in three equal annual installments on February 28, 2007, 2008 and 2009. | |
(18) | Unexercisable portion remaining from award of options to acquire Common Shares which vest in three equal annual installments on February 28, 2007, 2008 and 2009. | |
(19) | Unexercisable portion remaining from award of options to acquire Common Shares which vest in four equal annual installments on February 28, 2007, 2008, 2009 and 2010. | |
(20) | Share units which vest in two equal annual installments on February 28, 2009 and 2010. |
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Option Awards | Stock Awards | |||||||||||||||
Number of Shares | Value | Number of Shares | Value | |||||||||||||
Acquired on | Realized | Acquired on | Realized | |||||||||||||
Exercise | on Exercise(1) | Vesting | on Vesting(2) | |||||||||||||
Name | (#) | ($) | (#) | ($) | ||||||||||||
(a) | (b) | (c) | (d) | (e) | ||||||||||||
Michael D. Price(3) | — | — | 19,706 | $ | 707,642 | |||||||||||
James A. Krantz(4) | — | — | 8,123 | $ | 265,036 | |||||||||||
Michael E. Lombardozzi(5) | — | — | 23,178 | $ | 754,514 | |||||||||||
Robert S. Porter(6) | — | — | 19,131 | $ | 636,777 | |||||||||||
H. Elizabeth Mitchell(7) | — | — | 15,783 | $ | 518,882 |
(1) | The value realized upon exercise is calculated by multiplying the number of Common Shares acquired on exercise by the difference between the closing price of our Common Shares on the date of exercise and the exercise price of the option. | |
(2) | The value realized on vesting is calculated by multiplying the number of Common Shares acquired on vesting by the closing price of our Common Shares on the vesting date or, with respect to share units which vested on a weekend or holiday, the trading date immediately preceding the vesting date. | |
(3) | On August 1, 2008, Mr. Price acquired 19,706 Common Shares on vesting of the fourth of five equal annual installments of an award of 98,531 restricted shares originally granted to him on August 4, 2004. The closing price of our Common Shares on August 1, 2008 was $35.91 per share. | |
(4) | On February 24, 2008, Mr. Krantz acquired 651 Common Shares on vesting of the first of two annual installments of an award of 1,301 share units originally granted to him on February 24, 2005. The closing price of our Common Shares on February 22, 2008 (the trading date immediately preceding the vesting date) was $34.44 per share. On March 22, 2008, Mr. Krantz acquired 7,472 Common Shares on conversion of an award of share units originally granted to him pursuant to the Annual Incentive Plan on February 21, 2008. The closing price of our Common Shares on March 20, 2008 (the trading date immediately preceding the vesting date) was $32.47 per share. | |
(5) | On February 24, 2008, Mr. Lombardozzi acquired 3,253 Common Shares on vesting of the first of two annual installments of an award of 6,505 share units originally granted to him on February 24, 2005. The closing price of our Common Shares on February 22, 2008 (the trading date immediately preceding the vesting date) was $34.44 per share. On March 22, 2008, Mr. Lombardozzi acquired 13,783 Common Shares on conversion of an award of share units originally granted to him pursuant to the Annual Incentive Plan on February 21, 2008. The closing price of our Common Shares on March 20, 2008 (the trading date immediately preceding the vesting date) was $32.47 per share. On November 1, 2008, Mr. Lombardozzi acquired 6,142 Common Shares on vesting of the third of three equal annual installments of an award of 18,428 restricted shares originally granted to him on November 1, 2005. The closing price of our Common Shares on November 1, 2008 was $31.74 per share. | |
(6) | On February 24, 2008, Mr. Porter acquired 1,423 Common Shares on vesting of the first of two annual installments of an award of 2,846 share units originally granted to him on February 24, 2005. The closing price of our Common Shares on February 22, 2008 (the trading date immediately preceding the vesting date) was $34.44 per share. On February 28, 2008, Mr. Porter acquired 5,178 Common Shares on vesting of the second of three equal annual installments of an award of 15,534 restricted shares originally granted to him on February 28, 2006. The closing price of our Common Shares on February 28, 2008 was $34.94 per share. On March 22, 2008, Mr. Porter acquired 12,530 Common Shares on conversion of an award of share units originally granted to him pursuant to the Annual Incentive Plan on February 21, |
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2008. The closing price of our Common Shares on March 20, 2008 (the trading date immediately preceding the vesting date) was $32.47 per share. | ||
(7) | On February 24, 2008, Ms. Mitchell acquired 3,253 Common Shares on vesting of the first of two annual installments of an award of 6,505 share units originally granted to her on February 24, 2005. The closing price of our Common Shares on February 22, 2008 (the trading date immediately preceding the vesting date) was $34.44 per share. On March 22, 2008, Ms. Mitchell acquired 12,530 Common Shares on conversion of an award of share units originally granted to her pursuant to the Annual Incentive Plan on February 21, 2008. The closing price of our Common Shares on March 20, 2008 (the trading date immediately preceding the vesting date) was $32.47 per share. |
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• | “change in control” means (i) an acquisition by any individual or group of 50% or more of the Common Shares, other than any acquisition directly from the Company, by the Company, and by an employee benefit plan sponsored or maintained by the Company or any subsidiary; (ii) a change in the composition of the Board during any two-year period without the approval of at least two-thirds of the directors who were in office at the beginning of the period or who subsequently received such two-thirds approval, or (iii) certain mergers or consolidations involving the Company; | |
• | “cause” means the participant’s (i) willful and continued failure to perform substantially his or her duties (other than any such failure resulting from the participant’s incapacity due to physical or mental illness) after a written demand for substantial performance is delivered to the participant by the Board, (ii) willful engaging in illegal conduct or gross misconduct which is demonstrably and materially injurious to the Company or its affiliates, or (iii) conviction of, or plea of guilty or nolo contendere to, a felony or other crime involving moral turpitude; and | |
• | “good reason” means the occurrence of any of the following events without the express written consent of the participant: (i) the Company reduces his or her base salary or the target for his or her annual incentive bonus; (ii) the Company reduces the scope of his or her duties, responsibilities or authority (including reporting responsibilities); (iii) any requirement that he or she be principally based in any location other than the location in which he or she was principally based immediately prior to the change in control; or (iv) a breach by the Company of any of the material provisions of any employment agreement between the participant and the Company. |
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Accelerated | ||||||||||||||||||||||||||||||||
Vesting of | Prorated | Payment | ||||||||||||||||||||||||||||||
Equity | Payment of | of | ||||||||||||||||||||||||||||||
