Exhibit 4.7
EXECUTION COPY
BANC OF AMERICA SECURITIES LLC
$100,000,000 AGGREGATE PRINCIPAL AMOUNT
ODYSSEY RE HOLDINGS CORP.
4.375% CONVERTIBLE SENIOR DEBENTURES
DUE 2022
RESALE REGISTRATION RIGHTS AGREEMENT
DATED JUNE 18, 2002
RESALE REGISTRATION RIGHTS AGREEMENT, dated as June 18, 2002, among Odyssey
Re Holdings Corp., a Delaware corporation (together with any successor entity,
herein referred to as the "COMPANY"), and Banc of America Securities LLC, as the
initial purchaser (the "INITIAL PURCHASER") under the Purchase Agreement (as
defined below).
Pursuant to the Purchase Agreement, dated as of June 12, 2002, between the
Company and Banc of America Securities LLC, as the Initial Purchaser (the
"PURCHASE AGREEMENT"), the Initial Purchaser has agreed to purchase from the
Company $100,000,000 ($110,000,000 if the Initial Purchaser exercises its
over-allotment option in full) aggregate principal amount of 4.375% Convertible
Senior Debentures due 2022 (the "DEBENTURES"). The Debentures will be
convertible into fully paid, nonassessable shares of common stock, par value
$.01 per share, of the Company (the "COMMON STOCK"). The Debentures will be
convertible on the terms, and subject to the conditions, set forth in the
Indenture (as defined herein). To induce the Initial Purchaser to purchase the
Debentures, the Company has agreed to provide the registration rights set forth
in this Agreement pursuant to Section 5(h) of the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. Capitalized terms used in this Agreement without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following capitalized terms shall have the following
meanings:
"ADDITIONAL INTEREST": As defined in Section 3(a) hereof.
"ADDITIONAL INTEREST PAYMENT DATE": Each June 15 and December 15.
"AFFILIATE": An affiliate of any specified person means any other person
which, directly or indirectly, is in control of, is controlled by, or is under
common control with, such specified person. For purposes of this definition,
control of a person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such person whether by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"AGREEMENT": This Resale Registration Rights Agreement.
"AMENDED EFFECTIVENESS DEADLINE DATE": As defined in Section 2(d) hereof.
"BLUE SKY APPLICATION": As defined in Section 6(a)(i) hereof.
"BUSINESS DAY": The definition of "Business Day" in the Indenture.
"COMMISSION": The Securities and Exchange Commission.
"COMMON STOCK": As defined in the preamble hereto.
"COMPANY": As defined in the preamble hereto.
"DEBENTURES": As defined in the preamble hereto.
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"EFFECTIVENESS PERIOD": As defined in Section 2(a)(iii) hereof.
"EFFECTIVENESS TARGET DATE": As defined in Section 2(a)(ii) hereof.
"EXCHANGE ACT": The Securities Exchange Act of 1934, as amended and the
rules and regulations promulgated by the Commission thereunder.
"HOLDER": A Person who owns, beneficially or otherwise, Transfer Restricted
Securities.
"INDEMNIFIED HOLDER": As defined in Section 6(a) hereof.
"INDENTURE": The Indenture, dated as of June 18, 2002 between the Company
and The Bank of New York, as trustee (the "Trustee"), pursuant to which the
Debentures are to be issued, as such Indenture is amended, modified or
supplemented from time to time in accordance with the terms thereof.
"INITIAL PURCHASER": As defined in the preamble hereto.
"MAJORITY OF HOLDERS": Holders holding over 50% of the aggregate principal
amount of Debentures outstanding; provided that, for the purpose of this
definition, a holder of shares of Common Stock which constitute Transfer
Restricted Securities and issued upon conversion of the Debentures shall be
deemed to hold an aggregate principal amount at maturity of Debentures (in
addition to the principal amount at maturity of Debentures held by such holder)
equal to the quotient of (x) the number of such shares of Common Stock held by
such holder and (y) the conversion rate in effect at the time of such conversion
as determined in accordance with the Indenture.
"NASD": The National Association of Securities Dealers, Inc.
"NOTICE AND QUESTIONNAIRE": A written notice executed by the respective
Holder and delivered to the Company containing substantially the information
called for by the Form of Selling Securityholder Notice and Questionnaire
attached as Appendix A to the Offering Memorandum.
"NOTICE HOLDER": A Holder delivering a Notice and Questionnaire.
"OFFERING MEMORANDUM": The final offering memorandum of the Company
relating to the Debentures dated June 12, 2002.
"PERSON": An individual, partnership, corporation, company, unincorporated
organization, trust, joint venture or a government or agency or political
subdivision thereof.
"PURCHASE AGREEMENT": As defined in the preamble hereto.
"PROSPECTUS": The prospectus included in the Shelf Registration Statement,
as amended or supplemented by any prospectus supplement and by all other
amendments thereto, including post-effective amendments, and all material
incorporated by reference into such prospectus.
