EXHIBIT 3
---------
PXRE GROUP LTD.
SERIES D PERPETUAL PREFERRED SHARES
REGISTRATION RIGHTS AGREEMENT
October 7, 2005
To the Purchasers named in
the Purchase Agreement
Ladies and Gentlemen:
PXRE Group Ltd., a Bermuda corporation (the "COMPANY"),
proposes to issue and sell in a private placement pursuant to Section 4(2) of
the Securities Act (as defined below) (such issuance and sale, the "INITIAL
PLACEMENT") to the several parties named in the Purchase Agreement (the "INITIAL
PURCHASERS") upon the terms set forth in a purchase agreement dated September
29, 2005 (the "PURCHASE AGREEMENT"), an aggregate amount of 375,000 shares of
its Series D Perpetual Preferred Shares, par value $1.00 per share (the
"PREFERRED SHARES").
The Preferred Shares will be mandatorily exchanged into either
(i) Common Shares, par value $1.00 per share, of the Company ("COMMON SHARES"),
(ii) Class B Convertible Common Shares, par value $1.00 per share, of the
Company ("CLASS B CONVERTIBLE COMMON SHARES") and (iii) Class C Convertible
Common Shares, par value $1.00 per share, of the Company ("CLASS C CONVERTIBLE
COMMON SHARES"), in each case upon the satisfaction of certain conditions as set
forth in the Description of Stock.
As an inducement to you to enter into the Purchase Agreement and in
satisfaction of a condition to your obligations thereunder, the Company agrees
with you, (i) for your benefit and (ii) for the benefit of the holders from time
to time of the Preferred Shares and the Common Shares and Convertible Common
Shares issuable upon conversion of the Preferred Shares (including you), as
follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following terms have the respective
meanings set forth below:
AGREEMENT: shall mean this Registration Rights Agreement among the
Initial Purchasers and the Company;
COMMISSION: shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act;
CONVERTIBLE COMMON SHARES: shall mean, collectively, the Class B
Convertible Common Shares and the Class C Convertible Common Shares;
DESCRIPTION OF STOCK: shall mean the Description of Stock with respect
to the Preferred Shares in the form attached as Exhibit B to the Purchase
Agreement;
EXCHANGE ACT: shall mean the Securities Exchange Act of 1934, as
amended and the rules and regulations of the Commission promulgated thereunder;
HOLDER: shall mean any holder of Registrable Securities;
MAJORITY HOLDERS: shall mean the Holders holding a majority of the then
outstanding Registrable Securities, PROVIDED, HOWEVER, that Preferred Shares,
and Common Shares and Convertible Common Shares for which Preferred Shares have
been exchanged, which have been sold or otherwise transferred pursuant to the
Shelf Registration Statement or Company Registration Statement shall not be
included in the calculation of the Majority Holders;
NOTICE AND QUESTIONNAIRE: shall mean a Notice of Registration Statement
and Selling Shareholder Questionnaire substantially in the form of Exhibit A
hereto;
PERSON: shall mean an individual, partnership, joint-stock company,
corporation, trust or unincorporated organization, and a government or agency or
political subdivision thereof;
PROSPECTUS: shall mean the prospectus included in the Shelf
Registration Statement or Company Registration Statement (including, without
limitation, a prospectus that discloses information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A under the Securities Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Registrable Securities covered by such Shelf Registration Statement or
Company Registration Statement, and all amendments and supplements to such
prospectus, including all documents filed after the date of such prospectus by
the Company under the Exchange Act and incorporated or deemed to be incorporated
by reference in such prospectus;
REGISTRABLE SECURITIES: shall mean (A) the Preferred Shares, (B) the
Common Shares and Convertible Common Shares issuable upon conversion of the
shares of Preferred Shares and (C) any stock of the Company issued as a dividend
or other distribution with respect to, or in exchange for, or upon conversion or
otherwise in replacement of, the Preferred Shares, or the Common Shares or
Convertible Common Shares issuable upon conversion of the Preferred Shares,
PROVIDED, HOWEVER, that Registrable Securities shall not include securities in
clauses (A), (B) or (C) above which have been transferred pursuant to a Shelf
Registration Statement or Company Registration Statement;
REGISTRATION EXPENSES: shall mean all expenses incurred by the Company
in compliance with Section 2(a) and (b) hereof, including, without limitation,
all registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, fees and expenses of one counsel for the Selling
Holders, blue sky fees and expenses and the expense of any special audits
incident to or required by any such registration (but excluding the compensation
of regular
2
employees of the Company, which shall be paid in any event by the Company) but
shall exclude underwriting fees, discounts and expenses with respect to the sale
of the Registrable Securities;
SECURITY, SECURITIES: shall have the meaning set forth in Section 2(I)
of the Securities Act;
SECURITIES ACT: shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder;
SELLING EXPENSES: shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities and all fees and
disbursements of counsel for each of the Selling Holders other than fees and
expenses of one counsel for the Selling Holders;
SHELF REGISTRATION STATEMENT: means a "shelf" registration statement of
the Company filed pursuant to the provisions of Section 2 hereof which covers
some or all of the Registrable Securities on Form S-3 or on another appropriate
form for an offering to be made on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act, or any similar rule that may be adopted by
the Commission, and all amendments and supplements to such registration
statement, including post-effective amendments, or any additional registration
statements filed because the Company could not obtain the withdrawal of a stop
order suspending the effectiveness of the Shelf Registration Statement or
pursuant to Section 2(a)(i)(2) hereof, in each case including the Prospectus
contained therein, all exhibits thereto and all documents incorporated or deemed
to be incorporated by reference therein.
SECTION 2. REGISTRATION RIGHTS
(a) Shelf Registration Statement.
(i) The Company shall prepare and file with the
Commission promptly following receipt of notice from the Holders (the
"DEMAND NOTICE") and in any event within 30 days the date of the
Purchase Agreement, a Shelf Registration Statement with respect to
resales of the Registrable Securities by the Holders from time to time
in accordance with the methods of distribution designated by such
Holders and set forth in such Shelf Registration Statement (subject to
Section 2(d)(xviii) hereof) and thereafter shall use their reasonable
best efforts to cause such Shelf Registration Statement to be declared
effective under the Securities Act within 150 days after receipt of the
Demand Notice. The Company shall supplement or amend the Shelf
Registration Statement if required by the rules, regulations or
instructions applicable to the registration form used by the Company
for the Shelf Registration Statement, or by the Securities Act, the
Exchange Act or the Commission.
(ii) (1) Each Holder wishing to sell Registrable
Securities pursuant to the Shelf Registration Statement and related
Prospectus agrees to deliver to the Company the Notice and
Questionnaire, together with such information as the Company shall
reasonably request, to the Company at least ten business days prior to
the effectiveness of the Shelf Registration Statement. The Company
shall take action to name each Holder as of the date that is five
calendar days prior to the effectiveness of the Shelf Registration
3
Statement so that such Holder is named as a selling security holder in
the Shelf Registration Statement at the time of its effectiveness and
is permitted to deliver the Prospectus forming a part thereof as of
such time to purchasers of such Holder's Registrable Securities in
accordance with applicable law.
