Exhibit 10.11
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), dated as of
[September 27], 2002, between THE ST. XXXX COMPANIES, INC., a company
incorporated under the laws of Minnesota ("ST. XXXX") and PLATINUM UNDERWRITERS
HOLDINGS, LTD., a company incorporated under the laws of Bermuda (the
"COMPANY").
RECITALS
WHEREAS, St. Xxxx and the Company are parties to the Formation and
Separation Agreement dated as of [September 23], 2002, and the Option Agreement,
dated as of [September 27], 2002 (respectively, the "FORMATION AND SEPARATION
AGREEMENT" and the "OPTION AGREEMENT"), each relating to the purchase by St.
Xxxx of common shares, par value U.S. $0.01 per share (the "COMMON SHARES"), of
the Company;
WHEREAS, the Company will effect an initial public offering of certain
Common Shares pursuant to a Registration Statement on Form S-1 (File No.
333-86906) (the "PUBLIC OFFERING"); and
WHEREAS, the Company has agreed to provide the registration rights
specified in this Agreement to St. Xxxx following the Public Offering and the
Company and St. Xxxx are entering into this Agreement to set forth the terms and
conditions applicable to the grant and exercise of such registration rights.
NOW, THEREFORE, in furtherance of the transactions contemplated by the
Formation and Separation Agreement and in consideration of the promises and the
mutual covenants and agreements contained therein and herein and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties hereto, the Company and St. Xxxx hereby agree as
follows:
ARTICLE I
DEFINITIONS
1.1. DEFINED TERMS. As used in this Agreement, the following
capitalized terms have the respective meanings set forth below:
"AFFILIATE" means, with respect to any person, any other person that
directly or indirectly through one or more intermediaries controls or is
controlled by or is under common control with such person.
"BYE-LAWS" means the Bye-laws of the Company, as the same may be
further amended from time to time.
"CAPITAL SECURITIES" means all shares of each class in the capital
stock of the Company and all securities convertible into or exchangeable or
exercisable for any such shares.
"CLOSING" means the closing of the Public Offering pursuant to an
effective registration statement under the Securities Act.
"CLOSING PRICE" for each day is the reported last sale price regular
way or, in case no such reported sale takes place on such day, the average of
the reported closing bid and asked prices regular way, in either case on the New
York Stock Exchange or, if the Common Shares are not listed or admitted to
trading on such Exchange, on the principal national securities exchange on which
the Common Shares are listed or admitted to trading or, if not listed or
admitted to trading on any national securities exchange, on the NASDAQ National
Market or, if the Common Shares are not listed or admitted to trading on any
national securities exchange or quoted on the NASDAQ National Market, the
average of the closing bid and asked prices in the over-the-counter market as
furnished by any New York Stock Exchange member firm reasonably selected from
time to time by the Board of Directors of the Company for that purpose.
"COMMON SHARES" has the meaning specified in the Recitals.
"CURRENT MARKET PRICE" means the average of the daily Closing Prices
per share for the ten consecutive Trading Days ending on the day before the
applicable record date.
"EXCHANGE ACT" means the U.S. Securities Exchange Act of 1934, as
amended.
"FORMATION AND SEPARATION AGREEMENT" has the meaning specified in the
Recitals.
"OPTION AGREEMENT" has the meaning set forth in the Recitals.
"PERSON" means any individual, corporation, company, partnership, joint
venture, trust, association, government or governmental body or other entity.
"PUBLIC OFFERING" has the meaning specified in the Recitals.
"REGISTRABLE SHARES" means, at any time, any and all Common Shares
owned by the St. Xxxx Group, whether purchased by St. Xxxx as contemplated by
the Formation and Separation Agreement, issued to St. Xxxx pursuant to the
Option Agreement or otherwise acquired, as the case may be, other than shares
that have ceased to be Registrable Shares. Common Shares cease to be Registrable
Shares (a) when a registration statement with respect to the disposition of such
shares has become effective under the Securities Act and such shares shall have
been disposed of pursuant to such registration statement, or (b) when such
shares have been sold pursuant to Rule 144 under the Securities Act.
"REGISTRATION EXPENSES" means any and all expenses incident to
performance of or compliance with the demand rights set forth in Section 2.1 and
piggy-back rights set forth in Section 2.2, including, (a) all SEC and stock
exchange or National Association of Securities Dealers, Inc. registration and
filing fees, (b) all fees and expenses of complying with state securities or
blue sky laws (including reasonable fees and disbursements of counsel for the
underwriters in connection with blue sky qualifications of the Registrable
Shares), (c) the cost of printing or preparing any registration statement,
prospectus, offering circular, agreement among underwriters, underwriting
agreement, blue sky memorandum, share certificates and any other documents in
connection with the offering, purchase, sale and delivery of the Registrable
Shares, (d) the costs and charges of any transfer agent and registrar and any
custodian or attorney-in-fact appointed to act on behalf of St. Xxxx, (e) all
messenger and delivery expenses of the Company, (f) the reasonable fees and
expenses of any qualified
independent underwriter, (g) the reasonable fees and disbursements of counsel
for the Company and the Company's independent public accountants, including the
expenses of any special audits and/or "cold comfort" letters required by or
incident to such performance and compliance and (h) any road show and marketing
expenses; PROVIDED that St. Xxxx shall pay the fees and disbursements of its own
counsel, if any, and all underwriting discounts, commissions and transfer taxes,
if any, relating to the sale or disposition of its Registrable Shares.