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"RECORD HOLDER": With respect to any Additional Interest Payment Date, each
Person who is a Holder on the 15th day preceding the relevant Additional
Interest Payment Date. In the case of a Holder of shares of Common Stock issued
upon conversion of the Debentures, "Record Holder" shall mean each Person who is
a Holder of shares of Common Stock which constitute Transfer Restricted
Securities on the 15th day preceding the relevant Additional Interest Payment
Date.
"REGISTRATION DEFAULT": As defined in Section 3(a) hereof.
"RULE 144": Rule 144 under the Securities Act as such Rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by the
Commission.
"SECURITIES ACT": The Securities Act of 1933, as amended and the rules and
regulations promulgated by the Commission thereunder.
"SHELF FILING DEADLINE": As defined in Section 2(a)(i) hereof.
"SHELF REGISTRATION STATEMENT": As defined in Section 2(a)(i) hereof and,
unless the context requires otherwise, shall also refer to any Subsequent Shelf
Registration Statement.
"SUBSEQUENT SHELF REGISTRATION STATEMENT": As defined in Section 2(c)
hereof.
"SUSPENSION NOTICE": As defined in Section 4(c) hereof.
"SUSPENSION PERIOD": As defined in Section 4(b)(i) hereof.
"TIA": The Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder, in each case, as in effect on the date
the Indenture is qualified under the TIA.
"TRANSFER RESTRICTED SECURITIES": Each Debenture and each share of Common
Stock issued upon conversion of the Debentures until the earlier of:
(i) the date on which such Debenture or such share of Common Stock
issued upon conversion has been effectively registered under the Securities
Act and disposed of in accordance with the Shelf Registration Statement;
(ii) the date on which such Debenture or such share of Common Stock
issued upon conversion is transferred in compliance with Rule 144 or may be
sold or transferred by a person who is not an Affiliate of the Company
pursuant to Rule 144 (or any other similar provision then in force) without
any volume or manner of sale restrictions thereunder; or
(iii) the date on which such Debenture or such share of Common Stock
issued upon conversion ceases to be outstanding (whether as a result of
redemption, repurchase and cancellation, conversion or otherwise).
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"UNDERWRITTEN REGISTRATION": A registration in which Debentures of the
Company are sold to an underwriter for reoffering to the public.
Unless the context otherwise requires, the singular includes the
plural, and words in the plural include the singular.
2. Shelf Registration.
(a) The Company shall:
(i) not later than 90 days after the date hereof (the "SHELF
FILING DEADLINE"), cause to be filed a shelf registration statement
for an offering to be made on a delayed or continuous basis in
accordance with Rule 415 under the Securities Act (the "SHELF
REGISTRATION STATEMENT"), which Shelf Registration Statement, among
other things, shall provide for resales of all Transfer Restricted
Securities held by Holders that become a Notice Holder pursuant to the
terms of Section 2(b) hereof;
(ii) use its reasonable best efforts to cause the Shelf
Registration Statement to be declared effective by the Commission as
promptly as practicable but not later than 180 days after the date
hereof (the "EFFECTIVENESS TARGET DATE"); and
(iii) use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective, supplemented and
amended as required by the provisions of Section 4(b) hereof to the
extent necessary to ensure that (A) it is available for resales by the
Holders of Transfer Restricted Securities entitled, subject to Section
2(b), to the benefit of this Agreement and (B) conforms with the
requirements of this Agreement and the Securities Act, for a period
(the "EFFECTIVENESS PERIOD") until the earliest of:
(1) two years following the last date of original issuance
of any of the Debentures;
(2) the date when the Holders of Transfer Restricted
Securities are able to sell all such Transfer Restricted
Securities immediately without restriction pursuant to Rule
144(k) under the Securities Act;
(3) the date when all of the Transfer Restricted Securities
of those Holders that become Notice Holders pursuant to the terms
of Section 2(b) hereof are registered under the Shelf
Registration Statement and disposed of in accordance with the
Shelf Registration Statement; or
(4) the date when all Transfer Restricted Securities have
ceased to be outstanding (whether as a result of redemption,
repurchase and cancellation, conversion or otherwise).
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(b) At the time the Shelf Registration Statement is declared
effective, each Holder that became a Notice Holder on or prior to the date
10 Business Days prior to such time of effectiveness shall be named as a
selling securityholder in the Shelf Registration Statement and the related
Prospectus in such a manner as to permit such Holder to deliver such
Prospectus to purchasers of Transfer Restricted Securities in accordance
with applicable law. None of the Company's securityholders (other than the
Holders of Transfer Restricted Securities and the Company and its
affiliates) shall have the right to include any of the Company's securities
in the Shelf Registration Statement.
(c) If the Shelf Registration Statement or any Subsequent Shelf
Registration Statement (as defined below) ceases to be effective for any
reason at any time during the Effectiveness Period (other than because all
Transfer Restricted Securities registered thereunder shall have been resold
pursuant thereto or shall have otherwise ceased to be Transfer Restricted
Securities), the Company shall use its best efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof, and in any
event shall within 30 days of such cessation of effectiveness amend the
Shelf Registration Statement in a manner reasonably expected to obtain the
withdrawal of the order suspending the effectiveness thereof, or file an
additional Shelf Registration Statement covering all outstanding Transfer
Restricted Securities as of the date of such filing (a "SUBSEQUENT SHELF
REGISTRATION STATEMENT"). If a Subsequent Shelf Registration Statement is
filed, the Company shall use its best efforts to cause the Subsequent Shelf
Registration Statement to become effective as promptly as is practicable
after such filing and to keep such registration statement (or Subsequent
Shelf Registration Statement) continuously effective until the end of the
Effectiveness Period.