(2) After the Shelf Registration Statement
has become effective, the Company shall, upon the request of any Holder
of Registrable Securities, promptly send a Notice and Questionnaire to
such Holder. From and after the date on which the Shelf Registration
Statement has become effective, the Company shall (i) as promptly as is
practicable after the date a completed and signed Notice and
Questionnaire and such other information as the Company may reasonably
request is delivered to the Company by such holder, and in any event
within five Business Days after such date, prepare and file with the
Commission (x) a supplement to the Prospectus or, if required by
applicable law regulation or decision of the staff of the Commission, a
post-effective amendment to the Shelf Registration Statement, PROVIDED,
HOWEVER, that if and when requested by the Holders of the Preferred
Shares, each underwritten offering of Common Shares and/or Convertible
Common Shares shall be for not less than $50,000,000, and PROVIDED
FURTHER that the Company will not be required to prepare and file with
the Commission a prospectus supplement with respect to an underwritten
offering of Common Shares or Convertible Common Shares of under such
Shelf Registration Statement, more frequently than twice in any
12-month period, and (y) any other document required by applicable law,
so that the Holder delivering such Notice and Questionnaire is named as
a selling security holder in the Shelf Registration Statement and is
permitted to deliver the Prospectus to purchasers of such Holder's
Registrable Securities in accordance with applicable law, and (ii) use
their reasonable best efforts to cause any such post-effective
amendment to become effective under the Securities Act as promptly as
is practicable; PROVIDED, HOWEVER, that if a Notice and Questionnaire
is delivered to the Company during a Blackout Event, the Company shall
not be obligated to take the actions set forth in clauses (i) and (ii)
until the termination of such Blackout Event.
No Holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement or any Company
Registration Statement as provided in Section 2(b) or to use the
Prospectus forming a part thereof for resales of Registrable Securities
unless such Holder has complied with the foregoing requirements and has
provided the information as requested by the Company in accordance with
this Agreement for such Holder to be named as a selling securityholder
in the Shelf Registration Statement (any such named Holder, a "SELLING
HOLDER").
(iii) The Company shall use its reasonable best
efforts to keep the Shelf Registration Statement continuously effective
under the Securities Act in order to permit the Prospectus forming a
part thereof to be usable, subject to Section 2(a)(iv) hereof, by all
Selling Holders until the earliest of (i) the second anniversary of the
Initial Placement, (ii) the date on which all the Registrable
Securities may be sold by non-affiliates ("affiliates" for such purpose
having the meaning set forth in Rule 144 under the Act) of the Company
pursuant to paragraph (k) of Rule 144 (or any successor provision)
promulgated by the Commission under the Securities Act, (iii) the date
as of which all the Registrable Securities have been transferred
pursuant to Rule 144 under the Securities
4
Act (or any similar provision then in force) and (iv) such date as of
which all the Registrable Securities have been sold pursuant to the
Shelf Registration Statement (in any such case, such period being
called the "SHELF REGISTRATION PERIOD").
The Company will, (x) subject to Section 2(a)(iv),
prepare and file with the Commission such amendments and post-effective
amendments to the Shelf Registration Statement as may be necessary to
keep the Shelf Registration Statement continuously effective for the
Shelf Registration Period, (y) subject to Section 2(a)(iv), cause the
related Prospectus to be supplemented by any required supplement, and
as so supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force) under the Securities Act and (z) comply in
all material respects with the provisions of the Securities Act with
respect to the disposition of all securities covered by the Shelf
Registration Statement during the applicable period in accordance with
the intended methods of disposition by the sellers thereof set forth in
such Shelf Registration Statement as so amended or such Prospectus as
so supplemented.
(iv) If, in the reasonable good faith judgment of
the Company, any pending bankruptcy or insolvency, pending material
merger, acquisition, corporate reorganization, other material
transaction or other event or circumstance involving the Company or any
of its affiliates makes it imprudent for the Company to file a
registration statement or to be in registration (any such event,
circumstance or transaction, a "BLACKOUT EVENT"), the Company shall not
be obligated to effect (whether by filing a registration statement,
seeking effectiveness of a registration statement or otherwise) any
registration requested by Holders or affiliate thereof. If the Company
determines that a Blackout Event exists, any sale of securities by any
Holder or any affiliate thereof, shall be postponed until the Blackout
Event no longer exists, provided, however, that no such postponement
shall exceed 90 days. The Company may suspend the use of the Prospectus
for the duration of any Blackout Event.
(v) UNDERWRITING. If the any of the Holders
intend to distribute the Registrable Securities by means of an
underwriting, they shall so advise the Company as part of their request
made pursuant to Section 2(a)(i).
(b) COMPANY REGISTRATION STATEMENT.
(i) If the Company shall determine to register
any of its Common Shares either for its own account or for the account
of any other shareholder (each such instance, a "COMPANY REGISTRATION
STATEMENT" and the period during which such Company Registration
Statement is effective, the "COMPANY REGISTRATION Period"), other than
a registration relating solely to employee benefit plans, or a
registration relating solely to a Rule 145 transaction under the
Securities Act, or a registration on any registration form which does
not permit secondary sales or does not include substantially the same
information as would be required to be included in a registration
statement covering the sale of Registrable Securities, the Company
will:
(1) promptly give to each of the
Holders a written notice thereof (which shall include a list
of the jurisdictions in which the Company
5
intends to attempt to qualify such securities under the
applicable blue sky or other state securities laws); and
(2) include in such Company
Registration Statement (and any related qualification under
blue sky laws or other compliance), and in any underwriting
involved therein, the Registrable Securities specified in a
written request or requests made by the Holders within 15 days
after receipt of the written notice from the Company described
in clause (1) above, except as set forth in Section 2(b)(ii)
below. Such written request may specify all or a part of the
Holders' Registrable Securities. Each Holder wishing to sell
Registrable Securities pursuant to the Company Registration
Statement and related Prospectus agrees to deliver to the
Company the Notice and Questionnaire, together with such
information as the Company shall reasonably request, to the
Company at least five business days prior to the effectiveness
of the Company Shelf Registration Statement. Upon the delivery
of the Notice and Questionnaire, and such other information as
the Company shall reasonably request, to the Company, such
Holder shall be deemed a Selling Holder. In the event any
Holder requests inclusion in a Company Registration Statement
pursuant to this Section 2(b) in connection with a
distribution of Registrable Securities to its partners, the
Company Registration Statement shall provide for the resale by
such partners, if requested by such Holder.
(ii) UNDERWRITING. If the Company Registration
Statement of which the Company gives notice is for a registered public
offering involving an underwriting, the Company shall so advise each of
the Holders as a part of the written notice given pursuant to Section
2(b)(i)(1) above. In such event, the right of each of the Holders to
registration pursuant to this Section 2(b) shall be conditioned upon
such Holders' participation in such underwriting and the inclusion of
such Holders' Registrable Securities in the underwriting to the extent
provided herein. The Holders whose shares are to be included in such
registration shall (together with the Company and the other
stockholders distributing their securities through such underwriting)
enter into an underwriting agreement in customary form with the
representative of the underwriter or underwriters selected for
underwriting by the Company. Notwithstanding any other provision of
this Section 2(b), if the underwriter or underwriters determine that
marketing factors require a limitation on the number of shares to be
underwritten, the underwriter may limit the number of Registrable
Securities to be included in the registration and underwriting pursuant
to Section 2(d)(xviii).
(c) EXPENSES OF REGISTRATION. All Registration Expenses
incurred in connection with any Shelf Registration Statement or Company
Registration Statement, qualification or compliance pursuant to this Section 2
shall be borne by the Company, and all Selling Expenses shall be borne by the
Selling Holders.
(d) REGISTRATION PROCEDURES. In connection with the Shelf
Registration Statement or Company Registration Statement, the following
provisions shall apply, as applicable:
6
(i) The Company shall:
(1) furnish to the Selling Holders,
prior to the filing thereof with the Commission, a copy of the
Shelf Registration Statement or Company Registration
Statement, and each amendment thereof, and a copy of any
Prospectus, and each amendment or supplement thereto
(excluding amendments caused by the filing of a report under
the Exchange Act), and shall use its reasonable best efforts
to reflect in each such document, when so filed with the
Commission, such comments as the Selling Holders reasonably
and promptly propose; and
(2) include information regarding the
Selling Holders and the methods of distribution they have
designated for their Registrable Securities provided to the
Company in Notice and Questionnaires as necessary to permit
such distribution by the methods specified therein.