"RULE 144" means Rule 144 under the Securities Act.
"ST. XXXX GROUP" means St. Xxxx and its Affiliates at such time.
"ST. XXXX OPTION" means the option of St. Xxxx to purchase additional
Common Shares pursuant to the Option Agreement.
"SECURITIES ACT" means the U.S. Securities Act of 1933, as amended.
"SEC" means the U.S. Securities and Exchange Commission or any other
U.S. federal agency at the time administering the Securities Act or the Exchange
Act.
"SHAREHOLDER" means, with respect to any Common Shares, the person in
whose name such shares are registered in the register of members maintained by
the Company in accordance with applicable law and the Bye-laws, and the terms
"hold," "held" and "holding" shall have meanings correlative to the foregoing.
"10% SHAREHOLDER" has the meaning set forth in the Bye-laws.
"TERMINATION DATE" means the first date after the Closing on which St.
Xxxx does not have right to make a Demand Request.
"TRADING DAY" means each Monday, Tuesday, Wednesday, Thursday and
Friday, other than any day on which the Common Shares are not traded on the
applicable securities exchange or on the applicable securities market.
"UNITED STATES 25% SHAREHOLDER" has the meaning set forth in the
Bye-laws.
1.2. GENERAL. (a) General. Unless the context otherwise requires,
references in this Agreement to any "section" or "article" mean a section or
article of this Agreement, as the case may be, and the terms "hereof,"
"hereunder," "hereto" and words of similar meaning mean this Agreement in its
entirety and not any particular provisions of this Agreement. Unless the context
otherwise requires, the terms defined herein include the singular as well as the
plural.
(b) Unless the context otherwise requires, each reference herein
to the Securities Act, the Exchange Act or Rule 144 (or any other rule,
regulation or form promulgated under either such statute) shall be deemed to
mean, as of any time, such statute, rule, regulation or form as then in effect,
after all amendments thereto, or, if not then in effect, any successor statute,
rule, regulation or form as then in effect, after all amendments thereto.
ARTICLE II
REGISTRATION RIGHTS
2.1. DEMAND RIGHTS. (a) From and after the first anniversary of
the Closing (unless the Company consents to an earlier date, such consent not
to be unreasonably withheld), St. Xxxx has the right, on four occasions, to
require the Company to file a registration statement on Form X-0, X-0 or S-3
(or Form F-1, F-2 or F-3) or any similar or successor to such Forms under the
Securities Act for a public offering of Registrable Shares, by delivering to
the Company written notice, with a copy to RenaissanceRe, stating that such
right is being exercised, naming, if applicable, the members of the St. Xxxx
Group whose Registrable Shares are to be included in such registration
(collectively, the "DEMANDING SHAREHOLDERS"), specifying the number of each
such Demanding Shareholder's Registrable Shares to be included in such
registration and describing the intended method of distribution thereof (a
"DEMAND REQUEST"); PROVIDED that St. Xxxx shall not make a Demand Request
during the 180-day period immediately following the Closing except with the
prior written consent of Xxxxxxx, Xxxxx & Co.; and PROVIDED FURTHER, that,
from and after the fifth anniversary of the Closing, St. Xxxx has the right
to two additional Demand Requests if on such date St. Xxxx is the beneficial
owner (directly or indirectly) of more than 9.9% of the Common Shares then
outstanding. Upon receipt of a Demand Request, the Company shall use its
reasonable best efforts to promptly effect the registration under the
Securities Act of the Registrable Shares included in the Demand Request to
permit the Demanding Shareholders to sell or otherwise dispose of their
respective Registrable Shares included in the registration in accordance with
the method or methods of distribution intended by the Demanding Shareholders.
The rights and obligations of the parties listed under this Section 2.1(a)
are subject to the other provisions of this Agreement.
(b) The Company's obligations pursuant to Section 2.1(a) above are
subject to the following conditions:
(i) the Company is not obligated to fulfill a Demand
Request if it has fulfilled a Demand Request received during the period
of 12 months immediately preceding the date of receipt of such Demand
Request;
(ii) the Company is not obligated to fulfill a Demand
Request unless the Demand Request is for such number of Registrable
Shares with a market value that is equal to at least $50 million as of
the date of such Demand Request, PROVIDED that the last Demand Request
(as specified in Section 2.1(a) of this Agreement) will not be subject
to the limitations of this Section 2.01(b)(ii); and
(iii) the Company shall, if requested by St. Xxxx,
undertake a "road show" and other customary marketing efforts in
connection with the sale of Registrable Shares pursuant to such
registration, at such times and in such manner as St. Xxxx xxx
reasonably request.