(d) Each Holder agrees that if such Holder wishes to sell Transfer
Restricted Securities pursuant to a Shelf Registration Statement and
related Prospectus, it will do so only in accordance with this Section 2(d)
and Section 4(b). Each Holder wishing to sell Transfer Restricted
Securities pursuant to a Shelf Registration Statement and related
Prospectus agrees to deliver a Notice and Questionnaire to the Company at
least 5 Business Days prior to any intended distribution of Transfer
Restricted Securities under the Shelf Registration Statement. From and
after the date the Shelf Registration Statement is declared effective the
Company shall, as promptly as reasonably practicable after the date a
Notice and Questionnaire is delivered, and in any event upon the later of
(x) 30 Business Days after such date (but no earlier than 30 Business Days
after effectiveness) or (y) 30 Business Days after the expiration of any
Suspension Period in effect when the Notice and Questionnaire is delivered
or put into effect within 30 Business Days of such delivery date:
(i) if required by applicable law, rules and regulations, file
with the Commission a post-effective amendment to the Shelf
Registration Statement or prepare and, if required by applicable law,
file a supplement to the related Prospectus or a supplement or
amendment to any document incorporated therein by reference or file
any other required document so that the Holder delivering such Notice
and Questionnaire is named as a selling securityholder in the Shelf
Registration Statement and the related Prospectus in such a manner as
to permit such Holder to deliver such Prospectus to purchasers of the
Transfer Restricted
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Securities in accordance with applicable law and, if the Company shall
file a post-effective amendment to the Shelf Registration Statement,
use its best reasonable efforts to cause such post-effective amendment
to be declared effective under the Securities Act as promptly as is
practicable, but in any event by the date (the "AMENDED EFFECTIVENESS
DEADLINE DATE") that is 75 days after the date such post effective
amendment is required by this section to be filed:
(ii) provide such Holder copies of the any documents filed
pursuant to Section 2(d)(i); and
(iii) notify such Holder as promptly as practicable after the
effectiveness under the Securities Act of any post-effective amendment
filed pursuant to Section 2(d)(i);
provided that if such Notice and Questionnaire is delivered during a Suspension
Period, the Company shall so inform the Holder delivering such Notice and
Questionnaire and shall take the actions set forth in clauses (i), (ii) and
(iii) above upon expiration of the Suspension Period in accordance with Section
4(b). Notwithstanding anything contained herein to the contrary, (i) the Company
shall be under no obligation to name any Holder that is not a Notice Holder as a
selling securityholder in any Registration Statement or related Prospectus and
(ii) the Amendment Effectiveness Deadline Date shall be extended by up to 10
Business Days from the Expiration of a Suspension Period (and the Company shall
incur no obligation to pay Additional Interest during such extension) if such
Suspension Period shall be in effect on the Amendment Effectiveness Deadline
Date.
3. Additional Interest.
(a) If:
(i) the Shelf Registration Statement is not filed with the
Commission prior to or on the Shelf Filing Deadline;
(ii) the Shelf Registration Statement has not been declared
effective by the Commission prior to or on the Effectiveness Target
Date;
(iii) the Company has failed to perform its obligations set forth
in Section 2(d) within the time period required therein;
(iv) any post-effective amendment to a Shelf Registration filed
pursuant to Section 2(d)(i) has not become effective under the
Securities Act on or prior to the Amendment Effectiveness Deadline
Date;
(v) except as provided in Section 4(b)(i) hereof, the Shelf
Registration Statement is filed and declared effective but, during the
Effectiveness Period, shall thereafter cease to be effective or fail
to be usable for its intended purpose without being succeeded within
five Business Days by a post-effective amendment to the Shelf
Registration Statement, a supplement to the Prospectus or a report
filed with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of
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the Exchange Act to cure such failure and, in the case of a
post-effective amendment, is itself immediately declared effective; or
(vi) (A) prior to or on the 45th or 60th day, as the case may be,
of any Suspension Period, such suspension has not been terminated or
(B) Suspension Periods exceed an aggregate of 110 days in any 360 day
period,
(each such event referred to in foregoing clauses (i) through (iv), a
"REGISTRATION DEFAULT"), the Company hereby agrees to pay amounts ("ADDITIONAL
INTEREST") with respect to the Transfer Restricted Securities from and including
the day following the Registration Default to but excluding the earlier of (1)
the day on which the Registration Default has been cured and (2) the date the
Shelf Registration Statement is no longer required to be kept effective,
accruing at a rate:
(A) in respect of the Debentures, to each holder of
Debentures, (x) with respect to the first 90-day period during
which a Registration Default shall have occurred and be
continuing, equal to 0.25% per annum of the aggregate issue price
of the Debentures, and (y) with respect to the period commencing
on the 91st day following the day the Registration Default shall
have occurred and be continuing, equal to 0.50% per annum of the
aggregate issue price of the Debentures; provided that in no
event shall Liquidated Damages accrue at a rate per year
exceeding 0.50% of the aggregate issue price of the Debentures;
and
(B) in respect of any shares of Common Stock, to each holder
of shares of Common Stock issued upon conversion of Debentures,
(x) with respect to the first 90-day period in which a
Registration Default shall have occurred and be continuing, equal
to 0.25% per annum of the aggregate issue price to the date of
calculation, of each Debenture converted, and (y) with respect to
the period commencing the 91st day following the day the
Registration Default shall have occurred and be continuing, equal
to 0.50% per annum of the aggregate issue price plus accrued
original issue discount to the date of calculation, of each
Debenture converted; provided that in no event shall Liquidated
Damages accrue at a rate per year exceeding 0.50% of the
aggregate issue price plus accrued original issue discount to the
date of calculation, of the converted Debentures.