(ii) Subject to Section 2(a)(iv), the Company
shall ensure that (i) each of the Shelf Registration Statement and
Company Registration Statement and any amendment thereto and any
Prospectus forming a part thereof and any amendment or supplement
thereto comply in all material respects with the Securities Act and the
rules and regulations thereunder, (ii) each of the Shelf Registration
Statement or Company Registration Statement and any amendment thereto
does not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and
(iii) any Prospectus forming a part of the Shelf Registration Statement
or Company Registration Statement, and any amendment or supplement to
such Prospectus, does not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading; PROVIDED that the Company makes no representation
with respect to information with respect to any underwriter or any
Holder required to be included in the Shelf Registration Statement or
Company Registration Statement or Prospectus pursuant to the Securities
Act or the rules and regulations thereunder and which information is
included therein in reliance upon and in conformity with information
furnished to the Company in writing by such underwriter or Holder.
(iii) The Company, as promptly as reasonably
practicable, shall advise the Selling Holders:
(1) when the Shelf Registration
Statement or Company Registration Statement and any amendment
thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto
has become effective;
(2) of any request by the Commission
following effectiveness of the Shelf Registration Statement or
Company Registration Statement for amendments or supplements
to the Shelf Registration Statement or Company
7
Registration Statement or the Prospectus or for additional
information (other than any such request relating to a review
of the Company's Exchange Act filings);
(3) of the determination by the Company
that a post-effective amendment to the Shelf Registration
Statement or Company Registration Statement would be
appropriate;
(4) of the commencement or termination
of (but not the nature of or details concerning) any Blackout
Event;
(5) of the issuance by the Commission
of any stop order suspending the effectiveness of the Shelf
Registration Statement or Company Registration Statement or
the initiation of any proceedings for that purpose;
(6) of the receipt by the Company of
any notification with respect to the suspension of the
qualification of the Registrable Securities included in the
Shelf Registration Statement or Company Registration Statement
for sale in any jurisdiction or the initiation or threat of
any proceeding for such purpose;
(7) of the happening of (but not the
nature of or details concerning) any event that requires the
making of any changes in the Shelf Registration Statement or
Company Registration Statement or the Prospectus so that, as
of such date, the statements therein are not misleading and
the Shelf Registration Statement, Company Registration
Statement or the Prospectus, as the case may be, does 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 (in the case of the
Prospectus, in light of the circumstances under which they
were made) not misleading; and
(8) of the Company's suspension of the
use of the Prospectus as a result of any of the events or
circumstances described in paragraphs (2) through (7) above,
and of the termination of any such suspension.
(iv) The Company shall use its reasonable best
efforts to obtain the withdrawal of any order suspending the
effectiveness of the Shelf Registration Statement or Company
Registration Statement or the lifting of any suspension of the
qualification (or exemption from qualification) of any of the
Registrable Securities for offer or sale in any jurisdiction at the
earliest possible time.
(v) The Company shall promptly furnish to each
Selling Holder, without charge, at least one copy of the Shelf
Registration Statement or Company Registration Statement and any
post-effective amendment thereto, including all exhibits (including
those incorporated by reference), financial statements and schedules.
(vi) The Company shall, during the Shelf
Registration Period or Company Registration Period, promptly deliver to
each Selling Holder and any sales or
8
placement agent or underwriters acting on their behalf, without charge,
as many copies of the Prospectus (including each preliminary
Prospectus) included in the Shelf Registration Statement or Company
Registration Statement (excluding documents incorporated by reference),
and any amendment or supplement thereto, as such person may reasonably
request; and, except as provided in Sections 2(a)(iv) and 2(d)(xvi)
hereof, the Company consents to the use of the Prospectus or any
amendment or supplement thereto by each of the selling Holders in
connection with the offering and sale of the Registrable Securities
covered by the Prospectus or any amendment or supplement thereto during
the Shelf Registration Period or Company Registration Period.
(vii) Prior to any offering of Registrable
Securities pursuant to the Shelf Registration Statement or the Company
Registration Statement, the Company shall cooperate with the Selling
Holders and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale, under
the securities or blue sky laws of such jurisdictions within the United
States as any such Selling Holder reasonably request and shall maintain
such qualification in effect so long as required and do any and all
other acts or things necessary or advisable to enable the offer and
sale in such jurisdictions of the Registrable Securities covered by
such Shelf Registration Statement or Company Registration Statement;
PROVIDED, HOWEVER, that the Company will not be required to (A) qualify
generally to do business as a foreign corporation or as a dealer in
securities in any jurisdiction where it is not then so qualified or to
(B) take any action which would subject it to service of process or
taxation in any such jurisdiction where it is not then so subject.
(viii) The Company shall cooperate with the Selling
Holders to facilitate the timely preparation and delivery of
certificates representing Registrable Securities sold pursuant to the
Shelf Registration Statement or Company Registration Statement free of
any restrictive legends and registered in such names as Selling Holders
may request.
(ix) Subject to the exceptions contained in (A)
and (B) of Section 2(d)(vii) hereof, the Company shall use its
reasonable best efforts to cause the Registrable Securities covered by
the Shelf Registration Statement or Company Registration Statement to
be registered with or approved by such other federal, state and local
governmental agencies or authorities, and self-regulatory organizations
in the United States as may be necessary to enable the Holders to
consummate the disposition of such Registrable Securities as
contemplated by the Shelf Registration Statement or the Company
Registration Statement; without limitation to the foregoing, the
Company shall make all filings and provide all such information as may
be required by the National Association of Securities Dealers, Inc.
(the "NASD") in connection ---- with the offering under the Shelf
Registration Statement or the Company Registration Statement of the
Transfer Restricted Securities (including, without limitation, such as
may be required by NASD Rule 2710 or 2720), and shall cooperate with
each Holder in connection with any filings required to be made with the
NASD by such Holder in that regard.
(x) Upon the occurrence of any event described
in Section 2(d)(iii) hereof, the Company shall as soon as reasonably
practicable prepare and file with the
9
Commission a post-effective amendment to the Shelf Registration
Statement or Company Registration Statement or an amendment or
supplement to the related Prospectus or any document incorporated
therein by reference or file a document which is incorporated or deemed
to be incorporated by reference in such Shelf Registration Statement or
Prospectus, as the case may be, so that, as thereafter delivered to
purchasers of the Registrable Securities included therein, the Shelf
Registration Statement or Company Registration Statement and the
Prospectus, in each case as then amended or supplemented, will not
include an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein (in the case of the Prospectus in light of
the circumstances under which they were made) not misleading and, in
the case of a post-effective amendment, use its reasonable best efforts
to cause it to become effective as promptly as practicable; PROVIDED
that the Company's obligations under this paragraph (x) shall be
suspended if the Company has suspended the use of the Prospectus in
accordance with Section 2(a)(iv) hereof and given notice of such
suspension to Selling Holders, it being understood that the Company's
obligations under this Section 2(d)(x) shall be automatically
reinstated at the end of such Blackout Event.
(xi) The Company shall use its best efforts to
comply with all applicable rules and regulations of the Commission and
shall make generally available to its Holders as soon as practicable
but in any event not later than 50 days after the end of a 12-month
period (or 105 days, if such period is a fiscal year) after (i) the
effective date of the Shelf Registration Statement or Company
Registration Statement, (ii) the effective date of each post-effective
amendment to the Shelf Registration Statement or Company Registration
Statement, and (iii) the date of each filing by the Company with the
Commission of an Annual Report on Form 10-K that is incorporated by
reference or deemed to be incorporated by reference in the Shelf
Registration Statement or Company Registration Statement, an earnings
statement satisfying the provisions of Section 11(a) of the Act and
Rule 158 promulgated by the Commission thereunder.
(xii) Upon request of the Majority Holders, the
Company shall cause all Registrable Securities issued (or, in the case
of Common Shares, issuable upon conversion of the Preferred Shares or
the Convertible Common Shares into which the Preferred Shares may be
exchanged for) to be listed on each securities exchange or quotation
system on which the Common Shares are then listed no later than the
date the Shelf Registration Statement or the Company Registration
Statement is declared effective and, in connection therewith, to make
such filings as may be required under the Exchange Act and to have such
filings declared effective as and when required thereunder.