Awards | Outstanding | Continued | ||||||||||||||||||||||||||||||
under 2006 | Share Units | Health | Payment | |||||||||||||||||||||||||||||
Share | Awarded | Care, Life | of | |||||||||||||||||||||||||||||
Prorated | Incentive | under | Insurance | Relocation | Parachute | |||||||||||||||||||||||||||
Payment | Plan and | Executive | and | Expenses | Tax Gross | |||||||||||||||||||||||||||
Severance | of Annual | Predecessor | Incentive | Disability | to Home | Up | ||||||||||||||||||||||||||
Payment(2) | Incentive(3) | Plan(4) | Plan(5) | Coverage(6) | Country(7) | Payment(8) | Total | |||||||||||||||||||||||||
Michael D. Price | $ | 4,500,000 | $ | 1,500,000 | $ | 4,318,992 | $ | 3,535,010 | $ | 38,325 | $ | 50,000 | $ | 4,679,466 | $ | 18,621,793 | ||||||||||||||||
James A. Krantz | 1,472,500 | 311,250 | 1,689,680 | 502,522 | 13,010 | 50,000 | 1,261,701 | 5,300,663 | ||||||||||||||||||||||||
Michael E. Lombardozzi | 1,989,167 | 494,583 | 2,513,998 | 1,564,140 | 35,605 | 50,000 | 1,779,710 | 8,427,203 | ||||||||||||||||||||||||
Robert S. Porter | 1,975,000 | 487,500 | 2,603,973 | 1,337,305 | 31,475 | 50,000 | 1,598,414 | 8,083,667 | ||||||||||||||||||||||||
H. Elizabeth Mitchell | 1,883,333 | 466,667 | 2,818,519 | 1,424,330 | 11,482 | — | 1,790,926 | 8,395,257 |
Prorated | ||||||||||||||||||||||||
Accelerated | Payment of | |||||||||||||||||||||||
Vesting of | Outstanding | |||||||||||||||||||||||
Equity Awards | Share Units | Payment | ||||||||||||||||||||||
under 2006 | Awarded | of | ||||||||||||||||||||||
Prorated | Share Incentive | under | Relocation | |||||||||||||||||||||
Payment | Plan and | Executive | Expenses | |||||||||||||||||||||
Severance | of Annual | Predecessor | Incentive | to Home | ||||||||||||||||||||
Payment(9) | Incentive(3) | Plan(4) | Plan(5) | Country(7) | Total | |||||||||||||||||||
Michael D. Price | $ | 2,250,000 | $ | 1,500,000 | $ | 4,318,992 | $ | 3,535,010 | $ | 50,000 | $ | 11,654,002 | ||||||||||||
James A. Krantz | 726,250 | — | 1,082,400 | 502,522 | — | 2,311,172 | ||||||||||||||||||
Michael E. Lombardozzi | 989,167 | — | 1,443,200 | 1,564,140 | — | 3,996,507 | ||||||||||||||||||
Robert S. Porter | 975,000 | — | 1,736,816 | 1,337,305 | — | 4,049,121 | ||||||||||||||||||
H. Elizabeth Mitchell | 933,333 | — | 1,262,800 | 1,424,330 | — | 3,620,463 |
Prorated Payment of | ||||||||||||||||||||
Accelerated Vesting of | Outstanding Share | |||||||||||||||||||
Prorated Payment | Equity Awards under | Units Awarded under | Payment of | |||||||||||||||||
of Annual | 2006 Share Incentive Plan | Executive Incentive | Relocation Expenses | |||||||||||||||||
Incentive(3) | and Predecessor Plan(4)(10) | Plan(5) | to Home Country(7) | Total | ||||||||||||||||
Michael D. Price | $ | 1,500,000 | $ | 4,318,992 | $ | 3,535,010 | $ | 50,000 | $ | 9,354,002 | ||||||||||
James A. Krantz | 311,250 | 1,689,680 | 502,522 | — | 2,503,452 | |||||||||||||||
Michael E. Lombardozzi | 494,583 | 2,513,998 | 1,564,140 | — | 4,572,721 | |||||||||||||||
Robert S. Porter | 487,500 | 2,603,973 | 1,337,305 | — | 4,428,778 | |||||||||||||||
H. Elizabeth Mitchell | 466,667 | 2,818,519 | 1,424,330 | — | 4,709,516 |
(1) | In accordance with the terms of the CIC Plan, which provides that any amounts payable to a participant in the CIC Plan under any other plan or agreement with us on account of the participant’s termination will be offset against payments made to the participant pursuant to the CIC Plan to the extent necessary to avoid duplication of benefits, this table does not include a lump sum cash payment equal to one year’s base salary and target bonus that would have been payable under each named executive officer’s employment agreement in the event of a termination without cause by the Company or for good reason by the executive. |
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(2) | Represents the sum of highest base salary during 2008 and 2008 target bonus multiplied by a 200% severance multiple. | |
(3) | Estimate of the prorated portion of the named executive officer’s target annual incentive bonus for 2008 assuming a performance bonus multiplier of 100%. Because the performance period for annual incentive bonus awards ends on December 31, 2008, this amount represents one year’s target bonus. | |
(4) | Represents the value that would be realized on December 31, 2008 due to the accelerated vesting of any outstanding restricted share, option or share unit awards held by a named executive officer that would vest in the event of the applicable termination or change in control scenario, calculated using the closing price of the Common Shares on such date of $36.08 per share. | |
(5) | Represents the value that would be realized on December 31, 2008 from a prorated award of Common Shares, based upon the completion of the applicable portion of the performance period for each award (one, two, three or four years) and the performance of the Company as of December 31, 2008, calculated using the closing price of the Common Shares on such date of $36.08 per share. | |
(6) | Represents the value of continued medical, dental, accident, disability and life insurance coverage for each named executive officer and such named executive officer’s dependents for two years based on the annual cost to the Company of providing these benefits in 2008. | |
(7) | Estimate of the reasonable relocation expenses (up to a maximum of $50,000 for Mr. Price) to return the named executive officer to his or her home country, including moving expenses, real estate fees and commissions and related expenses, based on past costs to the Company of relocating executive officers between Bermuda and their home countries. | |
(8) | Estimate of thegross-up payment needed to make the named executive officer whole for the effects of the excise tax on “excess parachute payments” under Section 280G of the Internal Revenue Code. | |
(9) | Represents the value of 2008 earned base salary plus 2008 target bonus. | |
(10) | For Mr. Price, in the case of a termination due to death or disability, this amount would be reduced to $1,913,647. Pursuant to the terms of the Price Agreement, if Mr. Price’s employment is terminated on account of his death or disability, then only the unvested restricted shares that would have vested in the one-year period following his death or disability would become fully vested. |
Robert V. Deutsch
A. John Hass
Edmund R. Megna
Peter T. Pruitt
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Amount and Nature | ||||||||
Name and Address | of Beneficial | |||||||
of Beneficial Owner | Ownership | Percent of Class(4) | ||||||
Wellington Management Company, LLP | 4,403,612 | (1) | 8.3 | |||||
75 State Street Boston, MA 02109 | ||||||||
FMR LLC | 3,154,621 | (2) | 5.9 | |||||
Edward C. Johnson 3d 82 Devonshire Street Boston, MA 02109 | ||||||||
Barclays Global Investors, NA | 2,407,979 | (3) | 4.5 | |||||
Barclays Global Fund Advisors 400 Howard Street San Francisco, CA 94105 |
(1) | In an amendment filed on February 17, 2009 to a Schedule 13G, Wellington Management Company, LLP, an investment advisor (“Wellington”), reported beneficial ownership of 4,403,612 Common Shares held of record by clients of Wellington who had the right to receive, or the power to direct the receipt of, dividends from, or the proceeds from the sale of, such securities; no such client was known to have such right or power with respect to more than 5% of the class of such securities. Wellington reported shared voting power over 3,453,580 Common Shares and shared dispositive power over 4,365,512 Common Shares. | |