(b) All accrued Additional Interest shall be paid in arrears to Record
Holders by the Company on each Additional Interest Payment Date. Upon the
cure of all Registration Defaults relating to any particular Debenture or
share of Common Stock, the accrual of Additional Interest with respect to
such Debenture or share of Common Stock will cease.
All obligations of the Company set forth in this Section 3 that are
outstanding with respect to any Transfer Restricted Security at the time such
security ceases to be a Transfer
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Restricted Security shall survive until such time as all such obligations with
respect to such Transfer Restricted Security shall have been satisfied in full.
The Additional Interest set forth above shall be the exclusive monetary
remedy available to the Holders of Transfer Restricted Securities for each
Registration Default.
4. Registration Procedures.
(a) In connection with the Shelf Registration Statement, the Company
shall comply with all the provisions of Section 4(b) hereof and shall use
its best efforts to effect such registration to permit the sale of the
Transfer Restricted Securities, and pursuant thereto, shall as
expeditiously as possible prepare and file with the Commission a Shelf
Registration Statement relating to the registration on any appropriate form
under the Securities Act.
(b) In connection with the Shelf Registration Statement and any
Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities, the Company shall:
(i) Subject to any notice by the Company in accordance with this
Section 4(b) of the existence of any fact or event of the kind
described in Section 4(b)(iii)(D), use its best efforts to keep the
Shelf Registration Statement continuously effective during the
Effectiveness Period; upon the occurrence of any event that would
cause the Shelf Registration Statement or the Prospectus contained
therein (A) to contain a material misstatement or omission or (B) not
to be effective and usable for resale of Transfer Restricted
Securities during the Effectiveness Period, the Company shall file
promptly an appropriate amendment to the Shelf Registration Statement,
a supplement to the Prospectus or a report filed with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, in
the case of clause (A), correcting any such misstatement or omission,
and, in the case of either clause (A) or (B), use its best efforts to
cause such amendment to be declared effective and the Shelf
Registration Statement and the related Prospectus to become usable for
their intended purposes as soon as practicable thereafter.
Notwithstanding the foregoing, the Company may suspend the
effectiveness of the Shelf Registration Statement by written notice to
the Holders for a period not to exceed an aggregate of 45 days in any
90-day period (each such period, a "SUSPENSION PERIOD") if:
(x) an event occurs and is continuing as a result of which
the Shelf Registration Statement, the Prospectus, any amendment
or supplement thereto, or any document incorporated by reference
therein would, in the Company's judgment, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and
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(y) the Company determines in good faith that the disclosure
of such event at such time would be seriously detrimental to the
Company and its subsidiaries;
provided that, in the event the disclosure relates to a previously
undisclosed, proposed or pending material business transaction, the
disclosure of which the Company determines in good faith would be
reasonably likely to impede the Company's ability to consummate such
transaction, the Company may extend a Suspension Period from 45 days to 60
days; provided, however, that Suspension Periods shall not exceed an
aggregate of 110 days in any 360-day period. The Company shall not be
required to specify in the written notice to the Holders the nature of the
event giving rise to the Suspension Period.
(ii) Prepare and file with the Commission such amendments and
post-effective amendments to the Shelf Registration Statement as may
be necessary to keep the Shelf Registration Statement effective during
the Effectiveness Period; cause the Prospectus to be supplemented by
any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Securities Act, and to comply fully
with the applicable provisions of Rules 424 and 430A under the
Securities Act in a timely manner; and comply with the provisions of
the Securities Act with respect to the disposition of all Debentures
covered by the Shelf Registration Statement during the applicable
period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in the Shelf
Registration Statement or supplement to the Prospectus.