(iv) the Company is not obligated to fulfill the
requirements herein with regard to any registration relating to a
Demand Request:
(A) during any period of time (not to exceed
ninety (90) days in the aggregate during any period of twelve
(12) consecutive months) after the Company has determined to
proceed with a Securities Act registration of any of its
securities and is diligently proceeding to complete such
registration or any offering of securities pursuant thereto
(whether for its own account or that of any shareholder but
excluding any registration on Form S-8 under the Securities
Act or any similar or successor form) if, in the judgment of a
nationally recognized investment banking firm (which may be
acting as managing underwriter for any such offering or as
financial advisor to the Company), the fulfillment of such
requirements or such filing would have an adverse effect on
the offering,
(B) during any period of time (not to exceed
ninety (90) days during any period of twelve (12) consecutive
months) when the Company is in possession of material,
non-public information that the Company would not be required
to disclose publicly in the absence of any Securities Act
registration of its securities, and the disclosure of which
would be materially injurious to the Company, or
(C) during any period of time (not to exceed
ninety (90) days during any period of twelve (12) consecutive
months) when the Company is engaged in, or has determined to
engage in and is proceeding diligently with, any program for
the purchase of, or any tender offer or exchange offer for,
its Capital Securities, and determines, on advice of
nationally recognized independent U.S. counsel knowledgeable
in such matters, that such program or offer and the requested
registration may not proceed concurrently without violating
Regulation M under the Exchange Act.
(v) the Company is not required to maintain the
effectiveness of a registration statement filed pursuant to Section
2.1(a) for a period in excess of 90 consecutive days, which period
shall be tolled during any period in which the Company invokes its
rights under Section 2.6; PROVIDED, HOWEVER, that, from and after the
third anniversary of the Closing and receipt thereafter by the Company
of written instructions from St. Xxxx to such effect, in the case of
any registration of Registrable Shares on Form S-3 or F-3 which are
intended to be offered on a continuous or delayed basis, such 90-day
period shall be extended until all such Registrable Shares are sold,
PROVIDED that Rule 415, or any successor rule under the Securities Act,
permits an offering on a continuous or delayed basis, PROVIDED FURTHER
that applicable rules under the Securities Act governing the obligation
to file a post-effective amendment permit, in lieu of filing a
post-effective amendment which (1) includes any prospectus required by
Section 10(a) of the Securities Act or (2) reflects facts or events
representing a material or fundamental change in the information set
forth in the registration statement, the incorporation by reference of
information required to be included in (1) and (2) above to be
contained in periodic reports filed pursuant to Section 12 or 15(d) of
the Exchange Act in the registration statement and PROVIDED FURTHER
that St. Xxxx shall give the Company written notice, with a copy to
RenaissanceRe Holdings Ltd., at least ten business days prior to the
beginning of any fiscal quarter in which St. Xxxx intends to attempt to
sell, transfer or otherwise distribute any Common Shares pursuant to
this subsection (E) which are offered on a continuous or delayed basis,
which notice shall specify the aggregate number of Common Shares St.
Xxxx intends to attempt to sell, transfer or dispose of in such fiscal
quarter;
(vi) the Company shall not be required to file or maintain
any registration statement that permits a delayed or continuous
offering to be made for more than 30 consecutive days, which period
shall be tolled during any period in which the Company invokes its
rights under Section
2.6. after such registration statement becomes effective;
(vii) any underwriting agreement entered into in connection
with any public offering pursuant to this Article II shall contain a
provision pursuant to which the managing underwriter of any such public
offering shall agree to use its reasonable best efforts to avoid
selling Registrable Shares to any one person or group of related
persons (other than another dealer acting as an underwriter or member
of any selling group in connection with such public offering) if, as a
result of such sale, any such person would own directly or indirectly
through a foreign corporation, or constructively under applicable rules
contained in the Internal Revenue Code of 1986, as amended, more than
9.9% of the Common Shares; and
(viii) St. Xxxx is entitled to designate any one or more
lawful methods of distribution permitted pursuant to the registration
statement (including a firm commitment underwriting) to be the method
of distribution for the registration pursuant to this Section 2.1, and
St. Xxxx will sell its Registrable Shares included in the registration
in the designated methods (and, in the case of any underwriting, on the
same terms and conditions as the Company and any other selling
shareholder); the intended methods of distribution shall be indicated
in the Demand Request and shall be finally determined prior to filing
the registration statement. In any distribution pursuant to a Demand
Request involving an underwriter, St. Xxxx is entitled to select any
nationally recognized investment banking firm to act as underwriter,
PROVIDED that with respect to any Demand Requests and piggy-back
registrations for which the Company bears the costs and expenses
pursuant to Section 2.7, such selection of an underwriter by St. Xxxx
is subject to the consent of the Company, such consent not to be
unreasonably withheld.
(c) Subject to Section 2.3, the Company may elect to include in
any registration statement filed pursuant to this Section 2.1 any Common Shares
to be issued by it or held by any of its subsidiaries or by any other
shareholders only to the extent such shares are offered and sold pursuant to,
and on the terms and subject to the conditions of, any underwriting agreement or
distribution arrangements entered into or effected by the Demanding
Shareholders.
(d) St. Xxxx xxx withdraw a Demand Request at any time. A Demand
Request withdrawn pursuant to this Section 2.1(d) is deemed not to have been
made for purposes of Section 2.1 and is of no further effect if and only if St.
Xxxx pays or reimburses the Company for all expenses and costs incurred by the
Company in connection with such Demand Request.