(2) | In a Schedule 13G filed on February 17, 2009, FMR LLC (“FMR”) and its Chairman, Edward C. Johnson 3d, reported beneficial ownership of a total of 3,154,621 Common Shares, consisting of (i) 2,781,521 Common Shares which are held by various investment companies (the “Funds”) to which Fidelity Management & Research Company, a wholly owned subsidiary of FMR, is investment adviser, and of which FMR and Mr. Johnson report that each has sole power to dispose but that neither has sole power to vote or direct the voting, which power resides with Funds’ Board of Trustees and (ii) 373,100 Common Shares which are held by various institutional accounts of which Pyramis Global Advisors Trust Company, an indirect wholly owned subsidiary of FMR, is investment manager, and of which FMR and Mr. Johnson report that each has sole dispositive power over 373,100 Common Shares and sole power to vote or to direct the voting of 327,300 Common Shares. The Schedule 13G reported that various persons have the right to receive, or the power to direct the receipt of, dividends from, or the proceeds from the sale of, the Common Shares, and that no one person’s interest in the Common Shares is more than 5% of the outstanding Common Shares of the Company. | |
(3) | In a Schedule 13G filed on February 5, 2009, Barclays Global Investors, NA, a bank, reported sole voting power over 993,924 Common Shares of the Company and sole dispositive power over 1,176,670 Common Shares of the Company and Barclays Global Fund Advisors, an investment adviser, reported sole voting power and sole dispositive power over 1,231,309 Common Shares of the Company, for an aggregate reported beneficial ownership of 2,407,979 Common Shares of the Company. | |
(4) | Based on 53,158,033 outstanding Common Shares as of February 28, 2009. |
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Amount and Nature | ||||||||
of Beneficial | Percent | |||||||
Name of Beneficial Owner | Ownership | of Class(4) | ||||||
Michael E. Lombardozzi | 395,194 | (1) | * | |||||
Robert S. Porter | 294,933 | (1) | * | |||||
Michael D. Price | 271,561 | (1) | * | |||||
Neal J. Schmidt | 244,252 | (1) | * | |||||
H. Elizabeth Mitchell | 166,448 | (1)(2) | * | |||||
James A. Krantz | 93,072 | (1) | * | |||||
Kenneth A. Kurtzman | 67,624 | (1) | * | |||||
Robert V. Deutsch | 53,716 | (3) | * | |||||
Dan R. Carmichael | 53,266 | (3) | * | |||||
H. Furlong Baldwin | 50,316 | (3) | * | |||||
Peter T. Pruitt | 49,302 | (3) | * | |||||
Jonathan F. Bank | 42,490 | (3) | * | |||||
A. John Hass | 2,307 | (3) | * | |||||
Edmund R. Megna | 2,307 | (3) | * | |||||
James P. Slattery | 565 | * | ||||||
All directors, nominees and executive officers as a group (15 persons) | 1,787,353 | 3.3 |
* | Represents less than 1% of the outstanding Common Shares. | |
(1) | Includes unvested restricted shares as follows: Mr. Krantz: 30,000 Common Shares; Mr. Lombardozzi: 40,000 Common Shares; Ms. Mitchell: 35,000 Common Shares; Mr. Porter: 40,000 Common Shares; and Mr. Price: 119,706 Common Shares. Includes Common Shares beneficially owned pursuant to options that are currently exercisable or exercisable within 60 days after February 28, 2009 as follows: Mr. Krantz: 47,769 Common Shares; Mr. Kurtzman: 44,348 Common Shares; Mr. Lombardozzi: 281,278 Common Shares; Ms. Mitchell: 90,439 Common Shares; Mr. Porter: 201,512 Common Shares; and Mr. Schmidt: 212,400 Common Shares. Includes Common Shares beneficially owned pursuant to the conversion of share units within 60 days after February 28, 2009 as follows: Mr. Krantz: 5,432 Common Shares and Mr. Kurtzman: 7,333 Common Shares. | |
(2) | Ms. Mitchell has pledged 23,791 Common Shares in accordance with the terms and conditions of a brokerage firm’s customary margin account requirements. | |
(3) | Does not include nonemployee director fee share units issued to Messrs. Baldwin, Bank, Carmichael, Deutsch, Hass, Megna and Pruitt as more fully described under “Director Compensation.” As of February 28, 2009, the following nonemployee directors were credited with the following number of director fee share units: Mr. Baldwin: 13,464 share units; Mr. Bank: 20,144 share units; Mr. Carmichael: 19,524 share units; Mr. Deutsch: 7,131 share units; Mr. Hass: 5,000 share units; Mr. Megna: 3,221 share units; and Mr. Pruitt: 9,072 share units. Includes 1,112 Common Shares beneficially owned pursuant to the conversion of share units awarded to each of Messrs. Baldwin, Bank, Carmichael, Deutsch, Hass, Megna and Pruitt at the 2008 Annual General Meeting of Shareholders that are convertible into Common Shares within 60 days after February 28, 2009. Includes Common Shares beneficially owned pursuant to options that are currently exercisable or exercisable within 60 days after February 28, 2009 as follows: Mr. Baldwin: 35,000 Common Shares; Mr. Bank: 35,000 Common Shares; Mr. Carmichael: 35,000 Common Shares; Mr. Deutsch: 25,000 Common Shares; and Mr. Pruitt: 35,000 Common Shares. |
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(4) | Based on 53,158,033 outstanding Common Shares as of February 28, 2009, adjusted to include Common Shares covered by options that are currently exercisable or exercisable within 60 days after February 28, 2009 and share units that are convertible into Common Shares within 60 days after February 28, 2009 held by such person or group. |
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50
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51
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52
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53
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Jonathan F. Bank
Dan R. Carmichael
Robert V. Deutsch
A. John Hass
Peter T. Pruitt
54
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2008 | 2007 | |||||||
Audit fees(1) | $ | 1,541,000 | $ | 1,734,500 | ||||
Audit-related fees(2) | 51,680 | 62,072 | ||||||
Tax fees | 0 | 0 | ||||||
All other fees | 0 | 0 | ||||||
Total | $ | 1,592,680 | $ | 1,796,572 |
(1) | The amount shown for “Audit fees” for 2008 represents fees for professional services rendered by KPMG US and its affiliates for (a) the audit of the Company’s annual financial statements and internal control over financial reporting for 2008; (b) the review of the Company’s financial statements included in its Quarterly Reports onForm 10-Q for the quarters ended March 31, 2008, June 30, 2008 and September 30, 2008; and (c) statutory audits for the Company’s insurance subsidiaries. The amount shown for “Audit fees” for 2007 represents fees for professional services rendered by KPMG US and its affiliates for (a) the audit of the Company’s annual financial statements and internal control over financial reporting for 2007; (b) the review of the Company’s financial statements included in its Quarterly Reports onForm 10-Q for the quarters ended March 31, 2007, June 30, 2007 and September 30, 2007; and (c) statutory audits for the Company’s insurance subsidiaries. | |
(2) | The amounts shown for “Audit-related fees” for 2008 and 2007 represent professional services and consultation in relation to review of certain accounting and auditing information. |
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Executive Vice President, General Counsel,
Chief Administrative Officer and Secretary
56
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BYE-LAWS
OF
PLATINUM UNDERWRITERS HOLDINGS, LTD.