(iii) Advise the selling Holders promptly and, if requested by
such selling Holders, to confirm such advice in writing, except as
provided in clause (D) below:
(A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to the
Shelf Registration Statement or any post-effective amendment
thereto, when the same has become effective,
(B) of any request by the Commission for amendments to the
Shelf Registration Statement or amendments or supplements to the
Prospectus or for additional information relating thereto,
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement
under the Securities Act or of the suspension by any state
securities commission of the qualification of the Transfer
Restricted Securities for offering or sale in any jurisdiction,
or the initiation of any proceeding for any of the preceding
purposes, or
(D) of the existence of any fact or the happening of, but
not the nature of any details concerning, any event, during the
Effectiveness Period, that makes any statement of a material fact
made in the Shelf
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Registration Statement, the Prospectus, any amendment or
supplement thereto, or any document incorporated by reference
therein untrue, or that requires the making of any additions to
or changes in the Shelf Registration Statement or the Prospectus
in order to make the statements therein not misleading.
If at any time the Commission shall issue any stop order suspending the
effectiveness of the Shelf Registration Statement, or any state securities
commission or other regulatory authority shall issue an order suspending
the qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or Blue Sky laws, the Company
shall use its best efforts to obtain the withdrawal or lifting of such
order at the earliest possible time and will provide to each Holder who is
named in the Shelf Registration Statement prompt notice of the withdrawal
of any such order.
(iv) Make reasonably available for inspection during normal
business hours by one or more representatives of the selling
Holders, designated in writing by a Majority of Holders whose
Transfer Restricted Securities are included in the Shelf
Registration Statement, and any attorney or accountant retained
by such selling Holders, all financial and other records,
pertinent corporate documents and properties of the Company as
shall be reasonably necessary to enable them to conduct a
reasonable investigation within the meaning of Section 11 of the
Securities Act, and cause the Company's officers, directors,
managers and employees to supply all information reasonably
requested by any such representative or representatives of the
selling Holders, attorney or accountant in connection therewith;
provided, however, that the Company shall have no obligation to
deliver information to any selling Holder or representative
pursuant to this Section 4(b)(iv) unless such selling Holder or
representative shall have executed and delivered a
confidentiality agreement in a form acceptable to the Company
relating to such information stipulating that such information
shall be used solely for the purpose of exercising rights under
this Agreement.
(v) If requested by any selling Holders, promptly
incorporate in the Shelf Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if
necessary, such information as such selling Holders may
reasonably request to have included therein, including, without
limitation, information relating to the "PLAN OF DISTRIBUTION" of
the Transfer Restricted Securities.
(vi) Furnish to each selling Holder upon their request,
without charge, at least one copy of the Shelf Registration
Statement, as first filed with the Commission, and of each
amendment thereto (and any documents incorporated by reference
therein or exhibits thereto (or exhibits incorporated in such
exhibits by reference) as such Person may request).
(vii) Deliver to each selling Holder, without charge, as
many copies of the Prospectus (including each preliminary
Prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; subject to any notice
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by the Company in accordance with this Section 4(b) of the
existence of any fact or event of the kind described in Section
4(b)(iii)(D), the Company hereby consents to the use of the
Prospectus and any amendment or supplement thereto by each of the
selling Holders in connection with the offering and the sale of
the Transfer Restricted Securities covered by the Prospectus or
any amendment or supplement thereto.
(viii) Before any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their counsel
in connection with the registration and qualification of the
Transfer Restricted Securities under the securities or Blue Sky
laws of such jurisdictions in the United States as the selling
Holders may reasonably request and do any and all other acts or
things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by
the Shelf Registration Statement; provided, however, that the
Company shall not be required (A) to register or qualify as a
foreign corporation or a dealer of securities where it is not now
so qualified or to take any action that would subject it to the
service of process in any jurisdiction where it is not now so
subject or (B) to subject itself to general or unlimited service
of process or to taxation in any such jurisdiction if they are
not now so subject.
(ix) Cooperate with the selling Holders to facilitate the
timely preparation and delivery of certificates representing
Transfer Restricted Securities to be sold and not bearing any
restrictive legends (unless required by applicable securities
laws); and enable such Transfer Restricted Securities to be in
such denominations and registered in such names as the Holders
may request at least two Business Days before any sale of
Transfer Restricted Securities.
(x) Use its best efforts to cause the Transfer Restricted
Securities covered by the Shelf Registration Statement to be
registered with or approved by such other U.S. governmental
agencies or authorities as may be necessary to enable the seller
or sellers thereof to consummate the disposition of such Transfer
Restricted Securities.
(xi) Subject to Section 4(b)(i) hereof, if any fact or event
contemplated by Section 4(b)(iii)(D) hereof shall exist or have
occurred, use its best efforts to prepare a supplement or
post-effective amendment to the Shelf Registration Statement or
related Prospectus or any document incorporated therein by
reference or file any other required document so that, as
thereafter delivered to the purchasers of Transfer Restricted
Securities, the Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in
light of the circumstances in which they are made, not
misleading.
(xii) Provide CUSIP numbers for all Transfer Restricted
Securities not later than the effective date of the Shelf
Registration Statement and provide the
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Trustee under the Indenture with certificates for the Debentures
that are in a form eligible for deposit with The Depository Trust
Company.