(xiii) The Company may require each Holder of
Registrable Securities to be sold pursuant to the Shelf Registration
Statement or Company Registration Statement to furnish to the Company
such information regarding the Holder and the distribution of such
Registrable Securities sought by the Notice and Questionnaire and such
additional information as may, from time to time, be required by the
Securities Act and the rules and regulations promulgated thereunder,
and the obligations of the Company to any Holder hereunder shall be
expressly conditioned on the compliance of such Holder with such
request.
10
(xiv) The Company, subject to the provisions of
paragraph (xviii) of this Section 2(d), shall enter into such customary
agreements (including underwriting agreements) and take all other
appropriate actions as may be reasonably requested in order to expedite
or facilitate the registration or the disposition of the Registrable
Securities, and in connection therewith, if an underwriting agreement
is entered into, cause the same to contain indemnification and
contribution provisions and procedures no less favorable than those set
forth in Section 5. The plan of distribution in the Shelf Registration
Statement or the Company Registration Statement and the Prospectus
included therein shall permit resales of Registrable Securities to be
made by selling security holders through underwriters, brokers and
dealers, and shall also include such other information as the Selling
Holders may reasonably request.
(xv) In connection with an underwritten offering,
if any, the Company shall, if reasonably requested in writing by
Majority Holders:
(1) make reasonably available for
inspection during normal business hours by any underwriter
participating in any disposition pursuant to such Shelf
Registration Statement or Company Registration Statement, and
any attorney, accountant or other agent retained by any such
underwriter all relevant financial and other records,
pertinent corporate documents and properties of the Company
and their subsidiaries as is customary for due diligence
examinations in connection with public offerings; PROVIDED,
HOWEVER, if the foregoing inspection would otherwise disrupt
the Company's conduct of its business, such inspection shall,
to the greatest extent practicable, be coordinated by the
underwriters on behalf of the other parties;
(2) cause the Company's officers,
directors, employees, accountants and auditors to supply,
during normal business hours, all relevant information
reasonably requested by any such underwriter, attorney,
accountant or agent in connection with any such Shelf
Registration Statement or Company Registration Statement as is
customary for similar due diligence examinations; provided,
HOWEVER, that any information that is designated in writing by
the Company, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by the
Holders or any such underwriter, attorney, accountant or
agent, unless disclosure thereof is made in connection with a
court, administrative or regulatory proceeding or required by
law, or such information has become available to the public
generally through the Company or through a third party without
an accompanying obligation of confidentiality; provided,
further, that if the foregoing information gathering would
otherwise disrupt the Company's conduct of its business, such
information gathering shall, to the greatest extent
practicable, be coordinated by the underwriters on behalf of
the other parties;
(3) deliver a letter, addressed to the
Selling Holders and the underwriters, if any, in which the
Company shall make such representations and warranties in
form, substance and scope as are customarily made by issuers
to underwriters;
11
(4) obtain opinions of counsel to the
Company and updates thereof (which counsel and opinions, in
form, scope and substance, shall be reasonably satisfactory to
the underwriters, if any) addressed to each Selling Holder and
the underwriters, if any, covering such matters as are
customarily covered in opinions requested in public offerings;
(5) obtain "cold comfort" letters and
updates thereof from the current and former independent
certified public accountants of the Company (and, if
necessary, any other independent certified public accountants
of any subsidiary of the Company or of any business acquired
by the Company for which financial statements and financial
data are, or are required to be, included in the Shelf
Registration Statement or Company Registration Statement),
addressed to each Selling Holder (provided such Holder
furnishes the accountants, prior to the date such "cold
comfort" letter is required to be delivered, with such
representations as the accountants customarily require in
similar situations) and the underwriters, if any, in customary
form and covering matters of the type customarily covered in
"cold comfort" letters in connection with primary underwritten
offerings; and
(6) deliver such documents and
certificates as may be reasonably requested by the Selling
Holders or, in the case of an underwritten offering, the
underwriters, if any, including those to evidence compliance
with Section 2(d)(x) and with any customary conditions
contained in the underwriting agreement or other agreement
entered into by the Company.
The foregoing actions set forth in clauses (3), (4), (5) and
(6) of this Section 2(d)(xv) shall be performed at (A) the
effectiveness of such Shelf Registration Statement or Company
Registration Statement and each post-effective amendment
thereto and (B) the closing under any underwriting or similar
agreement as and to the extent required thereunder.
If any of the Registrable Securities covered by the Shelf
Registration Statement or Company Registration Statement are
to be sold in an underwritten offering, the underwriter or
underwriters and manager or managers that will manage each
such offering will be selected by the Majority Holders of such
Registrable Securities included in such offering and shall be
reasonably acceptable to the Company. No Holder of Registrable
Securities may participate in any underwritten offering unless
such Holder (a) agrees to sell such Holder's Registrable
Securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to
approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting
arrangements and other documents required under the terms of
such underwriting agreements. The Holders of Registrable
Securities that participate in an underwritten offering shall
be required to pay on a ratable basis all registration
expenses associated with or arising as a result of the
underwritten offering, payable by such Holders pursuant to
Section 2 hereof.
12
(xvi) Each Selling Holder agrees that, upon
receipt of notice of the happening of an event described in Sections
2(d)(iii)(2) through and including 2(d)(iii)(7), each Holder shall
forthwith discontinue (and shall cause its agents and representatives
to discontinue) disposition of Registrable Securities and will not
resume disposition of Registrable Securities until such Selling Holder
has received copies of an amended or supplemented Prospectus
contemplated by Section 2(d)(x) hereof, or until such Selling Holder is
advised in writing by the Company that the use of the Prospectus may be
resumed or that the relevant Blackout Event has been terminated, as the
case may be; PROVIDED that the foregoing shall not prevent the sale,
transfer or other disposition of Registrable Securities by a Selling
Holder in a transaction which is exempt from, or not subject to, the
registration requirements of the Securities Act, so long as such
Selling Holder does not and is not required to deliver the applicable
Prospectus or the Shelf Registration Statement or Company Registration
Statement in connection with such sale, transfer or other disposition,
as the case may be; and PROVIDED, FURTHER, that the provisions of this
Section 2(d)(xvi) shall not prevent the occurrence of a registration
default.
(xvii) In the event that any broker-dealer
registered under the Exchange Act shall underwrite any Registrable
Securities or participate as a member of an underwriting syndicate or
selling group or "assist in the distribution" (within the meaning of
the NASD Rules) thereof, whether as a Holder of such Registrable
Securities or as an underwriter, a placement or sales agent or a broker
or dealer in respect thereof, or otherwise, the Company shall assist
such broker-dealer in complying with the NASD Rules, including, without
limitation, by:
(1) if the NASD Rules shall so require,
engaging a "qualified independent underwriter" (as defined in
the NASD Rules) to participate in the preparation of the Shelf
Registration Statement or Company Registration Statement, to
exercise usual standards of due diligence with respect thereto
and, if any portion of the offering contemplated by the Shelf
Registration Statement or Company Registration Statement is an
underwritten offering or is made through a placement or sales
agent, to recommend the price of such Registrable Securities;
(2) indemnifying any such qualified
independent underwriter to the extent of the indemnification
of underwriters provided in Section 3 hereof; and
(3) providing such information to such
broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the NASD
Rules.
