Exhibit 10.11
FORM OF REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), dated as of [ ],
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 [ ], 2002, and the Option Agreement, dated as
of [ ], 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" means the Option Agreement, dated as of ,
2002, between St. Xxxx and the Company setting forth the terms of the St. Xxxx
Option.
"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 state ment 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
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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 options 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) 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
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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 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, 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 that
is equal to an amount of at least $50M 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:
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(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, and 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;
(vi) 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, 10% or more
of the Common Shares; and
(vii) 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
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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
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 it 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, 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)
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exceeds 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
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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
specifically for inclusion in the section of the prospectus describing the
ownership of Common Shares of the selling shareholder and its proposed
distribution of Common Shares.
(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 indem nifying 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 indem nified party failed to give the notice required
by clause (c) above, then each indemnifying party shall contri bute 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
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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
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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 regis tration
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 each member of the
St. Xxxx Group participating in the offering or underwriter 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
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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-pubic 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.
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
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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 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
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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:
-00-
Xxx Xx. 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: (00) 000-0000
If to the Company:
Platinum Underwriters Holdings, Ltd.
[ ]
Xxxxxxxx, Bermuda
Attention: General Counsel
Facsimile: (441)_______________
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
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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 and/or the provision of Services hereunder, including
effect, validity, breach, interpretation, performance, or enforcement
(collec tively, 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. xx.xx. 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
-15-
automatically and with no action on the part of any person.
-16-
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:
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