2.2. "PIGGY-BACK" RIGHTS. If at any time after the Closing the
Company proposes to register, for its own account or for the account of any
shareholder, any Common Shares on a registration statement on Form X-0, X-0 or
S-3 (or Form F-1, F-2 or F-3) or any similar or successor to such Forms under
the Securities Act for purposes of a public offering of such Common Shares,
other than pursuant to a Demand Request, St. Xxxx has the right to include any
Registrable Shares in such registration. The Company shall give prompt written
notice of any such proposal, including the intended method of distribution of
such Common Shares, to St. Xxxx. Subject to Section 2.3, upon the written
request (a "PIGGY-BACK REQUEST") of St. Xxxx, given within fifteen (15) business
days after the transmittal of any such written notice, the Company will use its
reasonable best efforts to include in such public offering
any or all of the Registrable Shares then held by St. Xxxx, or, if applicable,
the St. Xxxx Group, to permit the sale of such Registrable Shares pursuant to
the intended method or methods of distribution; PROVIDED that any participation
in such public offering by St. Xxxx must be on substantially the same terms as
the Company's and each other shareholder's participation therein; and PROVIDED
FURTHER, that the total number of Common Shares to be included in any such
public offering may not exceed the Maximum Number (as defined below), and Common
Shares must be allocated to give effect to this proviso as provided in Section
2.3. St. Xxxx has the right to withdraw a Piggy-Back Request by giving written
notice to the Company of its election to withdraw such request at least five (5)
business days prior to the proposed filing date of such registration statement.
Each Piggy-Back Request by St. Xxxx must specify the members of the St. Xxxx
Group whose Registrable Shares are to be included in the registration and the
number of such shares for each such member. The Company is entitled to select
any nationally recognized investment banking firm as underwriter in a
registration pursuant to this Section 2.2.
2.3. ALLOCATION OF SECURITIES INCLUDED IN A PUBLIC OFFERING. If the
managing underwriter or placement agent for any public offering effected
pursuant to Section 2.1 or Section 2.2 (or, if there is none, a nationally
recognized investment banking firm acting as financial advisor to the Company)
advises the Company and St. Xxxx in writing that the number of Common Shares
sought to be included in such public offering (including those sought to be
offered by the Company and those sought to be offered by St. Xxxx) exceeds the
maximum number of Common Shares whose inclusion in such public offering would
not be reasonably likely to have an adverse effect on the price, timing or
distribution of the Common Shares included in such public offering (the "Maximum
Number"), the Company shall allocate Common Shares to be included in such public
offering up to the Maximum Number as follows:
(a) in the case of any registration pursuant to Section 2.1, first
to the Demanding Shareholders, subject, if applicable, to
allocation below the Maximum Number in such manner as they may
agree among themselves; then, as to any excess, to the
Company; and
(b) in the case of any registration pursuant to Section 2.2, first
to the Company for its own account; then to St. Xxxx and each
other shareholder designated by the Company, subject to
allocation below the Maximum Number pro rata according to the
number of Registrable Shares held by the St. Xxxx Group or by
such other shareholder, as the case may be.
St. Xxxx xxx allocate any allocation made to it pursuant to this Section 2.3
among the members of the St. Xxxx Group as it wishes. The Company may allocate
any allocation made to it pursuant to Section 2.3(a) among itself, its
subsidiaries and its shareholders as it wishes, and may allocate any allocation
made to it for its own account pursuant to Section 2.3(b) among itself and its
subsidiaries as it wishes.
2.4. INDEMNIFICATION. (a) The Company shall indemnify, to the
extent permitted by law, and hold harmless St. Xxxx and each member of the
St. Xxxx Group and each underwriter against any losses, claims, damages or
liabilities, joint or several, or actions in respect thereof ("CLAIMS"), to
which such indemnified party may become subject, under the Securities Act of
1933 ("SECURITIES ACT") or otherwise, insofar as such Claims arise out of or
are based upon any untrue statement or alleged untrue statement of
any material fact contained in the registration statement, in any prospectus
or preliminary prospectus included in such registration statement or in any
amendment or supplement thereto filed with the SEC (collectively, "REGISTRATION
DOCUMENTS") or insofar as such Claims arise out of or are based upon the
omission or alleged omission to state in any Registration Document a material
fact required to be stated therein or necessary to make the statements made
therein not misleading, and will reimburse any such indemnified party for any
legal or other expenses reasonably incurred by such indemnified party in
investigating or defending any such Claim as such expenses are incurred;
PROVIDED that the Company is not liable in any such case to the extent that any
such Claim arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Registration Document in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such indemnified party specifically for use in the
preparation of such Registration Document [and PROVIDED FURTHER that the Company
is not liable to indemnify St. Xxxx or any member of the St. Xxxx Group to the
extent that any such claim arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any
Registration Document in the historical financial statements of the Reinsurance
Division of St. Xxxx or financial information in any Registration Document
derived therefrom.]
(b) In connection with any registration in which St. Xxxx is
participating, St. Xxxx shall indemnify, to the extent permitted by law, and
hold harmless the Company and each underwriter against any Claims to which each
such indemnified party may become subject under the Securities Act or otherwise,
insofar as such Claims arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any Registration
Document, or insofar as any claims arise out of or are based upon the omission
or alleged omission to state in any Registration Document a material fact
required to be stated therein or necessary to make the statements made therein
not misleading; PROVIDED, HOWEVER, that such indemnification is payable only if,
and to the extent that, any such Claim arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Registration Document in reliance upon and in conformity with written
information furnished to the Company by or on behalf of St. Xxxx or any member
of the St. Xxxx Group specifically for use in the preparation of such
Registration Document.