(xviii) Anything herein to the contrary
notwithstanding, the Company will not be required to pay the costs and
expenses of, or to participate in the marketing or "road show"
presentations of, or agree to indemnification or contribution
agreements with respect to, more than two underwritten offerings
initiated at the request of the Majority Holders, or to effect more
than two underwritten offerings at the request of such Holders. The
Company will not be required to pay the costs and expenses of, or to
participate in the marketing or "road show" presentations of, an
underwritten offering
13
unless the Majority Holders have requested that such Registrable
Securities be included in such an underwritten offering. Upon receipt
by the Company, from the Majority Holders of a request for an
underwritten offering, the Company will, within 10 days thereafter,
cause the Company to mail notice to all Holders of Registrable
Securities stating that: (i) the Company has received a request from
the Holders of the requisite amount of Registrable Securities to effect
an underwritten offering on behalf of such Holders; (ii) under the
terms of this Agreement, all Holders of Registrable Securities may
include their Registrable Securities in such underwritten offering,
subject to the terms and conditions set forth in this Agreement and
subject to the right of the underwriters to reduce, in light of market
conditions and other similar factors, the aggregate principal amount of
Registrable Securities included in such underwritten offering; (iii)
all Holders electing to include Registrable Securities in such
underwritten offering must notify the Company in writing of such
election (the "ELECTION"), and setting forth an address and facsimile
number to which such written elections may be sent and the deadline
(which shall be 12:00 midnight on the 10th calendar day after such
notice is mailed to Holders or, if not a Business Day, the next
succeeding Business Day (the "DEADLINE")) by which such elections must
be received by the Company; and (iv) setting forth such other
instructions as shall be necessary to enable Holders to include their
Registrable Securities in such underwritten offering. No Holder shall
be entitled to participate in an underwritten offering unless such
Holder notifies the Company of such Election by the Deadline.
Notwithstanding anything to the contrary contained herein, if the
underwriters for an underwritten offering to be effected pursuant to
this Section 2(d)(xviii) advise the Holders of the Registrable
Securities to be included in such underwritten offering that, because
of the aggregate principal amount of Registrable Securities that such
Holders have requested be included in the underwritten offering, the
success of the offering would likely be materially adversely affected
by the inclusion of all Registrable Securities requested to be
included, then the principal amount of Registrable Securities to be
offered for the accounts of Holders shall be reduced pro rata,
according to the aggregate principal amount of Registrable Securities
requested for inclusion by each such Holder, to the extent necessary to
reduce the size of the offering to the size recommended by the
underwriter. Notwithstanding anything to the contrary contained herein,
neither the Company nor any Person, other than a Holder Registrable
Securities and only with respect to its Registrable Securities, shall
be entitled to include any securities in the underwritten offering.
(e) Without the consent of the Majority Holders, the
Company will not grant rights to any other person with respect to the
registration under the Securities Act of the securities of the Company that are
PARI PASSU with, or superior in any respect to, those rights granted to the
Holders of the Registrable Securities hereunder.
SECTION 3. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless
each Holder of Registrable Securities covered by the Shelf Registration
Statement or Company Registration Statement, the directors, officers,
partners, members, employees and agents of each such Holder and each
person who controls any such Holder within the meaning of either the
Securities Act or the Exchange Act against any and all losses, claims,
14
damages or liabilities, joint or several, to which they or any of them
may become subject under the Securities Act, the Exchange Act or other
Federal or state law or regulation, at common law or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Shelf Registration
Statement or Company Registration Statement as originally filed or in
any amendment thereof, or in any preliminary Prospectus or Prospectus,
or in any amendment thereof or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses
reasonably incurred by any of them in connection with defending any
such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that
the Company will not be liable in any such case to any Holder to the
extent that any such loss, claim, damage or liability arises out of or
is based upon (A) any such untrue statement or alleged untrue statement
or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of any such Holder specifically for inclusion therein, (B) use
of the Shelf Registration Statement or Company Registration Statement
or the related Prospectus during a period when use of such Prospectus
has been suspended pursuant to Section 2(a)(iv) or Section 2(d)(xvi)
hereof; PROVIDED, in each case, that Holders received prior notice of
such suspension, or (C) if the Holder was required under applicable law
to deliver a Prospectus and fails to deliver a Prospectus, as then
amended or supplemented, PROVIDED that the Company shall have delivered
to such Holder such Prospectus, as then amended or supplemented. This
indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) Each Holder of Registrable Securities covered by the
Shelf Registration Statement or Company Registration Statement
severally and not jointly agrees to indemnify, hold harmless and
reimburse
(i) the Company,
(ii) each of its directors,
(iii) each of its officers, and
(iv) each person who controls the Company within
the meaning of either the Securities Act or the Exchange Act
to the same extent as the foregoing indemnity from the Company
to each such Holder,
but only with reference to written information relating to such Holder
furnished to the Company by or on behalf of such Holder specifically
for inclusion in the documents referred to in the foregoing indemnity;
PROVIDED THAT the indemnity to be paid by each respective Holder shall
not exceed the net proceeds received by such Holder from the offer and
sale of its Registrable Securities.
15
This indemnity agreement shall be in addition to any liability
which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section 3 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 3, notify the
indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it
was not otherwise notified of such action and such failure results in
the forfeiture by the indemnifying party of any rights or defenses. The
indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification
is sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained
by the indemnified party or parties except as set forth below);
PROVIDED, HOWEVER, that such counsel shall be reasonably satisfactory
to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an
action, the indemnified party shall have the right to employ separate
counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel
if:
(i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would
not be permissible under the applicable standards of
professional responsibility;
(ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party
and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are
different from or additional to those available to the
indemnifying party and that representation of the indemnified
party by counsel chosen by the indemnifying party would be
inappropriate due to actual or potential differing interests
among the parties represented by such counsel;
(iii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified
party to represent the indemnified party within a reasonable
time after notice of the institution of such action; or
(iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of
the indemnifying party.
It is understood that the indemnifying party or parties shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees, disbursements and other charges of more than one
separate firm of attorneys (in addition to any local counsel) at any one time
for all such indemnified party or parties. Neither an indemnifying party nor an
indemnified party will, without the prior written consent of the other parties,
settle or compromise or consent to the entry of any judgment with respect to any
pending or threatened
16
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not such other parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of such other parties
from all liability arising out of such claim, action, suit or proceeding. An
indemnifying party shall not be liable for any losses, claims, damages or
liabilities by reason of any settlement of any action or proceeding effected
without such indemnifying party's prior written consent, which consent will not
be unreasonably withheld.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 3 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, then each applicable indemnifying party
shall have an obligation to contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "LOSSES"), as
incurred, to which such indemnified party may be subject in such proportion as
is appropriate to reflect the relative benefits received by such indemnifying
party, on the one hand, and such indemnified party, on the other hand, from any
sales of Registrable Securities under the Shelf Registration Statement or
Company Registration Statement. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the indemnifying party and the
indemnified party shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received
by the Company shall be deemed to be equal to the total net proceeds from the
Initial Placement of the Registrable Securities pursuant to the Purchase
Agreement (before deducting expenses). Benefits received by the Initial
Purchasers shall be deemed to be equal to the total purchase discounts and
commissions received in connection with the Initial Placement of the Registrable
Securities as set forth in the Purchase Agreement, and benefits received by any
other Holders shall be deemed to be equal to the value of receiving Registrable
Securities registered under the Securities Act. Benefits received by any
underwriter shall be deemed to be equal to the total underwriting discounts and
commissions, as set forth on the cover page of the Prospectus forming a part of
the Shelf Registration Statement or the Company Registration Statement which
resulted in such Losses. Relative fault shall be determined by reference to
whether any untrue statement or omission or alleged untrue statement or omission
relates to information provided by the indemnifying party, on the one hand, or
by the indemnified party, on the other hand, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The parties agree that it would not be just
and equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this Section
3(d), no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 3, each person who controls a Holder within the meaning of either
the Securities Act or the Exchange Act and each director, officer, employee and
agent of such Holder shall have the same rights to contribution as such Holder,
and each person who controls the Company within the meaning of either the
Securities Act or the Exchange Act, each officer of the Company who signed the
Shelf Registration Statement or Company Registration Statement and each director
of the Company
17
shall have the same rights to contribution as the Company, and each person who
controls an underwriter within the meaning of either the Securities Act or the
Exchange Act and each officer and director of each underwriter shall have the
same rights to contribution as such underwriter, subject in each case to the
applicable terms and conditions of this Section 3 (d).