Table of Contents
INTERPRETATION | ||
1. | Definitions | |
SHARES | ||
2. | Power to Issue Shares | |
3. | Power of the Company to Purchase its Shares | |
4. | Rights Attaching to Shares | |
5. | Calls on Shares | |
6. | Prohibition on Financial Assistance | |
7. | Forfeiture of Shares | |
8. | Share Certificates | |
9. | Fractional Shares | |
REGISTRATION OF SHARES | ||
10. | Register of Members | |
11. | Registered Holder Absolute Owner | |
12. | Transfer of Registered Shares | |
13. | Transmission of Registered Shares | |
ALTERATION OF SHARE CAPITAL | ||
14. | Power to Alter Capital | |
15. | Variation of Rights Attaching to Shares | |
DIVIDENDS AND CAPITALISATION | ||
16. | Dividends | |
17. | Power to Set Aside Profits | |
18. | Method of Payment | |
19. | Capitalisation | |
MEETINGS OF MEMBERS | ||
20. | Annual General Meetings | |
21. | Special General Meetings | |
22. | Requisitioned General Meetings | |
23. | Notice | |
24. | Giving Notice and Access | |
25. | Postponement of General Meeting | |
26. | Electronic Participation in 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 | |
32. | Votes of Members — General | |
33. | Adjustment of Voting Power | |
34. | Other Adjustments of Voting Power | |
35. | Professional Assistance | |
36. | Board Determination Binding | |
37. | Requirement of Members to Provide Information and Notice | |
38. | Instrument of Proxy | |
39. | Representation of Corporate Member | |
40. | Adjournment of General Meeting | |
41. | Written Resolutions | |
42. | Directors’ Attendance at General Meetings | |
CERTAIN SUBSIDIARIES | ||
43. | Voting of Certain Subsidiary Shares | |
44. | Bye-laws or Articles of Association of Certain Subsidiaries | |
DIRECTORS AND OFFICERS | ||
45. | Election of Directors | |
46. | Number of Directors | |
47. | Term of Office of Directors | |
48. | Removal of Directors | |
49. | Vacancy in the Office of Director | |
50. | Remuneration of Directors | |
51. | Defect in Appointment | |
52. | Directors to Manage Business | |
53. | Powers of the Board of Directors | |
54. | Register of Directors and Officers | |
55. | Appointment of Officers | |
56. | Appointment of Secretary | |
57. | Duties of Officers | |
58. | Remuneration of Officers | |
59. | Conflicts of Interest | |
60. | Indemnification and Exculpation of Directors and Officers | |
MEETINGS OF THE BOARD OF DIRECTORS | ||
61. | Board Meetings | |
62. | Notice of Board Meetings | |
63. | Electronic Participation in Meetings | |
64. | Quorum at Board Meetings | |
65. | Board to Continue in the Event of Vacancy | |
66. | Chairman to Preside at Board Meetings | |
67. | Written Resolutions | |
68. | Validity of Prior Acts of the Board | |
CORPORATE RECORDS | ||
69. | Minutes | |
70. | Place Where Corporate Records Kept | |
71. | Form and Use of Seal | |
ACCOUNTS | ||
72. | Books of Account | |
73. | Financial Year End | |
AUDITS | ||
74. | Annual Audit | |
75. | Appointment of Auditor | |
76. | Remuneration of Auditor | |
77. | Duties of Auditor | |
78. | Access to Records | |
79. | Financial Statements | |
80. | Distribution of Auditor’s Report | |
81. | Vacancy in the Office of Auditor | |
VOLUNTARY WINDING UP AND DISSOLUTION | ||
82. | Winding Up | |
CHANGES TO CONSTITUTION | ||
83. | Changes to Bye-laws | |
84. | Changes to the Memorandum of Association | |
85. | Discontinuance |
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1. | Definitions |
1.1 | In these Bye-laws, the following words and expressions shall, where not inconsistent with the context, have the following meanings, respectively: |
Act | the Companies Act 1981 as amended from time to time; | |
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; | |
Auditor | includes an individual or partnership; | |
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; | |
business day | any day, other than a Saturday, a Sunday or any day on which banks in Hamilton, Bermuda are authorized or obligated by law or executive order to close; | |
these Bye-laws | these Amended and Restated Bye-laws as adopted by the Members on , 2009; | |
Code | the United States Internal Revenue Code of 1986, as amended from time to time; | |
Common Shares | the common shares, par value U.S. $0.01 per share, of the Company, and includes a fraction of a Common Share; | |
Company | the company for which these Bye-laws are approved and confirmed; | |
Confidential Information | any information provided by any Member to the Company pursuant to Bye-law 37 or for purposes of making the analysis required by Bye-laws 33 and 34; |
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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; | |
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; | |
Preferred Shares | the preferred shares, par value U.S. $0.01 per share, of the Company, and includes a fraction of a Preferred Share; | |
Register of Directors and Officers | the register of Directors and Officers referred to in these Bye-laws; |
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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; | |
shares | shares of any class of shares in the capital of the Company, and includes a fraction of a share; | |
subsidiary | a company more than fifty percent (50%) of the voting power of which is owned, directly or indirectly, by the Company and/or one or more of its subsidiaries; | |
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; | |
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, or (v) any person that is treated as one of the foregoing for U.S. federal income tax purposes; and |
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U.S. Trust | 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. |
1.2 | In these Bye-laws, where not inconsistent with the context: |
(a) | words denoting the plural number include the singular number and vice versa; | |
(b) | words denoting the masculine gender include the feminine and neuter genders; | |
(c) | words importing persons include companies, associations or bodies of persons whether corporate or not; |
(e) | unless otherwise provided herein, words or expressions defined in the Act shall bear the same meaning in these Bye-laws. |
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. | Power to Issue Shares |
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 and any shares or class of shares may be issued with such preferred, deferred or other special rights or such restrictions, whether in regard to dividend, voting, return of capital, or otherwise as the Board may determine. Further, the Board may create and issue shares of a new class or of any existing class of shares and the Board may generally exercise the powers of the Company set out in Sections 45(1)(b), (c), (d) and (e) of the Act, without the need of any approval of the Members as might |
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otherwise be required by such Sections of the Act. The Board may also issue options, warrants or other rights to purchase or acquire shares or, subject to Section 43 of the Act, securities convertible into or exchangeable for shares (including any employee benefit plan providing for the issue of shares or options or rights in respect thereof), at such times, for such consideration and on such terms and conditions as it may determine. The Board may create and issue shares including, but not limited to, series of preferred shares (which may or may not be separate classes of preferred shares), at such times, for such consideration and on such terms and conditions, with similar or different rights or restrictions as any other series (or class) and to establish from time to time the number of preferred shares to be included in each such series (or class), and to fix the designation, powers, preferences, voting rights, dividend rights, repurchase provisions, and other rights, qualifications, limitations or restrictions thereof, as it may determine. |
2.2 | 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, any of its subsidiaries or any direct or indirect holder of shares. |
3. | Power of the Company to Purchase its Shares |
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. 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. | |
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. |
4. | Rights Attaching to Shares |
4.1 | The share capital of the Company shall be divided into Common Shares and Preferred Shares. | |
4.2 | The holders of Common Shares shall, subject to the provisions of these Bye-laws: |
(a) | be entitled to one vote per Common Share (subject to any adjustments or eliminations of voting power of any shares pursuant to Bye-laws 33 and 34); |
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(b) | be entitled to such dividends as the Board may from time to time declare; | |
(c) | in the event of a liquidation, winding up or dissolution of the Company, whether voluntary or involuntary or for the purpose of a reorganisation or otherwise or upon any distribution of capital, be entitled to share equally and ratably in the assets of the Company, if any, remaining after the payment of all debts and liabilities of the Company and the liquidation preference of any outstanding Preferred Shares; and | |
(d) | generally be entitled to enjoy all of the rights attaching to shares. |
4.3 | The Board is authorised, subject to limitations prescribed by law, to issue the Preferred Shares in series, to establish from time to time the number of Preferred Shares to be included in each such series, and to fix the designation, powers, preferences and rights of each such series and the qualifications, limitations or restrictions thereof. The terms of any series of Preferred Shares shall be set forth in a certificate of designations in the minutes of the Board. The authority of the Board with respect to each series of Preferred Shares shall include, but not be limited to, determination of the following: |
(a) | the number of Preferred Shares constituting that series and the distinctive designation of that series; | |
(b) | the rate of dividend, and whether (and if so, on what terms and conditions) dividends shall be cumulative (and if so, whether unpaid dividends shall compound or accrue interest) or shall be payable in preference or in any other relation to the dividends payable on any other class or classes of shares or any other series of the Preferred Shares; | |
(c) | whether that series shall have voting rights in addition to the voting rights provided by law and, if so, the terms and extent of such voting rights (subject to any adjustments or eliminations of voting power of any shares pursuant to Bye-laws 33 and 34); | |