(c) Any person entitled to indemnification under Section 2.4(a) or
(b) above shall notify promptly the indemnifying party in writing of the
commencement of any Claim if a claim for indemnification in respect thereof is
to be made against an indemnifying party under this Section 2.4, but the
omission of such notice shall not relieve the indemnifying party from any
liability which it may have to any indemnified party otherwise than under
Section 2.4(a) or (b). In case any action is brought against an indemnified
party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party is entitled to participate in, and, to the extent that it
chooses, to assume the defense thereof with counsel reasonably acceptable to the
indemnified party, who may be counsel for the indemnifying party unless the
indemnified party reasonably concludes such counsel would have a conflict of
interest in representing both indemnified and indemnifying parties (PROVIDED
that the Company is not responsible for the fees and expenses of more than one
counsel for all indemnified parties with respect to any Claim or group of Claims
alleged to have arisen from similar facts); and, after notice from the
indemnifying party to the indemnified party that it so chooses, the indemnifying
party is not liable for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense
thereof other than reasonable costs of investigation. The indemnifying party is
not liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party may, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(d) If for any reason the foregoing indemnity is unavailable to,
or is insufficient to hold harmless, an indemnified party in respect of any
Claim, (i) if the indemnified party is an underwriter, then each indemnifying
party shall contribute to the amount paid or payable by the indemnified party as
a result of any Claim in such proportion as is appropriate to reflect the
relative benefits received by St. Xxxx and the Company, on the one hand, and the
indemnified party, on the other, from the offering of securities to which such
Registration Documents relate, (ii) as between the Company and St. Xxxx, the
indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of any Claim in such proportion as is appropriate
to reflect the relative benefits to and the relative fault of the indemnifying
party, on the one hand, and the indemnified party, on the other, in connection
with the statements or omissions that resulted in such Claims, as well as any
other relevant equitable considerations. If, however, the allocation provided in
clause (i) or (ii) of the immediately preceding sentence is not permitted by
applicable law, or if the indemnified party failed to give the notice required
by clause (c) above, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party in such proportion as is appropriate
to reflect both the relative benefits and the relative fault of the indemnifying
party and the indemnified party in connection with the statements or omissions
that resulted in such Claims as well as any other relevant equitable
considerations. The relative benefits received by St. Xxxx and the Company, on
the one hand, and by the underwriters, on the other, shall be deemed to be in
the same proportion as the total net proceeds from the offering of the
securities (before deducting expenses) received by St. Xxxx and the Company, on
the one hand, bear to the total underwriting discounts and commissions received
by the underwriters, on the other hand, in connection with such offering. The
relative fault shall be determined by reference to, among other things, 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
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable in respect of any Claim shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such Claim.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) is entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
(e) As a condition to their obligations under this Section 2.4,
each of the Company and St. Xxxx must have received from each underwriter of
Registrable Shares included in a registration statement filed under the
Securities Act pursuant to Section 2.1 or 2.2 an undertaking to indemnify, to
the extent permitted by law, and hold harmless the Company and St. Xxxx against
(or if such indemnity is unavailable or is insufficient to hold harmless an
indemnified party, to provide contribution, on
substantially the same basis provided to such underwriter in accordance with
Section 2.4(d), in respect of) any Claims to which each such indemnified party
may become subject under the Securities Act or otherwise, insofar as such Claims
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any Registration Document, or insofar as any
claims arise out of or are based upon the omission or alleged omission to state
in any Registration Document a material fact required to be stated therein or
necessary to make the statements made therein not misleading; PROVIDED, HOWEVER,
that such indemnification (or contribution, as the case may be) shall be payable
only if, and to the extent that, any such Claim arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged omission
made in any Registration Document in reliance upon and in conformity with
written information furnished to the Company by or on behalf of such underwriter
specifically for use in the preparation thereof. Notwithstanding the foregoing,
no underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Shares underwritten by
it and distributed to the public were offered to the public exceeds the amount
of any damages which such underwriter otherwise has been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. The obligation of any underwriters to provide indemnification (or
contribution, as the case may be) pursuant to this paragraph (e) shall be
several in proportion to their respective underwriting commitments and not
joint.
(f) The maximum liability of St. Xxxx to indemnify or contribute
payments pursuant to this Section 2.4 may not exceed the aggregate net proceeds
from the sale of Common Shares (including the sale of Common Shares, if any,
pursuant to the exercise of an overallotment option) to St. Xxxx in such
registration.
(g) The obligations of the Company pursuant to this Section 2.4 is
in addition to any liability which the Company may otherwise have and extends,
upon the same terms and conditions, to each officer, director and general
partner of any underwriter or St. Xxxx and to each person, if any, who controls
any underwriter or St. Xxxx within the meaning of the Securities Act. The
obligations of St. Xxxx pursuant to this Section 2.4 are in addition to any
liability which St. Xxxx xxx otherwise have and extends, upon the same terms and
conditions, to each officer, director and general partner of the Company, any
underwriter or any other person, if any, who controls the Company or any
underwriter within the meaning of the Securities Act. The obligations of any
underwriter pursuant to this Section 2.4 are in addition to any liability which
such underwriter may otherwise have and extends, upon the same terms and
conditions, to each officer, director and general partner of the Company or St.