(e) The provisions of this Section 3 will remain in full
force and effect, regardless of any investigation made by or on behalf of any
Holder, any underwriter, the Company, or any of the officers, directors or
controlling persons referred to in Section 3 hereof, and will survive the sale
by a Holder of Registrable Securities covered by the Shelf Registration
Statement or Company Registration Statement.
SECTION 4. MISCELLANEOUS
(a) NO INCONSISTENT AGREEMENTS. The Company has not, as
of the date hereof, entered into nor shall it, on or after the date
hereof, enter into, any agreement with respect to its securities that
is inconsistent with the rights granted to the Holders herein or
otherwise conflicts with the provisions hereof.
(b) AMENDMENTS AND WAIVERS. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, qualified, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, unless the
Company has obtained the written consent of the Majority Holders;
PROVIDED that with respect to any matter that directly or indirectly
affects the exclusive rights of the Initial Purchasers hereunder, the
Company shall obtain the written consent of each of the Initial
Purchasers against which such amendment, qualification, supplement,
waiver or consent is to be effective. Notwithstanding the foregoing
(except the foregoing proviso), a waiver or consent to departure from
the provisions hereof with respect to a matter that relates exclusively
to the rights of Holders whose Registrable Securities are being sold
pursuant to the Shelf Registration Statement or Company Registration
Statement and that does not directly or indirectly affect the rights of
other Holders may be given by the Majority Holders, determined on the
basis of the Registrable Securities being sold rather than registered
under such Shelf Registration Statement or Company Registration
Statement.
(c) NOTICES. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand-delivery, first-class mail, telecopier, or air courier
guaranteeing overnight delivery:
(i) if to the Initial Purchasers, initially at
its address set forth in the Purchase Agreement;
(ii) if to any other Holder, at the most current
address of such Holder maintained by the transfer agent for
the Preferred Shares, Common Shares or Convertible Common
Shares, or, in the case of the Selling Holder, the address set
for in its Notice and Questionnaire; and
18
(iii) if to the Company, initially at the
Company's address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given when received, if delivered by hand or air courier, and
when sent, if sent by first-class mail or telecopier.
The Initial Purchasers or the Company by notice to the other
may designate additional or different addresses for subsequent notices
or communications.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each
of the parties, including, without the need for an express assignment
or any consent by the Company thereto, subsequent Holders. The Company
hereby agrees to extend the benefits of this Agreement to any Holder
and underwriter and any such Holder and underwriter may specifically
enforce the provisions of this Agreement as if an original party
hereto.
(e) COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the
same agreement.
(f) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
(h) SEVERABILITY. In the event that any one of more of
the provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect
for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions hereof
shall not be in any way impaired or affected thereby, it being intended
that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
(i) SECURITIES HELD BY THE COMPANY, ETC. Whenever the
consent or approval of Holders of a specified percentage of principal
amount of Preferred Shares, or the Common Shares or Convertible Common
Shares issuable upon conversion of the Preferred Shares, is required
hereunder, Preferred Shares, or Common Shares or Convertible Common
Shares issued upon conversion of the Preferred Shares, held by the
Company or its affiliates (other than subsequent Holders of Preferred
Shares, or the Common Shares or Convertible Common Shares issued upon
conversion of the Preferred Shares, if such subsequent Holders are
deemed to be affiliates solely by reason of their holdings of such
securities) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
19
(j) TERMINATION. This Agreement and the obligations of
the parties hereunder shall terminate upon the end of the Shelf
Registration Period or Company Registration Period, as applicable,
except for any liabilities or obligations under Sections 2(a)(iv), 2(c)
or 3 to the extent arising prior to the end of such Shelf Registration
Period or Company Registration Period.
[signature page follows]
20
IN WITNESS WHEREOF, the undersigned has executed this Registration
Rights Agreement as of the date first above written.
PXRE GROUP LTD.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and
Treasurer
[Registration Rights Agreement]
IN WITNESS WHEREOF, the undersigned has executed this Registration
Rights Agreement as of the date first above written.
ANCHORAGE CAPITAL MASTER OFFSHORE, LTD.
By: Anchorage Advisors, L.L.C.,
its advisor
By: Anchorage Advisors Management, L.L.C.,
its Managing Member
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Member
[Registration Rights Agreement]
IN WITNESS WHEREOF, the undersigned has executed this Registration
Rights Agreement as of the date first above written.
TONGA PARTNERS, L.P.
By: Xxxxxxx Capital LLC,
as investment advisor
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Member
ANEGADA MASTER FUND, LTD.
By: Xxxxxxx Capital LLC,
as investment advisor
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Member
[Registration Rights Agreement]
IN WITNESS WHEREOF, the undersigned has executed this Registration
Rights Agreement as of the date first above written.
CAPZ PXRE HOLDINGS, LLC
By: Capital Z Financial Services Fund II, L.P.,
its Managing Member
By: Capital Z Partners, Ltd.,
its ultimate general partner
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: General Counsel
CAPZ PXRE HOLDINGS PRIVATE, LLC
By: Capital Z Financial Services Private
Fund II, L.P., its Managing Member
By: Capital Z Partners, Ltd.,
its ultimate general partner
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: General Counsel
[Registration Rights Agreement]
IN WITNESS WHEREOF, the undersigned has executed this Registration
Rights Agreement as of the date first above written.
D.E. SHAW INVESTMENT GROUP, L.L.C.
By: X.X. Xxxx & Co., L.P.,
as managing member
By: /s/ Xxx Xxxxx
---------------------------------------
Name: Xxx Xxxxx
Title: Managing Director
IN WITNESS WHEREOF, the undersigned has executed this Registration
Rights Agreement as of the date first above written.
D.E. SHAW VALENCE PORTFOLIOS, L.L.C.
By: X.X. Xxxx & Co., L.P.,
as managing member
By: /s/ Xxx Xxxxx
---------------------------------------
Name: Xxx Xxxxx
Title: Managing Director
[Registration Rights Agreement]
IN WITNESS WHEREOF, the undersigned has executed this Registration
Rights Agreement as of the date first above written.
XXXXXXXX PARTNERS, L.P.
By: Xxxxxxxx Management Company,
its investment advisor
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Co-President
XXXXXXXX PARTNERS II, L.P.
By: Xxxxxxxx Management Company,
its investment advisor
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Co-President
XXXXXXXX OFFSHORE INVESTORS, LTD.
By: Xxxxxxxx Management Company,
its investment advisor
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Co-President
[Registration Rights Agreement]
IN WITNESS WHEREOF, the undersigned has executed this Registration
Rights Agreement as of the date first above written.
ENGINEERS JOINT PENSION PLAN & TRUST
By: Xxxxxxxx Management Company,
its investment advisor
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Co-President
INTERNATIONAL BANCSHARES CORPORATION
EMPLOYEES PROFIT SHARING PLAN & TRUST
By: Xxxxxxxx Management Company,
its investment advisor
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Co-President
EHL XXXXXXXX LIMITED
By: Xxxxxxxx Portfolio Management, LLC,
its investment advisor
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
[Registration Rights Agreement]
IN WITNESS WHEREOF, the undersigned has executed this Registration
Rights Agreement as of the date first above written.
ETON PARK MASTER FUND, LIMITED
By: Eton Park Capital Management, L.P.,
its investment advisor
By: /s/ Xxxx Xxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxx
Title:
ETON PARK FUND, L.P.
By: Eton Park Capital Management, L.P.,
its investment advisor
By: /s/ Xxxx Xxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxx
Title:
[Registration Rights Agreement]
IN WITNESS WHEREOF, the undersigned has executed this Registration
Rights Agreement as of the date first above written.
OZ MASTER FUND, LTD.
By: OZ Management, LLC,
its investment advisor
By: /s/ Xxx Xxx
---------------------------------------
Name: Xxx Xxx
Title: Senior Managing Member
[Registration Rights Agreement]
IN WITNESS WHEREOF, the undersigned has executed this Registration
Rights Agreement as of the date first above written.
PERRY PARTNERS, L.P.
By: Perry Capital, L.L.C.,
as investment advisor
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxxx X. Xxxx
Title: General Counsel
PERRY PARTNERS, INTERNATIONAL, INC.
By: Perry Capital, L.L.C.,
as investment advisor
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxxx X. Xxxx
Title: General Counsel
[Registration Rights Agreement]
IN WITNESS WHEREOF, the undersigned has executed this Registration
Rights Agreement as of the date first above written.
RESERVOIR CAPITAL PARTNERS, L.P.
By: Reservoir Capital Group, L.L.C.,
its general partner
By: /s/ Xxxxx Xxxx
---------------------------------------
Name: Xxxxx Xxxx
Title: President
RESERVOIR CAPITAL INVESTMENT PARTNERS, L.P.
By: Reservoir Capital Group, L.L.C.,
its general partner
By: /s/ Xxxxx Xxxx
---------------------------------------
Name: Xxxxx Xxxx
Title: President
RESERVOIR CAPITAL MASTER FUND, L.P.
By: Reservoir Capital Group, L.L.C.,
its general partner
By: /s/ Xxxxx Xxxx
---------------------------------------
Name: Xxxxx Xxxx
Title: President
RESERVOIR CAPITAL MASTER FUND II,, L.P.
By: Reservoir Capital Group, L.L.C.,
its general partner
By: /s/ Xxxxx Xxxx
---------------------------------------
Name: Xxxxx Xxxx
Title: President
[Registration Rights Agreement]
IN WITNESS WHEREOF, the undersigned has executed this Registration
Rights Agreement as of the date first above written.
ROYAL CAPITAL VALUE FUND, LP
By: Royal Capital Management, LLC,
its investment advisor
By: /s/ Yale X. Xxxxxxx
---------------------------------------
Name: Yale X. Xxxxxxx
Title: Managing Member
ROYAL CAPITAL VALUE FUND (QP), LP
By: Royal Capital Management, LLC,
its investment advisor
By: /s/ Yale X. Xxxxxxx
---------------------------------------
Name: Yale X. Xxxxxxx
Title: Managing Member
ROYALCAP VALUE FUND, LTD.
By: Royal Capital Management, LLC,
its investment advisor
By: /s/ Yale X. Xxxxxxx
---------------------------------------
Name: Yale X. Xxxxxxx
Title: Managing Member
SENECA CAPITAL, LP
By: Royal Capital Management, LLC,
its investment advisor
By: /s/ Yale X. Xxxxxxx
---------------------------------------
Name: Yale X. Xxxxxxx
Title: Managing Member
[Registration Rights Agreement]
IN WITNESS WHEREOF, the undersigned has executed this Registration
Rights Agreement as of the date first above written.
SAB CAPITAL PARTNERS, L.P.
By: SAB Capital Advisors, L.L.C.,
its general partner
By: /s/ Xxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Chief Financial Officer
SAB CAPITAL PARTNERS II, L.P.
By: SAB Capital Advisors, L.L.C.,
its general partner
By: /s/ Xxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Chief Financial Officer
SAB OVERSEAS MASTER FUND, L.P.
By: SAB Capital Advisors, L.L.C.,
its general partner
By: /s/ Xxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Chief Financial Officer
[Registration Rights Agreement]
IN WITNESS WHEREOF, the undersigned has executed this Registration
Rights Agreement as of the date first above written.
SCOPIA PARTNERS LLC
By: Scopia Management, Inc.,
its investment manager
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Executive Vice President
SCOPIA PARTNERS QP LLC
By: Scopia Management, Inc.,
its investment manager
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Executive Vice President
SCOPIA PX LLC
By: Scopia Management, Inc.,
its investment manager
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Executive Vice President
SCOPIA LONG LLC
By: Scopia Management, Inc.,
its investment manager
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Executive Vice President
[Registration Rights Agreement]
IN WITNESS WHEREOF, the undersigned has executed this Registration
Rights Agreement as of the date first above written.
SCOPIA INTERNATIONAL LIMITED
By: Scopia Management, Inc.,
its investment manager
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Executive Vice President
SCOPIA PX INTERNATIONAL LIMITED
By: Scopia Management, Inc.,
its investment manager
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Executive Vice President
THE COAST FUND L.P.
By: Scopia Management, Inc.,
its investment manager
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Executive Vice President
[Registration Rights Agreement]
EXHIBIT A
FORM OF SELLING SECURITY HOLDER NOTICE AND QUESTIONNAIRE
The undersigned beneficial holder of Series D Perpetual Preferred
Shares (the "Preferred Shares"), par value $1.00 per share, of PXRE Group Ltd.
("PXRE" or the "Company") or common shares, par value $1.00 per share, of the
Company issuable upon conversion of the Preferred Shares (together with the
Preferred Shares, the "Registrable Securities") of the Company understands that
the Company has filed or intends to file with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (the "Shelf
Registration Statement") for the registration and resale under Rule 415 of the
Securities Act of 1933, as amended (the "Securities Act"), of the Registrable
Securities in accordance with the terms of the Registration Rights Agreement
(the "Registration Rights Agreement") dated as of October 7, 2005 between the
Company and the initial purchasers named therein. The Registration Rights
Agreement is available from the Company upon request at the address set forth
below. All capitalized terms not otherwise defined herein shall have the meaning
ascribed thereto in the Registration Rights Agreement.
Each beneficial owner of Registrable Securities is entitled to the
benefits of the Registration Rights Agreement. In order to sell or otherwise
dispose of any Registrable Securities pursuant to the Shelf Registration
Statement, a beneficial owner of Registrable Securities generally will be
required to be named as a selling securityholder in the related prospectus,
deliver a prospectus to purchasers of Registrable Securities and be bound by
those provisions of the Registration Rights Agreement applicable to such
beneficial owner (including certain indemnification provisions as described
below). Beneficial owners that do not complete this Notice and Questionnaire and
deliver it to the Company as provided below will not be named as selling
securityholders in the prospectus and therefore will not be permitted to sell
any Registrable Securities pursuant to the Shelf Registration Statement.
Beneficial owners are encouraged to complete and deliver this Notice and
Questionnaire prior to the effectiveness of the Shelf Registration Statement so
that such beneficial owners may be named as selling securityholders in the
related prospectus at the time of effectiveness. Upon receipt of a completed
Notice and Questionnaire from a beneficial owner following the effectiveness of
the Shelf Registration Statement, the Company will, as promptly as practicable
but in any event within five business days of such receipt, file such amendments
to the Shelf Registration Statement or supplements to the related prospectus as
are necessary to permit such holder to deliver such prospectus to purchasers of
Registrable Securities.
Certain legal consequences may arise from being named as selling
securityholders in the Shelf Registration Statement and the related prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and the related prospectus.
NOTICE
The undersigned beneficial owner (the "Selling Securityholder") of
Registrable Securities hereby gives notice to the Company of its intention to
sell or otherwise dispose of Registrable Securities beneficially owned by it and
listed below in Item 3 (unless otherwise specified under
Item 3) pursuant to the Shelf Registration Statement. The undersigned, by
signing and returning this Notice and Questionnaire, understands that it will be
bound by the terms and conditions of this Notice and Questionnaire and the
Registration Rights Agreement.