(d) | whether the Preferred Shares may be redeemed and, if so, the terms and conditions on which they may be redeemed (including, without limitation, the dates upon or after which they may be redeemed and the price or prices at which they may be redeemed, which price or prices may be different in different circumstances or at different redemption dates); | |
(e) | whether the Preferred Shares shall be issued with the privilege of conversion or exchange and, if so, the terms and conditions of such conversion or exchange (including, without limitation the price or prices or the rate or rates of conversion or exchange or any terms for adjustment thereof); | |
(f) | the amounts, if any, payable upon the Preferred Shares in the event of voluntary liquidation, dissolution or winding up of the Company in preference of shares of any other class or series and whether the |
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Preferred Shares shall be entitled to participate generally in distributions on the Common Shares under such circumstances; |
(g) | the amounts, if any, payable upon the Preferred Shares in the event of involuntary liquidation, dissolution or winding up of the Company in preference to shares of any other class or series and whether the Preferred Shares shall be entitled to participate generally in distributions on the Common Shares under such circumstances; | |
(h) | sinking fund provisions, if any, for the redemption or purchase of the Preferred Shares (the term “sinking fund” being understood to include any similar fund, however designated); and | |
(i) | any other relative rights, preferences, limitations and powers of that series. |
4.4 | 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. | Calls on Shares |
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, 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 | 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. | |
5.3 | 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. |
6. | Prohibition on Financial Assistance |
7. | Forfeiture of Shares |
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 |
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forward such Member a notice in writing in the form, or as near thereto as circumstances admit, of the following: |
• (the “Company”)
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. Without limiting the generality of the foregoing, the disposal may take place by sale, repurchase, redemption or any other method of disposal permitted by and consistent with these Bye-laws and the Act. | |
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. | Share Certificates |
8.1 | Every Member shall be entitled to a certificate bearing the signature (or a facsimile thereof) of a Director or an Officer or the Secretary or a person authorised by the Board to sign specifying the number and, where appropriate, the class of shares held by such Member and whether the same are fully paid up and, if not, specifying the amount paid on such shares. The Board may by resolution determine, either generally or in a particular case, that any or all signatures on certificates may be printed thereon or affixed by mechanical means. |
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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. |
9. | Fractional Shares |
10. | Register of Members |
10.1 | The Board shall cause to be kept in one or more books a Register of Members and shall enter therein the particulars required by the Act. | |
10.2 | The Register of Members shall be open to inspection without charge at the registered office of the Company on every business day, subject to such reasonable restrictions as the Board may impose, so that not less than two hours in each business day be allowed for inspection. The Register of Members may, after notice has been given in accordance with the Act, be closed for any time or times not exceeding in the whole thirty days in each year. |
11. | Registered Holder Absolute Owner |
12. | Transfer of Registered Shares |
12.1 | An instrument of transfer shall be in writing in the form of the following, or as near thereto as circumstances admit, or in such other form as the Board may accept: |
• (the “Company”)
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Signed by: | In the presence of: | |
Transferor | Witness | |
Transferee | Witness |
12.2 | Such instrument of transfer shall be signed by or on behalf of the transferor and transferee, provided that, in the case of a fully paid share, the Board may accept the instrument signed by or on behalf of the transferor alone. The transferor shall be deemed to remain the holder of such share until the same has been registered as having been transferred to the transferee in the Register of Members. | |
12.3 | The Board may refuse to recognise any instrument of transfer unless it is accompanied by the certificate in respect of the shares to which it relates and by such other evidence as the Board may reasonably require to show the right of the transferor to make the transfer. | |
12.4 | The joint holders of any share may transfer such share to one or more of such joint holders, and the surviving holder or holders of any share previously held by them jointly with a deceased Member may transfer any such share to the executors or administrators of such deceased Member. | |
12.5 | The Board may in its sole discretion and without assigning any reason therefor refuse to register the transfer of a share. The Board shall refuse to register a transfer unless all applicable consents, authorisations and permissions of any governmental body or agency in Bermuda have been obtained. If the Board refuses to register a transfer of any share the Secretary shall, within three months after the date on which the transfer was lodged with the Company, send to the transferor and transferee notice of the refusal. Without limiting the generality of the foregoing, the Board may in its sole discretion refuse to register any transfer of shares if it appears to the Board that any non-de minimis adverse tax, regulatory or legal consequences to the Company, any of its subsidiaries or any direct or indirect holder of shares would result from such transfer. | |
12.6 | Notwithstanding anything to the contrary in these Bye-laws, shares may be transferred without a written instrument if transferred by an appointed agent (within the meaning of the Act) or otherwise in accordance with the Act. |
13. | Transmission of Registered Shares |
13.1 | In the case of the death of a Member, the survivor or survivors where the deceased Member was a joint holder, and the legal personal representatives of the deceased Member where the deceased Member was a sole holder, shall be the only persons recognised by the Company as having any title to the deceased Member’s interest in the shares. Nothing herein contained shall release the estate of a deceased joint |
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holder from any liability in respect of any share which had been jointly held by such deceased Member with other persons. Subject to the Act, for the purpose of this Bye-law, legal personal representative means the executor or administrator of a deceased Member or such other person as the Board may, in its sole discretion, decide as being properly authorised to deal with the shares of a deceased Member. |
13.2 | Any person becoming entitled to a share in consequence of the death or bankruptcy of any Member may be registered as a Member upon such evidence as the Board may deem sufficient or may elect to nominate some person to be registered as a transferee of such share, and in such case the person becoming entitled shall execute in favour of such nominee an instrument of transfer in writing in the form, or as near thereto as circumstances admit, of the following: |
• (the “Company”)
Signed by: | In the presence of: | |
Transferor | Witness | |
Transferee | Witness |
13.3 | On the presentation of the foregoing materials to the Board, accompanied by such evidence as the Board may require to prove the title of the transferor, the transferee shall be registered as a Member. Notwithstanding the foregoing, the Board shall, in any case, have the same right to refuse to register the transfer as it would have had in the case of a transfer of the share by that Member before such Member’s death or bankruptcy, as the case may be. | |
13.4 | Where two or more persons are registered as joint holders of a share or shares, then in the event of the death of any joint holder or holders the remaining joint holder or holders shall be absolutely entitled to such share or shares and the |
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Company shall recognise no claim in respect of the estate of any joint holder except in the case of the last survivor of such joint holders. |
14. | Power to Alter Capital |
14.1 | The Company may if authorised by resolution of the Members increase, divide, consolidate, subdivide, change the currency denomination of, diminish or otherwise alter or reduce its share capital in any manner permitted by the Act. | |
14.2 | Where, on any alteration or reduction of share capital, fractions of shares or some other difficulty would arise, the Board may deal with or resolve the same in such manner as it thinks fit. |
15. | Variation of Rights Attaching to Shares |
16. | Dividends |
16.1 | The Board may, subject to these Bye-laws and in accordance with the Act, and subject to any rights or restrictions for the time being lawfully attached to any class or series of shares, declare a dividend to be paid to the Members, in proportion to the number of shares held by them, and such dividend may be paid in cash or wholly or partly in specie in which case the Board may fix the value for distribution in specie of any assets. No unpaid dividend shall bear interest as against the Company. |
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16.2 | The Board may fix any date as the record date for determining the Members entitled to receive any dividend. | |
16.3 | The Company may pay dividends in proportion to the amount paid up on each share where a larger amount is paid up on some shares than on others. | |
16.4 | The Board may declare and make such other distributions (in cash or in specie) to the Members as may be lawfully made out of the assets of the Company. No unpaid distribution shall bear interest as against the Company. |
17. | Power to Set Aside Profits |
18. | Method of Payment |
18.1 | Any dividend, interest, or other moneys payable in cash in respect of the shares may be paid by cheque or draft sent through the post directed to the Member at such Member’s address in the Register of Members, or to such person and to such address as the holder may in writing direct. | |