(xiii) Cooperate and assist in any filings required to be
made with the NASD and in the performance of any due diligence
investigation by any underwriter that is required to be retained
in accordance with the rules and regulations of the NASD.
(xiv) Otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission and all
reporting requirements under the Exchange Act.
(xv) Cause the Indenture to be qualified under the TIA not
later than the effective date of the Shelf Registration Statement
required by this Agreement, and, in connection therewith,
cooperate with the Trustee and the holders of Debentures to
effect such changes to the Indenture as may be required for such
Indenture to be so qualified in accordance with the terms of the
TIA; and execute and use its best efforts to cause the Trustee
thereunder to execute all documents that may be required to
effect such changes and all other forms and documents required to
be filed with the Commission to enable such Indenture to be so
qualified in a timely manner.
(xvi) Cause all Common Stock covered by the Shelf
Registration Statement to be listed or quoted, as the case may
be, on each U.S. securities exchange or automated quotation
system on which Common Stock is then listed or quoted.
(xvii) Provide to each Holder upon written request each
document filed with the Commission pursuant to the requirements
of Section 13 and Section 15 of the Exchange Act after the
effective date of the Shelf Registration Statement, unless such
document is available through the Commission's XXXXX system.
(c) Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice (a "SUSPENSION NOTICE") from the
Company of the existence of any fact of the kind described in Section
4(b)(iii)(D) hereof, such Holder will forthwith discontinue disposition of
Transfer Restricted Securities pursuant to the Shelf Registration Statement
until:
(i) such Holder has received copies of the supplemented or
amended Prospectus contemplated by Section 4(b)(xi) hereof; or
(ii) such Holder is advised in writing by the Company that the
use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference
in the Prospectus.
If so directed by the Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Xxxxxx's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice of suspension.
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(d) Each Holder agrees by acquisition of a Transfer Restricted
Security, that no Holder shall be entitled to sell any of such Transfer
Restricted Securities pursuant to a Registration Statement; or to receive a
Prospectus relating thereto, unless such Holder has furnished the Company
with a Notice and Questionnaire as required pursuant to Section 2(d) hereof
(including the information required to be included in such Notice and
Questionnaire) and the information set forth in the next sentence. Each
Notice Holder agrees promptly to furnish to the Company all information
required to be disclosed in order to make the information previously
furnished to the Company by such Notice Holder not misleading and any other
information regarding such Notice Holder and the distribution of such
Transfer Restricted Securities as the Company may from time to time
reasonably request in writing. Any sale of any Transfer Restricted
Securities by any Holder shall constitute a representation and warranty by
such Holder that the information relating to such Holder and its Plan of
Distribution is as set forth in the Prospectus delivered by such Holder in
connection with such disposition, that such Prospectus does not as of the
time of such sale contain any untrue statement of a material fact relating
to or provided by such Holder to its Plan of Distribution and that such
Prospectus does not as of the time of such sale omit to state any material
fact relating to or provided by such Holder or its Plan of Distribution
necessary to make the statements in such Prospectus, in the light of the
circumstances under which they were made not misleading.
5. Registration Expenses.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement shall be borne by the Company regardless of
whether a Shelf Registration Statement becomes effective, including,
without limitation:
(i) all registration and filing fees and expenses (including
filings made with the NASD);
(ii) all fees and expenses of compliance with federal securities
and state Blue Sky or securities laws;
(iii) all expenses of printing (including printing of
Prospectuses and certificates for the Common Stock to be issued upon
conversion of the Debentures) and the Company's expenses for messenger
and delivery services and telephone;
(iv) all fees and disbursements of counsel to the Company and,
subject to Section 5(b) below, the Holders of Transfer Restricted
Securities;
(v) all application and filing fees in connection with listing
(or authorizing for quotation) the Common Stock on a national
securities exchange or automated quotation system pursuant to the
requirements hereof; and
(vi) all fees and disbursements of independent certified public
accountants of the Company (including the expenses of any special
audit or comfort letters required by or incident to such performance).
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The Company shall bear its internal expenses (including, without
limitation, all salaries and expenses of their officers and employees performing
legal, accounting or other duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
(b) In connection with the Shelf Registration Statement required by
this Agreement, the Company shall pay for the reasonable fees and
disbursement charges of not more than one counsel for the Initial Purchaser
and the Holders of Transfer Restricted Securities being registered pursuant
to the Shelf Registration Statement, which counsel shall be Xxxxxxx Xxxxxxx
& Xxxxxxxx or such other counsel as may be designated in writing by a
Majority of Holders for whose benefit the Shelf Registration Statement is
being prepared and which shall be reasonably acceptable to the Company. The
Company shall not be required to pay any underwriter discount, commission
or similar fees related to the sale of Transfer Restricted Securities.