Xxxx and to each person, if any, who controls the Company or St. Xxxx within the
meaning of the Securities Act.
(h) The indemnification provisions set forth in this section are
the sole and exclusive remedy of the parties hereto for any and all claims for
indemnification under this Agreement.
2.5. REQUIREMENTS WITH RESPECT TO REGISTRATION. If and whenever the
Company is required by the provisions hereof to use its reasonable best efforts
to register any Registrable Shares under the Securities Act, the Company shall,
as promptly as practicable:
(a) Prepare and file with the SEC a registration
statement with respect to such Registrable Shares and use its
reasonable best efforts to cause such registration statement to
become and remain effective for the periods specified herein.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement current and to comply with the provisions of the Securities
Act and any regulations promulgated thereunder with respect to the sale
or other disposition of such Registrable Shares, for as long as a
prospectus relating to any such Registrable Shares is required to be
delivered under the Securities Act, subject to the limitation in
Section 2.1(b)(vi).
(c) Furnish to each member of the St. Xxxx Group
participating in the offering copies (in reasonable quantities) of
summary, preliminary, final, amended or supplemented prospectuses, in
conformity with the requirements of the Securities Act and any
regulations promulgated thereunder, and other documents as reasonably
may be required in order to facilitate the disposition of such
Registrable Shares, but only while the Company is required under the
provisions hereof to keep the registration statement current.
(d) Use its reasonable best efforts to register or
qualify the Registrable Shares covered by such registration statement
under such other securities or blue sky laws of such jurisdictions in
the United States as the managing underwriter or placement agent (or,
if none, St. Xxxx) shall reasonably request, and do any and all other
acts and things which may be reasonably necessary to enable such
managing underwriters, placement agent or each member of the St. Xxxx
Group participating in the offering to consummate the disposition of
the Registrable Shares in such jurisdictions; PROVIDED, HOWEVER, that
in no event is the Company required to qualify to do business as a
foreign corporation in any jurisdiction where it is not so qualified;
to execute or file any general consent to service of process under the
laws of any jurisdiction; to take any action that would subject it to
service of process in suits other than those arising out of the offer
and sale of the securities covered by the registration statement; or to
subject itself to taxation in any jurisdiction where it has not
theretofore done so unless the Company shall have received a reasonably
satisfactory indemnity in respect thereto; or to subject itself to any
insurance regulation in any jurisdiction in which it has not
theretofore been so subject.
(e) Notify St. Xxxx, at any time when a prospectus
relating to any Registrable Shares covered by such registration
statement is required to be delivered under the Securities Act, of the
Company's becoming aware that the prospectus included in such
registration statement, as then in effect, includes an untrue statement
of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing, and,
subject to the limitation in Section 2.1(b), promptly prepare and
furnish to St. Xxxx and each underwriter a reasonable number of copies
of a prospectus supplemented or amended so that, as thereafter
delivered to the purchasers of the Registrable Shares, such prospectus
shall not include 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 in the light of the
circumstances then existing.
(f) As soon as practicable after the effective date of
such registration statement, and in
any event within eighteen (18) months thereafter, make generally
available to St. Xxxx an earnings statement (which need not be audited)
covering a period of at least twelve (12) consecutive months beginning
after the effective date of the registration statement, which earning
statement shall satisfy the provisions of Section 11(a) of the
Securities Act, including at the Company's option, Rule 158 thereunder.
(g) Deliver promptly to St. Xxxx, upon St. Paul's written
request, copies of all correspondence between the SEC and the Company,
its counsel or auditors and all memoranda relating to discussions with
the SEC or its staff with respect to the registration statement and
permit St. Xxxx to do such investigation, upon reasonable advance
notice, with respect to information contained in or omitted from the
registration statement as it deems reasonably necessary. St. Xxxx
agrees that it will use its reasonable best efforts not to interfere
unreasonably with the Company's business when conducting any such
investigation. St. Xxxx shall not, and shall not permit any member
(other than a member controlling St. Xxxx) of the St. Xxxx Group and
shall use its reasonable best efforts to cause any member of the St.
Xxxx Group controlling St. Xxxx and any underwriter in connection with
such offering to, disclose any material non-public information received
from the Company pursuant to this Section 2.5(g) unless such material
non-public information becomes generally known on a non-confidential
basis other than as a result of the breach of any obligation of
confidentiality.
(h) The Company agrees that it will use its reasonable
best efforts to obtain "cold comfort" letters from the Company's
independent public accountants (including one letter when such
registration statement goes effective and one at the closing) in
customary form and covering such matters of the type customarily
covered by such "cold comfort" letters.
(i) Enter into underwriting or placement agreements in
the customary form, including, without limitation, representations and
warranties and indemnification and contribution provisions for any
underwriter or placement agent selling Registrable Securities
hereunder.
(j) Use its commercially reasonable efforts to qualify
(and remain qualified) for registration on Form S-3 or F-3, as
applicable.
2.6. USE OF REGISTRATION STATEMENT. St. Xxxx shall, and shall cause
each other member (other than a member controlling St. Xxxx) of the St. Xxxx
Group and shall use its reasonable best efforts to cause each member of the St.