18.2 | In the case of joint holders of shares, any dividend, interest or other moneys payable in cash in respect of shares may be paid by cheque or draft sent through the post directed to the address of the holder first named in the Register of Members, or to such person and to such address as the joint holders may in writing direct. If two or more persons are registered as joint holders of any shares any one can give an effectual receipt for any dividend paid in respect of such shares. | |
18.3 | The Board may deduct from the dividends or distributions payable to any Member all moneys due from such Member to the Company on account of calls or otherwise. |
19. | Capitalisation |
19.1 | The Board may capitalise any amount for the time being standing to the credit of any of the Company’s share premium or other reserve accounts or to the credit of the profit and loss account or otherwise available for distribution by applying such amount in paying up unissued shares to be allotted as fully paid bonus shares pro rata to the Members. |
19.2 | The Board may capitalise any amount for the time being standing to the credit of a reserve account or amounts otherwise available for dividend or distribution by applying such amounts in paying up in full, partly or nil paid shares of those Members who would have been entitled to such amounts if they were distributed by way of dividend or distribution. |
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20. | Annual General Meetings |
21. | Special General Meetings |
22. | Requisitioned General Meetings |
23. | Notice |
23.1 | At least five days’ notice of an annual general meeting shall be given to each Member entitled to attend and vote thereat, stating the date, place and time at which the meeting is to be held, that the election of Directors will take place thereat, and as far as practicable, the other business to be conducted at the meeting. | |
23.2 | At least five days’ notice of a special general meeting shall be given to each Member entitled to attend and vote thereat, stating the date, time, place and the general nature of the business to be considered at the meeting. | |
23.3 | The Board may fix any date as the record date for determining the Members entitled to receive notice of and to vote at any general meeting. | |
23.4 | A general meeting shall, notwithstanding that it is called on shorter notice than that specified in these Bye-laws, be deemed to have been properly called if it is so agreed by (i) all the Members entitled to attend and vote thereat in the case of an annual general meeting; and (ii) by a majority in number of the Members having the right to attend and vote at the meeting, being a majority together holding not less than 95% in nominal value of the shares giving a right to attend and vote thereat in the case of a special general meeting. | |
23.5 | The accidental omission to give notice of a general meeting to, or the non-receipt of a notice of a general meeting by, any person entitled to receive notice shall not invalidate the proceedings at that meeting. |
24. | Giving Notice and Access |
24.1 | A notice may be given by the Company to a Member: |
(a) | by delivering it to such Member in person; or |
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(b) | by sending it by post 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. |
24.2 | Any notice required to be given to a Member shall, with respect to any shares held jointly by two or more persons, be given to whichever of such persons is named first in the Register of Members and notice so given shall be sufficient notice to all the holders of such shares. | |
24.3 | Any notice (save for one delivered in accordance with Bye-law 24.4) shall be deemed to have been delivered at the time when the same would be delivered in the ordinary course of transmission, but in all events such notice shall be deemed to have been delivered not later than ten (10) days after the date on which such notice is deposited, with postage prepaid, in the mail of the United States, Bermuda or any member state of the European Union. In proving such delivery, it shall be sufficient to prove that the notice was properly addressed and prepaid, if posted, and the time when it was posted, delivered to the courier, or transmitted by electronic means. | |
24.4 | Where a Member indicates his consent (in a form and manner satisfactory to the Board) to receive information or documents by accessing them on a website rather than by other means, the Board may deliver such information or documents by sending a notice to the Member in accordance with Bye-law 24.1 of the availability of such information or documents on a website and including in such notice the address of the website, the place on the website where the information or document may be found, and instructions as to how the information or document may be accessed on the website. | |
24.5 | In the case of information or documents delivered in accordance with Bye-law 24.4, delivery shall be deemed to have been made upon the later of (i) the date that the Member is notified in accordance with that Bye-law; and (ii) the date that the information or document is published on the website. |
25. | Postponement of General Meeting |
26. | Electronic Participation in Meetings |
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27. | Quorum at General Meetings |
27.1 | At any general meeting two or more persons present in person and representing in person or by proxy in excess of 50% of the total issued voting shares in the Company at the commencement of the meeting shall form a quorum for the transaction of business, provided that if the Company shall at any time have only one Member, one Member present in person or by proxy shall form a quorum for the transaction of business at any general meeting held during such time. | |
27.2 | If within half an hour from the time appointed for the meeting a quorum is not present, then, in the case of a meeting convened on a requisition, the meeting shall be deemed cancelled and, in any other case, the meeting shall stand adjourned to the same day one week later, at the same time and place or to such other day, time or place as the Secretary may determine. Unless the meeting is adjourned to a specific date, time and place announced at the meeting being adjourned, fresh notice of the resumption of the meeting shall be given to each Member entitled to attend and vote thereat in accordance with these Bye-laws. |
28. | Chairman to Preside at General Meetings |
29. | Voting on Resolutions |
29.1 | Subject to the Act and these Bye-laws, any question proposed for the consideration of the Members at any general meeting shall be decided by the affirmative votes of a majority of the votes cast in accordance with these Bye-laws and in the case of an equality of votes the resolution shall fail. | |
29.2 | No Member shall be entitled to vote at a general meeting unless such Member has paid all the calls on all shares held by such Member. | |
29.3 | At any general meeting a resolution put to the vote of the meeting shall, in the first instance, be voted upon by a show of hands and, subject to any rights or restrictions for the time being lawfully attached to any class or series of shares and subject to these Bye-laws, every Member present in person and every person holding a valid proxy at such meeting shall be entitled to one vote for each share carrying the right to vote of which such person is the holder or for which such person holds a proxy (subject to any adjustments or eliminations of voting power of any share pursuant to Bye-laws 33 and 34). |
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29.4 | In the event that a Member participates in a general meeting by telephonic or electronic means, the chairman of the meeting shall direct the manner in which such Member may cast his vote or votes on a show of hands. | |
29.5 | At any general meeting if an amendment is proposed to any resolution under consideration and the chairman of the meeting rules on whether or not the proposed amendment is out of order, the proceedings on the substantive resolution shall not be invalidated by any error in such ruling. | |
29.6 | At any general meeting a declaration by the chairman of the meeting that a question proposed for consideration has, on a show of hands, been carried, or carried unanimously, or by a particular majority, or lost, and an entry to that effect in a book containing the minutes of the proceedings of the Company shall, subject to these Bye-laws, be conclusive evidence of that fact. |
30. | Power to Demand a Vote on a Poll |
30.1 | Notwithstanding the foregoing, at any general meeting a poll may be demanded on a resolution put to the vote at the meeting by any of the following persons: |
(a) | the chairman of such meeting; or | |
(b) | at least three Members present in person or represented by proxy; or | |
(c) | any Member or Members present in person or represented by proxy and holding between them not less than one-tenth of the total voting rights of all the Members having the right to vote at such meeting; or | |
(d) | any Member or Members present in person or represented by proxy and holding between them voting shares on which an aggregate sum has been paid up equal to not less than one-tenth of the total amount paid up on all such voting shares. |
30.2 | Where a poll is demanded, the vote shall be counted by ballot as described herein, or in the case of a general meeting at which one or more Members are present by telephonic or electronic means, in such manner as the chairman of the meeting may direct, and the result of such poll shall be deemed to be the resolution of the meeting at which the poll was demanded and shall replace any previous resolution upon the same matter which has been the subject of a show of hands. A person entitled to more than one vote need not use all his votes or cast all the votes he uses in the same way. | |
30.3 | A poll demanded for the purpose of electing a chairman of the meeting or on a question of adjournment shall be taken forthwith. A poll demanded on any other question shall be taken at such time and in such manner during such meeting as the chairman (or acting chairman) of the meeting may direct. Any business other than that upon which a poll has been demanded may be conducted pending the taking of the poll. |
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30.4 | Where a vote is taken by poll, each person physically present and entitled to vote shall be furnished with a ballot paper on which such person shall record his vote in such manner as shall be determined at the meeting having regard to the nature of the question on which the vote is taken, and each ballot paper shall be signed or initialled or otherwise marked so as to identify the voter and the registered holder in the case of a proxy. Each person present by telephonic or electronic means shall cast his vote in such manner as the chairman shall direct. At the conclusion of the poll, the ballot papers and votes cast in accordance with the chairman’s directions shall be examined and counted by a committee of not less than two Members or proxy holders appointed by the chairman for the purpose and the result of the poll shall be declared by the chairman. |
31. | Voting by Joint Holders of Shares |
32. | Votes of Members – General |
33. | Adjustment of Voting Power |
33.1 | The voting power of all shares is hereby adjusted (and shall be automatically adjusted in the future) to the extent necessary so that there is no 9.5% U.S. Member. The Board shall implement the foregoing in the manner provided herein; provided, however, that the foregoing provision and the remainder of this Bye-law 33 shall not apply in the event that one Member owns greater than 75% of the voting power of the issued shares of the Company determined without applying the voting power adjustments or eliminations under this Bye-law 33. | |
33.2 | The Board shall from time to time, including prior to any time at which a vote of Members is taken, take all reasonable steps, including those specified in Bye-law 37, through communications with Members or otherwise, necessary to ascertain whether there exists, or will exist at the time any vote of Members is taken, a Tentative 9.5% U.S. Member. | |
33.3 | In the event that a Tentative 9.5% U.S. Member exists, the aggregate votes conferred by shares held by a Member and treated as Controlled Shares of that Tentative 9.5% U.S. Member shall be reduced to the extent necessary such that |
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the Controlled Shares of the Tentative 9.5% U.S. Member will constitute less than 9.5% of the voting power of all issued and outstanding shares. In applying the previous sentence where shares held by more than one Member are treated as Controlled Shares of such Tentative 9.5% U.S. Member, the reduction in votes shall apply to such Members in descending order according to their respective Attribution Percentages, provided that, in the event of a tie, the reduction shall apply pro rata to such Members. The votes of Members owning no shares treated as Controlled Shares of any Tentative 9.5% U.S. Member shall, in the aggregate, be increased by the same number of votes subject to reduction as described above; provided, however, that no shares shall be conferred votes to the extent that doing so will cause any person to be treated as a 9.5% U.S. Member. Such increase shall be apportioned to all such Members in proportion to their voting power at that time, provided that such increase shall be limited to the extent necessary to avoid causing any person to be a 9.5% U.S. Member. The adjustments of voting power described in this Bye-law 33 shall apply repeatedly until there is no 9.5% U.S. Member. The Board of Directors may deviate from any of the principles described in this Bye-law 33 and determine that shares held by a Member shall carry different voting rights as it determines appropriate (i) to avoid the existence of any 9.5% U.S. Member or (ii) to avoid adverse tax, legal or regulatory consequences to the Company, any subsidiary of the Company, or any direct or indirect holder of shares. For the avoidance of doubt, in applying the provisions of Bye-laws 33 and 34, a share may carry a fraction of a vote. |
34. | Other Adjustments of Voting Power |
35. | Professional Assistance |
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36. | Board Determination Binding |
37. | Requirement of Members to Provide Information and Notice |
37.1 | The Board shall have the authority to request from any direct or indirect holder of shares, and such holder of shares shall provide, such information as the Board may reasonably request for the purpose of determining whether any holder’s voting rights are to be adjusted. If such holder fails to respond to such a request, or submits incomplete or inaccurate information in response to such a request, the Board may determine in its sole discretion that such holder’s shares shall carry no voting rights, in which case such holder shall not exercise any voting rights in respect of such shares until otherwise determined by the Board. | |
37.2 | Any direct or indirect holder of shares shall give notice to the Company within ten days following the date that such holder acquires actual knowledge that it is the direct or indirect holder of Controlled Shares of 9.5% or more of the voting power of all issued shares of the Company (without giving effect to voting power adjustments or eliminations under Bye-laws 33 and 34. | |
37.3 | Notwithstanding the foregoing, no Member shall be liable to any other Member or the Company for any losses or damages resulting from such Member’s failure to respond to, or submission of incomplete or inaccurate information in response to, a request under Bye-law 37.1 or from such Member’s failure to give notice under Bye-law 37.2. | |
37.4 | Any Confidential Information shall be used by the Company solely for the purposes contemplated by this Bye-law 37(except as may be required otherwise by applicable law or regulation). The Company shall hold such Confidential Information in strict confidence and shall not disclose any Confidential Information that it receives, except (i) to the U.S. Internal Revenue Service if and to the extent the Confidential Information is required to be provided thereto, (ii) to any firm or organization engaged by the Company pursuant to Bye-law 35 to assist the Company in applying the principles of Bye-laws 33 and 34, or (iii) as otherwise required by applicable law or regulation. | |
37.5 | For the avoidance of doubt, the Company shall be permitted to disclose to the Members and others the relative voting percentages of all Members after application of Bye-laws 33 and 34. At the written request of a Member, the Confidential Information of such Member shall be destroyed or returned to such Member after the later to occur of (i) such Member ceasing to be a Member or (ii) the last day of the seventh (7th) year after the year during which the Confidential Information was obtained by the Company, provided that the Board may determine that such Confidential Information should instead be |
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retained for a longer period in order to avoid adverse tax, legal or regulatory consequences to the Company, any of its subsidiaries or any direct or indirect holder of shares. |
38. | Instrument of Proxy |
38.1 | An instrument appointing a proxy shall be in writing in substantially the following form or such other form as the chairman of the meeting shall accept: |
• (the “Company”)
38.2 | The instrument appointing 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 instrument appointing a proxy proposes to vote, and an instrument appointing a proxy which is not received in the manner so prescribed 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. | Representation of Corporate Member |
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. |
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40. | Adjournment of General Meeting |
41. | Written Resolutions |
41.1 | Subject to these Bye-laws, anything which may be done by resolution in general meeting (whether by Members of the Company generally or by any class of the Members) may be done without a meeting by written resolution in accordance with this Bye-law, provided that any such resolution shall be valid only if the Board in its sole discretion determines that (i) none of the Members signed the written resolution in the United States, and (ii) the written resolution or its use would not result in a more than de minimis adverse tax, regulatory or legal consequence to the Company, any of its subsidiaries or any direct or indirect holder of shares. | |
41.2 | Notice of a written resolution, along with a copy of such written resolution, shall be given 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 written 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, all the Members who at the date of the resolution would be entitled to attend the meeting and vote on the resolution. | |
41.4 | A written resolution may be signed in any number of counterparts. | |
41.5 | A written resolution 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 written resolution made in accordance with this Bye-law shall constitute minutes for the purposes of the Act. | |
41.7 | This Bye-law shall not apply to: |
(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 a written resolution is the date when the resolution is signed by, or in the case of a Member that is a |
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corporation, on behalf of, the last Member whose signature is required pursuant to Bye-law 41.3, 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. |
42. | Directors’ Attendance at General Meetings |
43. | Voting of Certain Subsidiary Shares |
44. | Bye-laws or Articles of Association of Certain Subsidiaries |
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45. | Election of Directors |
45.1 | The Board of Directors shall be elected or appointed in the first place at the statutory meeting of the Company and thereafter, except in the case of a casual vacancy, at the annual general meeting or at any special general meeting called for that purpose. | |
45.2 | At any general meeting the Members may authorise the Board to fill any vacancy in their number left unfilled at a general meeting. |
46. | Number of Directors |
47. | Term of Office of Directors |
48. | Removal of Directors |
48.1 | 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 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. | |
48.2 | If a Director is removed from the Board under this Bye-law the Members may fill the vacancy at the meeting at which such Director is removed. In the absence of such election or appointment, the Board may fill the vacancy. |
49. | Vacancy in the Office of Director |
49.1 | The office of Director shall be vacated if the Director: |
(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; | |
(c) | is or becomes of unsound mind or dies; or | |
(d) | resigns his office by notice to the Company. |
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49.2 | 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. |
50. | Remuneration of Directors |
51. | Defect in Appointment |
52. | Directors to Manage Business |