The undersigned hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
QUESTIONNAIRE
1. (a) Full Legal Name of Selling Securityholder:
-----------------------------------------------------------------------
(b) Full legal name of Registered Holder (if not the same as (a)
above) through which Registrable Securities listed in (3) below are held:
-----------------------------------------------------------------------
(c) Full legal name of broker-dealer or other third party through
which Registrable Securities listed in (3) below are held:
-----------------------------------------------------------------------
(d) Full legal name of DTC Participant (if applicable and if not
the same as (b) or (c) above) through which Registrable Securities listed in (3)
below are held:
-----------------------------------------------------------------------
2. Address for Notices to Selling Securityholder:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Telephone:
-------------------------------------------------------------
Fax:
-------------------------------------------------------------------
Contact Person
---------------------------------------------------------
3. Beneficial Ownership of Registrable Securities:
Type and Principal Amount of Registrable Securities beneficially owned:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
2
UNLESS OTHERWISE INDICATED IN THE SPACE PROVIDED BELOW, ALL REGISTRABLE
SECURITIES LISTED IN RESPONSE TO THIS ITEM (3) AS LISTED ABOVE WILL BE
INCLUDED IN THE SHELF REGISTRATION STATEMENT. IF THE UNDERSIGNED DOES
NOT WISH ALL SUCH REGISTRABLE SECURITIES TO BE SO INCLUDED, PLEASE
INDICATE BELOW THE AMOUNT OF REGISTRABLE SECURITIES TO BE INCLUDED:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
4. Beneficial Ownership of Company securities owned by the Selling
Securityholder:
EXCEPT AS SET FORTH BELOW IN THIS ITEM (4), THE UNDERSIGNED IS NOT THE
BENEFICIAL OR REGISTERED OWNER OF ANY SECURITIES OF THE COMPANY OTHER
THAN THE REGISTRABLE SECURITIES LISTED ABOVE IN ITEM (3).
Type and amount of other securities beneficially owned by the Selling
Securityholder (include CUSIP No(s). if applicable):
-----------------------------------------------------------------------
-----------------------------------------------------------------------
5. Relationship with the Company:
EXCEPT AS SET FORTH BELOW, NEITHER THE UNDERSIGNED NOR ANY OF ITS
AFFILIATES, DIRECTORS OR PRINCIPAL EQUITY HOLDERS (5% OR MORE) HAS HELD
ANY POSITION OR OFFICE OR HAS HAD ANY OTHER MATERIAL RELATIONSHIP WITH
THE COMPANY (OR ITS PREDECESSORS OR AFFILIATES) DURING THE PAST THREE
YEARS.
State any exceptions here:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
6. Plan of Distribution:
EXCEPT AS SET FORTH BELOW, THE UNDERSIGNED (INCLUDING ITS DONEES OR
PLEDGEES) INTENDS TO DISTRIBUTE THE REGISTRABLE SECURITIES LISTED ABOVE
IN ITEM (3) PURSUANT TO THE SHELF REGISTRATION STATEMENT ONLY AS
FOLLOWS (IF AT ALL): SUCH REGISTRABLE SECURITIES MAY BE SOLD FROM TIME
TO TIME DIRECTLY BY THE UNDERSIGNED OR ALTERNATIVELY THROUGH
UNDERWRITERS OR BROKER-DEALERS OR AGENTS. IF THE REGISTRABLE SECURITIES
ARE SOLD THROUGH UNDERWRITERS OR BROKER-DEALERS OR AGENTS, THE SELLING
SECURITYHOLDER WILL BE RESPONSIBLE FOR UNDERWRITING DISCOUNTS OR
COMMISSIONS OR AGENT'S COMMISSIONS. SUCH REGISTRABLE SECURITIES MAY BE
SOLD IN ONE OR MORE TRANSACTIONS AT FIXED PRICES, AT PREVAILING MARKET
3
PRICES AT THE TIME OF SALE, AT VARYING PRICES DETERMINED AT THE TIME OF
SALE, OR AT NEGOTIATED PRICES. SUCH SALES MAY BE EFFECTED IN
TRANSACTIONS (WHICH MAY INVOLVE CROSSES OR BLOCK TRANSACTIONS) (I) ON
ANY NATIONAL SECURITIES EXCHANGE OR QUOTATION SERVICE ON WHICH THE
REGISTRABLE SECURITIES MAY BE LISTED OR QUOTED AT THE TIME OF SALE,
(II) IN THE OVER-THE-COUNTER MARKET, (III) IN TRANSACTIONS OTHERWISE
THAN ON SUCH EXCHANGES OR SERVICES OR IN THE OVER-THE-COUNTER MARKET,
OR (IV) THROUGH THE WRITING OF OPTIONS. IN CONNECTION WITH SALES OF THE
REGISTRABLE SECURITIES OR OTHERWISE, THE UNDERSIGNED MAY ENTER INTO
HEDGING TRANSACTIONS WITH BROKER-DEALERS, WHICH MAY IN TURN ENGAGE IN
SHORT SALES OF THE REGISTRABLE SECURITIES, SHORT AND DELIVER
REGISTRABLE SECURITIES TO CLOSE OUT SUCH SHORT POSITIONS, OR LOAN OR
PLEDGE REGISTRABLE SECURITIES TO BROKER-DEALERS THAT IN TURN MAY SELL
SUCH SECURITIES. THE SELLING SECURITYHOLDER MAY PLEDGE OR GRANT A
SECURITY INTEREST IN SOME OR ALL OF THE REGISTRABLE SECURITIES OWNED BY
IT AND, IF IT DEFAULTS IN THE PERFORMANCE OF ITS SECURED OBLIGATIONS,
THE PLEDGEES OR SECURED PARTIES MAY OFFER AND SELL THE REGISTRABLE
SECURITIES FROM TIME TO TIME PURSUANT TO THE PROSPECTUS. THE SELLING
SECURITYHOLDER ALSO MAY TRANSFER AND DONATE SHARES IN OTHER
CIRCUMSTANCES IN WHICH CASE THE TRANSFEREES, DONEES, PLEDGEES OR OTHER
SUCCESSORS IN INTEREST WILL BE THE SELLING SECURITYHOLDER FOR PURPOSES
OF THE PROSPECTUS.
State any exceptions here:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Note: In no event will such method(s) of distribution take the form of an
underwritten offering of the Registrable Securities without the prior agreement
of the Company.
The undersigned acknowledges that it understands its obligation to
comply with the provisions of the Securities Exchange Act of 1934, as amended,
and the rules thereunder relating to stock manipulation, particularly Regulation
M thereunder (or any successor rules or regulations) and the provisions of the
Securities Act of 1933, as amended, relating to prospectus delivery, in
connection with any offering of Registrable Securities pursuant to the Shelf
Registration Statement. The undersigned agrees that neither it nor any person
acting on its behalf will engage in any transaction in violation of such
provisions.
The Selling Securityholder hereby acknowledges its obligations under
the Registration Rights Agreement to indemnify and hold harmless certain persons
set forth therein.
Pursuant to the Registration Rights Agreement, the Company has agreed
under certain circumstances to indemnify the Selling Securityholders against
liabilities.
In accordance with the undersigned's obligation under the Registration
Rights Agreement to provide such information as may be required by law for
inclusion in the Shelf Registration Statement, the undersigned agrees to
promptly notify the Company of any inaccuracies or changes in the information
provided herein that may occur subsequent to the date hereof at any time while
the Shelf Registration Statement remains effective. All notices hereunder and
4
pursuant to the Registration Rights Agreement shall be made in writing at the
address set forth below.
In the event any Selling Securityholder transfers all or any portion of
the Registrable Securities listed in Item 3 above after the date on which such
information is provided to the Company, the Selling Securityholder will notify
the transferee(s) at the time of transfer of its rights and obligations under
this Notice and Questionnaire and the Registration Rights Agreement.
By signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and the
related prospectus. The undersigned understands that such information will be
relied upon by the Company without independent investigation or inquiry in
connection with the preparation or amendment of the Shelf Registration Statement
and the related prospectus.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its authorized agent.
Beneficial Owner
By: _______________________________
Name:
Title:
Dated:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO
PXRE CORPORATION
PXRE XXXXX
000 XXXXX XXX XXXX
XXXXXXXX XX 00
XXXXXXX
XXXXXXXXX NO.: (000) 000-0000
ATTN: XXXXXXX X. XXXXX
5