Xxxx Group controlling St. Xxxx and each underwriter in connection with any
public offering to, upon receipt by St. Xxxx of the Company's notice pursuant to
Section 2.5(e), promptly discontinue the disposition of Registrable Shares
pursuant to the prospectus and registration statement contemplated by such
notice, until such time as St. Xxxx and the underwriters have received copies of
the amended or supplemented prospectus contemplated by Section 2.5(e) and upon
such receipt by St. Xxxx, St. Xxxx shall, and shall cause each other member
(other than a member controlling St. Xxxx) of the St. Xxxx Group and shall use
its reasonable best efforts to cause each member of the St. Xxxx Group
controlling St. Xxxx and each underwriter in connection with any public offering
to, deliver to the Company all copies in the possession of any member of the St.
Xxxx Group or any such underwriter at the
time of receipt by St. Xxxx of the Company's notice pursuant to Section 2.5(e)
of any prospectus covering Registrable Shares.
2.7. EXPENSES.
(a) The Company shall pay (to the extent permitted by the Bermuda
Companies Act 1981 as then in effect) the Registration Expenses (other than
underwriting discounts and commissions, which shall be borne by St. Xxxx)
incurred in connection with the first two Demand Requests, and St. Xxxx shall
pay the Registration Expenses (including the underwriting discounts and
commissions) incurred in connection with all other Demand Requests, PROVIDED
that in each case, each of the Company and St. Xxxx shall pay the expenses of
its own legal counsel and PROVIDED FURTHER, that to the extent the Company files
a registration statement in response to a Demand Request made prior to the first
anniversary of the Closing, St. Xxxx will pay the Registration Expenses
(including the underwriting discounts and commissions) and such Demand Request
shall not be considered one of the first two Demand Requests for purposes of
this Section 2.7(a).
(b) With respect to the Registration Expenses (other than
underwriting discounts and commissions, which shall be borne by St. Xxxx)
incurred in connection with any piggy-back registration under Section 2.2, St.
Xxxx shall only pay such portion of such expenses that is equal to the fraction,
(i) the numerator of which is the number of Registrable Shares registered
(subject to any cutback) pursuant to the applicable Piggy-Back Request of St.
Xxxx, and (ii) the denominator of which is the total number of Common Shares
registered under the applicable registration statement.
2.8. CERTAIN OBLIGATIONS OF ST. XXXX. St. Xxxx shall provide such
information to the Company as the Company may reasonably request in connection
with any registration hereunder of Registrable Shares for St. Paul's account and
shall dispose of any such Registrable Shares pursuant to any registration
hereunder in the manner contemplated thereby, and shall notify the Company in
writing if it becomes aware of any material change or inaccuracy in such
information.
2.9. TRANSFER OF ST. XXXX OPTION. In the event St. Xxxx transfers
the St. Xxxx Option to one or more transferees pursuant to Section 5(c) of the
Option Agreement, following execution by any such transferee and delivery to the
Company of an instrument reasonably acceptable to the Company acknowledging that
such transferee has become a party to this Agreement and assumed its rights and
obligations hereunder, all references herein to St. Xxxx with respect to
Registrable Shares consisting of Common Shares issuable pursuant to the Option
Agreement shall be deemed to apply (i) in the case of a transfer of the St. Xxxx
Option in whole, solely to the transferee of the St. Xxxx Option and (ii) in the
case of a transfer of the St. Xxxx Option in part, collectively either to the
transferees of the St. Xxxx Option or, if St. Xxxx has retained a portion of the
St. Xxxx Option, to St. Xxxx and such transferee(s). The Company shall be
entitled to rely solely upon the instructions of St. Xxxx or the transferee of
the St. Xxxx Option designated in writing by St. Xxxx with respect to any rights
granted hereunder to the holders of Registrable Option Shares. The number of
demand and piggy back registration rights afforded St. Xxxx hereunder shall
apply in aggregate to St. Xxxx and any and all said transferees, without any
increase in the number of said demand and piggy back registration rights. There
are no registration rights with respect to the St. Xxxx Option itself.
2.10 LOCK-UP ARRANGEMENTS. St. Xxxx agrees that, upon the request
of the Company, it shall agree to any lock-up arrangement requested by any
underwriter for up to a 90 day period following the effectiveness of any
Securities Act registration statement covering Capital Securities (but excluding
any registration on Form S-8 under the Securities Act or any similar successor
form), PROVIDED, that if such registration statement relates to a public
offering of Common Shares, other than pursuant to a Demand Request, St. Xxxx has
the right to submit a Piggy-Back Request to the Company pursuant to Section 2.2
without regard to the notice requirement in such section.
ARTICLE III
RULE 144
3.1. AVAILABILITY OF RULE 144. The Company shall use its reasonable
best efforts to ensure that the information requirement set forth in paragraph
(c) of Rule 144 is satisfied so that the safe harbor provided by Rule 144 is
available to St. Xxxx for all transfers of Registrable Shares made after the
90th day after the Company becomes subject to the reporting requirements of
Section 13 of the Exchange Act. Upon request made by St. Xxxx at any time during
such period, the Company will provide St. Xxxx with a written statement
confirming that the Company has been subject to and has complied with the
reporting requirements as provided in said paragraph (c), unless the Company has
included such a statement in its then-latest annual or quarterly report filed
with the SEC.