53. | Powers of the Board of Directors |
(a) | appoint, suspend, or remove any Officer, 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 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 Chief Executive Officerand/or President 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; |
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(e) | by power of attorney, appoint any company, firm, person or body of persons, whether nominated directly or indirectly by the Board, to be an attorney of the Company for such purposes and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Board) and for such period and subject to such conditions as it may think fit and any such power of attorney may contain such provisions for the protection and convenience of persons dealing with any such attorney as the Board may think fit and may also authorise any such attorney to sub-delegate all or any of the powers, authorities and discretions so vested in the attorney; | |
(f) | procure that the Company pays all expenses incurred in promoting and incorporating the Company; | |
(g) | delegate any of its powers (including the power to sub-delegate) to a committee of one or more persons appointed by the Board which may consist partly or entirely ofnon-Directors, provided that every such committee shall conform to such directions as the Board shall impose on them, and provided further that the meetings and proceedings of any such committee shall be governed by the provisions of these Bye-laws regulating the meetings and proceedings of the Board, so far as the same are applicable and are not superseded by directions imposed by the Board; | |
(h) | delegate any of its powers (including the power to sub-delegate) to any person on such terms and in such manner as the Board may see fit; | |
(i) | present any petition and make any application in connection with the liquidation or reorganisation of the Company; | |
(j) | in connection with the issue of any share, pay such commission and brokerage as may be permitted by law; and | |
(k) | authorise any company, firm, person or body of persons to act on behalf of the Company for any specific purpose and in connection therewith to execute any deed, agreement, document or instrument on behalf of the Company. |
54. | Register of Directors and Officers |
55. | Appointment of Officers |
56. | Appointment of Secretary |
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57. | Duties of Officers |
58. | Remuneration of Officers |
59. | Conflicts of Interest |
59.1 | 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. | |
59.2 | 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. | |
59.3 | 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. |
60. | Indemnification and Exculpation of Directors and Officers |
60.1 | 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 to the fullest extent permitted by law 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 matter in respect of any fraud |
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or dishonesty which may attach to any of the said persons. Each Member agrees to waive any claim or right of action such Member might have, whether individually or by or in the right of the Company, against any Director, Secretary or other Officer on account of any action taken by such Director, Secretary or other Officer, or the failure of such Director, Secretary or other Officer to take any action in the performance of his duties with or for the Company or any subsidiary thereof, provided that such waiver shall not extend to any matter in respect of any fraud or dishonesty which may attach to such Director, Secretary or other Officer. |
60.2 | The Company shall purchase and maintain insurance for the benefit of any Director, Secretary or other Officer against any liability incurred by him under the Act in his capacity as Director, Secretary or other Officer or indemnifying such Director, Secretary or other 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 such Director, Secretary or other Officer may be guilty in relation to the Company or any subsidiary thereof. | |
60.3 | The Company shall to the fullest extent permitted by law advance moneys to any Director, Secretary or other Officer for the costs, charges and expenses incurred by such Director, Secretary or other Officer in defending any civil or criminal proceedings against him, on condition that such Director, Secretary or other Officer shall repay the advance if any allegation of fraud or dishonesty is proved against him. |
61. | Board Meetings |
62. | Notice of Board Meetings |
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63. | Electronic Participation in Meetings |
64. | Quorum at Board Meetings |
65. | Board to Continue in the Event of Vacancy |
66. | Chairman to Preside at Board Meetings |
67. | Written Resolutions |
68. | Validity of Prior Acts of the Board |
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69. | Minutes |
(a) | of all elections and appointments of Officers; | |
(b) | of the names of the Directors present at each meeting of the Board and of any committee appointed by the Board; and | |
(c) | of all resolutions and proceedings of general meetings of the Members, meetings of the Board, meetings of managers and meetings of committees appointed by the Board. |
70. | Place Where Corporate Records Kept |
71. | Form and Use of Seal |
71.1 | 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. | |
71.2 | 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 authorised by the Board for that purpose. | |
71.3 | A Resident Representative may, but need not, affix the seal of the Company to certify the authenticity of any copies of documents. |
72. | Books of Account |
72.1 | 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 amounts of money received and expended by the Company and the matters in respect of which the receipt and expenditure relates; | |
(b) | all sales and purchases of goods by the Company; and | |
(c) | all assets and liabilities of the Company. |
72.2 | 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. |
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73. | Financial Year End |
74. | Annual Audit |
75. | Appointment of Auditor |
75.1 | Subject to the Act, the Audit Committee of the Board shall be directly responsible for the nomination of the Auditor of the accounts of the Company for each fiscal year, which nomination shall be submitted to the Members for their approval at the annual general meeting or at a subsequent special general meeting. | |
75.2 | 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. |
76. | Remuneration of Auditor |
77. | Duties of Auditor |
77.1 | 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. |
77.2 | 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. |
78. | Access to Records |
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79. | Financial Statements |
80. | Distribution of Auditor’s Report |
81. | Vacancy in the Office of Auditor |
82. | Winding Up |
83. | Changes to Bye-laws |
84. | Changes to the Memorandum of Association |
85. | Discontinuance |
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THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” ITEMS ITEMS 1, 2 and 3. PLEASE MARK YOUR VOTE IN BOX IN THE FOLLOWING MANNER x USING DARK INK ONLY. | Please mark your votes as indicated in this example | ý |
THIS PROXY WILL BE VOTED IN ACCORDANCE WITH SPECIFICATIONS MADE. IF NO CHOICES ARE INDICATED, THIS PROXY WILL BE VOTED “FOR” ITEMS 1, 2 AND 3. | |||||||||||||||||||
1. | To elect the following nominees to the Company’s Board of Directors: Nominees: 01 H. Furlong Baldwin, 02 Dan R. Carmichael, 03 A. John Hass, 04 Edmund R. Megna, 05 Michael D. Price, 06 Peter T. Pruitt, and 07 James P. Slattery. | FOR o | WITHHOLD o | FOR ALL EXCEPT o | FOR o | AGAINST o | ABSTAIN o | ||||||||||||
2. | To consider and take action upon a proposal to approve the Amended and Restated Bye-laws of the Company. | ||||||||||||||||||
3. | To consider and take action upon a proposal to approve the nomination of KPMG, a Bermuda partnership, as the Company’s independent registered public accounting firm for the 2009 fiscal year and to authorize the Audit Committee to set the renumeration of such independent registered public accounting firm. | o | o | o | |||||||||||||||
Upon such other business as may properly come before the meeting or any postponement or adjournment thereof. | |||||||||||||||||||
PLACE “X” HERE IF YOU PLAN TO ATTEND AND VOTE YOUR SHARES AT THE MEETING | o | ||||||||||||||||||
(INSTRUCTIONS: To withhold authority to vote for any individual nominee, mark the “For All Except” box and write that nominee’s name in the space provided below.) | |||||||||||||||||||
Mark Here for Address Change or Comments SEE REVERSE | o | ||||||||||||||||||
Signature | Signature | Date | |||||||||||||||||
Please sign exactly as your name appears above. If shares are held in the name of joint holders, each should sign. If you are signing as a trustee, guardian, executor, etc., please so indicate. | |||||||||||||||||||
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Ù FOLD AND DETACH HEREÙ |
Important Notice Regarding the Availability of Proxy Materials for the Platinum Underwriters
Holdings, Ltd. 2009 Annual General Meeting of Shareholders to be Held on April 29, 2009.
The proxy statement, proxy and 2009 Annual Report to Shareholders
are available at www.platinumre.com/proxymaterials.
Platinum Underwriters Holdings, Ltd. |
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PLATINUM UNDERWRITERS HOLDINGS, LTD. |
The Belvedere Building
69 Pitts Bay Road
2nd Floor
Pembroke HM 08 Bermuda
This proxy is solicited on behalf of the Board of Directors and will be voted FOR Items 1, 2 and 3 if no instructions to the contrary are indicated.
The undersigned hereby appoints DAN R. CARMICHAEL, MICHAEL D. PRICE and MICHAEL E. LOMBARDOZZI, jointly and severally, proxies, with the power of substitution and with the authority in each to act in the absence of the other, to vote all shares the undersigned is entitled to vote at the Annual General Meeting of Shareholders on April 29, 2009 or postponements or adjournments thereof on all matters that may properly come before the meeting, and particularly to vote as hereinafter indicated. The undersigned hereby acknowledges receipt of the Notice of Annual General Meeting of Shareholders and Proxy Statement dated March 30, 2009.
IMPORTANT - This proxy must be signed and dated on the reverse side.
BNY MELLON SHAREOWNER SERVICES P.O. BOX 3550 SOUTH HACKENSACK, NJ 07606-9250 | ||
Address Change/Comments (Mark the corresponding box on the reverse side) | ||
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Ù FOLD AND DETACH HEREÙ |