6. Indemnification And Contribution.
(a) The Company shall indemnify and hold harmless each Holder of
Transfer Restricted Securities covered by the Shelf Registration Statement
(including the Initial Purchaser), its directors, officers, and employees
and each person, if any, who controls any such Holder within the meaning of
the Securities Act or the Exchange Act (each, an "INDEMNIFIED HOLDER"),
against any loss, claim, damage, liability or expense, joint or several, or
any action in respect thereof (including, but not limited to, any loss,
claim, damage, liability or action relating to resales of the Transfer
Restricted Securities), to which such Indemnified Holder may become
subject, insofar as any such loss, claim, damage, liability or action
arises out of, or is based upon:
(i) any untrue statement or alleged untrue statement of a
material fact contained in (A) the Shelf Registration Statement as
originally filed or in any amendment thereof, in any Prospectus, or in
any amendment or supplement thereto or (B) any blue sky application or
other document or any amendment or supplement thereto prepared or
executed by the Company (or based upon written information furnished
by or on behalf of the Company expressly for use in such blue sky
application or other document or amendment on supplement) filed in any
jurisdiction specifically for the purpose of qualifying any or all of
the Transfer Restricted Securities under the securities law of any
state or other jurisdiction (such application or document being
hereinafter called a "BLUE SKY APPLICATION"); or
(ii) the omission or alleged omission to state therein any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading,
and shall reimburse each Indemnified Holder promptly upon demand for any legal
or other expenses reasonably incurred by such Indemnified Holder in connection
with investigating, preparing to defend against, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action as such expenses are incurred; provided, however, that the
15
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability, expense or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with written information furnished to
the Company by or on behalf of such Holder (or its related Indemnified Holder)
specifically for use therein. The foregoing indemnity agreement is in addition
to any liability which the Company may otherwise have.
(b) Each Holder, severally and not jointly, agrees to indemnify and
hold harmless the Company, its directors, officers and employees and each
person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act to the same extent as the foregoing
indemnity from the Company to each such Holder, but only with reference to
written information relating to such Holder furnished to the Company by or
on behalf of such Holder specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement set forth
in this Section shall be in addition to any liabilities which any such
Holder may otherwise have. In no event shall any Holder, its directors,
officers or any person who controls such Holder be liable or responsible
for any amount in excess of the amount by which the total amount received
by such Holder with respect to its sale of Transfer Restricted Securities
pursuant to a Shelf Registration Statement exceeds (i) the amount paid by
such Holder for such Transfer Restricted Securities and (ii) the amount of
any damages that such Holder, its directors, officers or any person who
controls such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have under this Section 6 except to the extent
it has been materially prejudiced by such failure and, provided, further,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have to an indemnified party otherwise than
under this Section 6. If any such claim or action shall be brought against
an indemnified party, and it shall notify the indemnifying party thereof,
the indemnifying party shall be entitled to participate therein and, to the
extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel satisfactory
to the indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 6 for any legal or other expenses subsequently incurred
by the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that the Holders
shall have the right to employ a single counsel to represent jointly the
Holders and their officers, employees and controlling persons who may be
subject to liability arising out of any claim in respect of which indemnity
may be sought by the Holders against the Company under this Section 6 if
the Holders seeking indemnification shall have been advised by legal
counsel that there may be one or more legal defenses available to such
Holders and their respective officers, employees and controlling persons
that are different from or additional to those available to the Company,
16
and in that event, the fees and expenses of such separate counsel shall be
paid by the Company. No indemnifying party shall:
(i) without the prior written consent of the indemnified parties
(which consent shall not be unreasonably withheld) settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action), unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding, or
(ii) be liable for any settlement of any such action effected
without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying
party agrees to indemnify and hold harmless any indemnified party from
and against any loss of liability by reason of such settlement or
judgment.
(d) The indemnifying party under this Section shall not be liable for
any settlement of any proceeding effected without its written consent,
which shall not be withheld unreasonably, but if settled with such consent
or if there is a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party against any loss, claim, damage,
liability or expense by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by Section 6(c)
hereof, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with
such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect
any settlement, compromise or consent to the entry of judgment in any
pending or threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity was or could
have been sought hereunder by such indemnified party, unless such
settlement, compromise or consent (x) includes an unconditional release of
such indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding and (y) does not include a
statement as to or an admission of fault, culpability or a failure to act
by or on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 6 shall for
any reason be unavailable or insufficient to hold harmless an indemnified
party under Section 6(a) or 6(b) in respect of any loss, claim, damage or
liability (or action in respect thereof) referred to therein, each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability (or action in respect
thereof):
17
(i) in such proportion as is appropriate to reflect the relative
benefits received by the Company from the offering and sale of the
Transfer Restricted Securities on the one hand and a Holder with
respect to the sale by such Holder of the Transfer Restricted
Securities on the other, or
(ii) if the allocation provided by Section (6)(d)(i) is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in Section 6(d)(i)
but also the relative fault of the Company on the one hand and the
Holders on the other in connection with the statements or omissions or
alleged statements or alleged omissions that resulted in such loss,
claim, damage or liability (or action in respect thereof), as well as
any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and a Holder on
the other with respect to such offering and such sale shall be deemed to be in
the same proportion as the total net proceeds from the offering of the
Debentures purchased under the Purchase Agreement (before deducting expenses)
received by the Company, on the one hand, bear to the total proceeds received by
such Holder with respect to its sale of Transfer Restricted Securities on the
other. The relative fault of the parties shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Holders on the other, the intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
each Holder agree that it would not be just and equitable if the amount of
contribution pursuant to this Section 6(d) were determined by pro rata
allocation (even if either the Holders or the Company, as the case may be, were
treated as one entity for such purpose) or by any other method of allocation
that does not take into account the equitable considerations referred to in the
first sentence of this paragraph (d).
The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above in
this Section 6 shall be deemed to include, for purposes of this Section 6, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim.
Notwithstanding the provisions of this Section 6, no Holder shall be
required to contribute any amount in excess of the amount by which the total
price at which the Transfer Restricted Securities purchased by it were resold
exceeds the amount of any damages which such Holder has otherwise been required
to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission. No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute as provided in this
Section 6(d) are several and not joint.
(f) The provisions of this Section 6 shall remain operative and in
full force and effect regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of the Initial Purchaser, any
Holder or the Company or any of the
18
officers, directors or controlling persons referred to in Section 6 hereof,
and (iii) any sale of Transfer Restricted Securities.
7. Rule 144A and Rule 144. The Company agrees with each Holder, for so long
as any Transfer Restricted Securities remain outstanding and during any period
in which the Company (i) is not subject to Section 13 or 15(d) of the Exchange
Act, to make available, upon request of any Holder, to such Holder or beneficial
owner of Transfer Restricted Securities in connection with any sale thereof and
any prospective purchaser of such Transfer Restricted Securities designated by
such Holder or beneficial owner, the information required by Rule 144A(d)(4)
under the Securities Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A, and (ii) is subject to Section 13 or 15 (d) of
the Exchange Act, to make all filings required thereby in a timely manner in
order to permit resales of such Transfer Restricted Securities pursuant to
Rule 144.
8. No Participation In Underwritten Registrations. No Holder may
participate in any Underwritten Registration hereunder.
9. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any failure by
the Company to comply with its obligations under Section 2 hereof may
result in material irreparable injury to the Initial Purchaser or the
Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely, and that, in the
event of any such failure, the Initial Purchaser or any Holder may obtain
such relief as may be required to specifically enforce the Company's
obligations under Section 2 hereof. The Company further agrees to waive the
defense in any action for specific performance that a remedy at law would
be adequate.
(b) Actions Affecting Transfer Restricted Securities. The Company
shall not, directly or indirectly, take any action with respect to the
Transfer Restricted Securities as a class that would adversely affect the
ability of the Holders of Transfer Restricted Securities to include such
Transfer Restricted Securities in a registration undertaken pursuant to
this Agreement.
(c) No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter
into, any agreement with respect to its securities that is inconsistent
with the rights granted to the Holders in this Agreement or otherwise
conflicts with the provisions hereof. In addition, the Company shall not
grant to any of its securityholders (other than the Holders of Transfer
Restricted Securities in such capacity) the right to include any of its
securities in the Shelf Registration Statement provided for in this
Agreement other than the Transfer Restricted Securities.
(d) Amendments and Waivers. This Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from the
provisions hereof may not be given, unless the Company has obtained the
written consent of a Majority of Holders; provided, however, that with
respect to any matter that directly or
19
indirectly adversely affects the rights of any Initial Purchaser hereunder,
the Company shall obtain the written consent of each such Initial Purchaser
against which such amendment, qualification, supplement, waiver or consent
is to be effective. Notwithstanding the foregoing (except the foregoing
proviso), a waiver or consent to depart from the provisions hereof, with
respect to a matter, which relates exclusively to the rights of Holders
whose securities are being sold pursuant to a Shelf Registration Statement
and does not directly or indirectly adversely affect the rights of other
Holders, may be given by the Majority Holders, determined on the basis of
Debentures being sold rather than registered under such Shelf Registration
Statement.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first class
mail (registered or certified, return receipt requested), telex, facsimile
transmission, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the registrar under the Indenture or the transfer agent of the Common
Stock, as the case may be; and
(ii) if to the Company, initially at its address set forth in the
Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if transmitted by
facsimile; and on the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.
Any party hereto may change the address for receipt of communications by
giving written notice to the others.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities. The
Company hereby agrees to extend the benefit of this Agreement to any Holder
and any such Holder may specifically enforce the provisions of this
Agreement as if an original party hereto.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) Debentures Held by the Company or Their Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Transfer
Restricted Securities is required hereunder, Transfer Restricted Securities
held by the Company or its Affiliates (other than subsequent Holders if
such subsequent Holders are deemed to be Affiliates solely by reason of
their holding of such Debentures) shall not be counted in
20
determining whether such consent or approval was given by the Holders of
such required percentage.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
(k) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid,
illegal or unenforceable, the validity, legality and enforceability of any
such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby, it being
intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
(l) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein with respect to the registration rights granted
by the Company with respect to the Transfer Restricted Securities. This
Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
[CONTINUED ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
ODYSSEY RE HOLDINGS CORP.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
BANC OF AMERICA SECURITIES LLC
As the Initial Purchaser
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Managing Director