ARTICLE IV
MISCELLANEOUS
4.1. TERMINATION OF CERTAIN RIGHTS. The rights of St. Xxxx to make
a Demand Request pursuant to Section 2.1 or a Piggy-Back Request pursuant to
Section 2.2 terminate on the Termination Date; PROVIDED that, as to any
Registrable Shares that are subject to a Demand Request or Piggy-Back Request
duly delivered on or prior to the Termination Date, such termination will be
delayed until such shares have been disposed of pursuant to such registration
statement or such offering has been completed or abandoned.
4.2. AMENDMENT. This Agreement may not be amended except in a
written instrument signed by the Company and St. Xxxx.
4.3. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered by hand (with receipt confirmed), or by certified mail,
postage prepaid and return receipt requested, or by facsimile addressed as
follows (or to such other address as a party may designate by written notice to
the others) and shall be deemed given on the date on which such notice is
received:
If to St. Xxxx:
The St. Xxxx Companies, Inc.
000 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxxxxx
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
If to the Company:
Platinum Underwriters Holdings, Ltd.
Clarendon Xxxxx
0 Xxxxxx Xxxxxx
Xxxxxxxx XX00
Xxxxxxx
Xxxxxxxxx: General Counsel
Facsimile: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxx
Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
4.4. ENTIRE AGREEMENT. This Agreement and the Formation and
Separation Agreement constitute the entire agreement between the parties hereto
with respect to the subject matter hereof and supersede all prior agreements and
understandings, oral and written, between the parties hereto with respect to the
subject matter hereof.
4.5. BINDING EFFECT; BENEFIT. This Agreement shall inure to the
benefit of and be binding upon the parties hereto, and their respective
successors and permitted assigns. Nothing in this Agreement, expressed or
implied, is intended to confer on any person other than the parties hereto, and
their respective successors and permitted assigns, any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
4.6. ASSIGNABILITY. This Agreement may not be assigned by any party
hereto, except that St. Xxxx xxx assign in whole or in part its rights and
obligations hereunder to any transferee of Registrable Securities representing
more than 4% of the outstanding Common Shares.
4.7. HEADINGS. The headings contained in this Agreement are for
convenience only and do not affect the meaning or interpretation of this
Agreement.
4.8. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which is deemed to be an original and all of which
together are deemed to be one and the same instrument.
4.9. APPLICABLE LAW; DISPUTE RESOLUTION. (a) This Agreement shall
be governed by, and construed in accordance with, the law of the State of New
York (without regard to principles of conflict of laws).
(b) MANDATORY ARBITRATION. The parties hereto shall promptly
submit any dispute, claim, or controversy arising out of or relating to this
Agreement, including effect, validity, breach, interpretation, performance, or
enforcement (collectively, a "DISPUTE") to binding arbitration in New York, New
York at the offices of Judicial Arbitration and Mediation Services, Inc.
("JAMS") before an arbitrator (the "ARBITRATOR") in accordance with JAMS'
Comprehensive Arbitration Rules and Procedures and the Federal Arbitration Act,
9 U.S.C. Sections 1 ET SEQ. The Arbitrator shall be a former judge selected from
JAMS' pool of neutrals. The parties agree that, except as otherwise provided
herein respecting temporary or preliminary injunctive relief, binding
arbitration shall be the sole means of resolving any Dispute. Judgment on any
award of the Arbitrators may be entered by any court of competent jurisdiction.
(c) COSTS. The costs of the arbitration proceeding and any
proceeding in court to confirm or to vacate any arbitration award or to obtain
temporary or preliminary injunctive relief as provided in paragraph (d) below,
as applicable (including, without limitation, actual attorneys' fees and costs),
shall be borne by the unsuccessful party and shall be awarded as part of the
Arbitrator's decision, unless the Arbitrator shall otherwise allocate such costs
in such decision.
(d) INJUNCTIVE RELIEF. This Section 4.9 shall not prevent the
parties hereto from seeking or obtaining temporary or preliminary injunctive
relieve in a court for any breach or threatened breach of any provision hereof
pending the hearing before and determination of the Arbitrator. The parties
hereby agree that they shall continue to perform their obligations under this
Agreement pending the hearing before and determination of the Arbitrator, it
being agreed and understood that the failure to so provide will cause
irreparable harm to the other party hereto and that the putative breaching party
has assumed all of the commercial risks associated with such breach or
threatened breach of any provision hereof by such party.
(e) COURTS. The parties agree that the State and Federal courts in
The City of New York shall have jurisdiction for purposes of enforcement of
their agreement to submit Disputes to arbitration and of any award of the
Arbitrator.
4.10. DEFINITIONS; FORMATION AND SEPARATION AGREEMENT. Capitalized
terms used but not defined in this Agreement have the meanings specified in the
Formation and Separation Agreement.
4.11. EFFECTIVENESS. This Agreement becomes effective contingent
upon the Closing automatically and with no action on the part of any person.
IN WITNESS WHEREOF, the parties named below have hereto set their hands
as of the day and year first above written.
PLATINUM UNDERWRITERS HOLDINGS, LTD.
By
Name:
Title:
THE ST. XXXX COMPANIES, INC.
By
Name:
Title: