MUTUAL RISK MANAGEMENT LTD.
WARRANT REGISTRATION RIGHTS AGREEMENT
TABLE OF CONTENTS
Page
1. Definitions..........................................................1
1.1 Other Definitions...........................................3
2. Registration Rights..................................................3
2.1 Demand Registration.........................................3
2.2 Piggyback Registration......................................5
2.3 Obligations of the Company..................................6
2.4 Furnish Information.........................................7
2.5 Expenses of Registration....................................8
2.6 Underwriting Requirements...................................8
2.7 Indemnification.............................................9
2.8 Termination of Registration Rights.........................12
2.9 "Lock-Up" Agreement........................................12
3. Miscellaneous.......................................................12
3.1 Amendments; Waivers........................................12
3.2 After-Acquired Shares......................................12
3.3 Successors and Assigns.....................................13
3.4 Rights and Obligations of Transferees......................13
3.5 Further Assurances.........................................13
3.6 Notices....................................................13
3.7 Governing Law; Waiver of Jury Trial........................15
3.8 Severability; Interpretation...............................16
3.9 Table of Contents; Headings................................16
3.10 Entire Agreement...........................................16
3.11 Counterparts...............................................16
3.12 No Third-Party Beneficiaries...............................17
(i)
WARRANT REGISTRATION RIGHTS AGREEMENT
THIS WARRANT REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
May 17, 2001, by and among Mutual Risk Management Ltd., a company organized
under the laws of Bermuda (the "Company"), and XL Insurance Ltd ("XL"), First
Union Merchant Banking 2001, LLC, High Ridge Capital Partners II, L.P., Century
Capital Partners II, L.P. and Taracay Investors Company (each, a "Purchaser"
and, collectively, the "Purchasers").
RECITALS
WHEREAS, the Company and the Purchasers are parties to that certain
securities purchase agreement dated as of May 8, 2001 (the "Securities Purchase
Agreement") pursuant to which the Purchasers and certain other purchasers have
agreed to purchase 9 3/8% convertible exchangeable debentures due 2006 of the
Company (the "MRM Debentures") in an aggregate principal amount of $112,500,000;
WHEREAS, in connection with the purchase of MRM Debentures, the Company has
agreed to issue warrants (the "Warrants") to purchase an aggregate of 2,151,943
shares of Common Stock of the Company (the Common Stock issuable upon exercise
of the Warrants being referred to herein as the "Warrant Shares") to the
Purchasers; and
WHEREAS, in order to induce the Purchasers to enter into the Securities
Purchase Agreement and to purchase the MRM Debentures, the Company and the
Purchasers desire to enter into this Agreement for the purpose, among others, of
establishing certain registration and other rights of the Holders (as defined
below);
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
1. Definitions.
(a) "Act" means the Securities Act of 1933, as amended.
(b) "Agreement" shall have the meaning set forth in the Preamble to this
Agreement.
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(c) "Business Day" shall mean any day that is not a Saturday, Sunday or a
day on which (i) commercial banks in New York City are authorized or required to
close or (ii) the New York Stock Exchange is not open for trading.
(d) "Common Stock" shall mean the common stock or common shares of the
referenced Person.
(e) "Common Stock Equivalents" shall mean securities convertible into or
exercisable or exchangeable for Common Stock of the referenced Person.
(f) "Company" shall have the meaning set forth in the Preamble to this
Agreement.
(g) "Holder" shall mean, as applicable, any Person owning or having the
right to acquire a Registrable Security from time to time.
(h) "1934 Act" shall mean the Securities Exchange Act of 1934, as amended.
(i) "Person" shall mean any individual or a corporation, company,
partnership, trust, incorporated or unincorporated association, joint venture,
joint stock company, limited liability company, government (or agency or
political subdivision thereof) or other entity of any kind.
(j) "Purchasers" shall have the meaning set forth in the Preamble to this
Agreement.
(k) "register," "registered" and "registration" shall mean a registration
effected by preparing and filing with the SEC a registration statement or
similar document in compliance with the Act, and the declaration or ordering of
effectiveness of such registration statement or document.
(l) "Registrable Securities" shall mean the Warrants and the Warrant
Shares, in each case until such time as such securities have been sold pursuant
to an effective registration statement or an applicable exemption from
registration under the Act and are no longer subject to restrictions on transfer
under the Act.
(m) "Requisite Holders" shall mean the holders of a majority of the
outstanding shares of Common Stock of the Company issued or issuable upon
exercise of the Warrants and constituting Registrable Securities.
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(n) "Rule 144" shall mean Rule 144 promulgated under the Act.
(o) "SEC" shall mean the Securities and Exchange Commission.
(p) "Securities Purchase Agreement" shall have the meaning set forth in the
Recitals to this Agreement.
(q) "Warrants" shall have the meaning set forth in the Recitals to this
Agreement.
(r) "Warrant Shares" shall have the meaning set forth in the Recitals to
this Agreement.
1.1 Other Definitions
Defined
Term in Section
---- ----------
"Demand Registration" .......................... Section 2.1(a)
"Indemnified Party".................................. Section 2.7(a)
"Indemnified Person(s)".............................. Section 2.7(b)
"Initiating Holders"................................. Section 2.1(c)
"selling security holder"............................ Section 2.6
"Violation".......................................... Section 2.7(a)
Other capitalized terms used herein and not otherwise defined herein shall have
the meanings given to such terms in the Securities Purchase Agreement.
2. Registration Rights. The Company covenants and agrees as follows:
2.1 Demand Registration.
(a) The Holders of a majority of the then outstanding Registrable
Securities shall have the right at any time to make a written request of the
Company to register and, upon the receipt of such written request, the Company
shall register under the Act the number or aggregate principal amount, as
applicable, of Registrable Securities which are the subject of such request
(each, a "Demand Registration").
(b) In connection with a Demand Registration made pursuant to Section 2.1,
the Company shall:
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(i) within ten (10) days of the receipt thereof, give written notice
of such request to all Holders of Warrants and Warrant Shares; and
(ii) file as soon as practicable, and in any event within ninety (90)
days of the receipt of such request, a registration statement under the Act
covering all Warrants or Warrant Shares, as the case may be, constituting
Registrable Securities (subject to the limitations of Section 2.1(c) and
subject to the provisions of Section 2.6), which the Holders of the
applicable Registrable Securities request to be registered, within twenty
(20) days of the mailing of such notice by the Company in accordance with
Section 3.6.
(c) If the Holders initiating a registration request pursuant to Section
2.1(a) (any such Holders, the "Initiating Holders") intend to distribute the
applicable Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Company as a part of their request made
pursuant to Section 2.1(a) and the Company shall include such information in the
applicable written notice referred to in Section 2.1(b)(i). The managing
underwriter will be selected by the majority in interest of the Initiating
Holders and shall be reasonably acceptable to the Company, or, if such
Initiating Holders so direct, the Company shall select the managing underwriter,
which shall be reasonably acceptable to the Initiating Holders. In any such
event, the right of any Holder to include such Holder's Registrable Securities
in such registration shall be conditioned upon such Holder's participation in
such underwriting and the inclusion of such Holder's Registrable Securities in
the underwriting (unless otherwise mutually agreed by a majority in interest of
the Initiating Holders and such Holder) to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall
enter into an underwriting agreement, a custody agreement and a power of
attorney, each in customary form with the underwriter or underwriters selected
for such underwriting and deliver an opinion of counsel in customary form to
such underwriter or underwriters.
(d) Notwithstanding the foregoing, if the Company shall furnish to Holders
requesting a registration statement pursuant to this Section 2.1 a certificate
signed by the president or chief executive officer of the Company stating that
in the good faith judgment of its board of directors it would be materially
adverse to the Company and its security holders for such registration statement
to be filed at that time and it is therefore essential to defer the filing of
such registration statement, or the filing of such registration statement would
materially interfere with or otherwise adversely affect in any material respect
any financing, acquisition, corporate reorganization or other material
transaction or development involving the Company, the Company shall have the
right to defer such filing for a period of not more than 90 days after receipt
of the request of the Initiating Holders; provided, however, that the Company
may utilize this right no more than once in any twelve-month period.
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(e) Notwithstanding anything else in this Agreement to the contrary, (i)
the Company shall not be obligated to effect, or to take any action to effect,
any Demand Registration pursuant to this Section 2.1 for an Initiating Holder
after the Company has effected one (1) Demand Registration pursuant to this
Section 2.1 in response to a registration request by such Initiating Holder and
such Demand Registration has been declared or ordered effective; provided,
however, that such registration remains effective under the Act until the
earlier of (x) an aggregate of 120 days after the effective date thereof or (y)
the consummation of the distribution by the Holders participating in such
registration of all of the Registrable Securities covered thereby; provided,
further, that a registration shall not constitute a Demand Registration if (A)
after such Demand Registration has become effective such registration or the
related offer, sale or distribution of Registrable Securities thereunder is
interfered with by any stop order, injunction or other order or requirement of
the SEC or other governmental agency or court for any reason not attributable to
the Initiating Holders and such interference is not thereafter eliminated or (B)
the conditions specified in the underwriting agreement, if any, entered into in
connection with such Demand Registration are not satisfied or waived (other than
any conditions, the satisfaction of which is solely within the control of the
selling Holders).
(f) A registration will not count as a Demand Registration until it has
become effective (unless the Initiating Holders withdraw the Registrable
Securities or if such failure to become effective results solely from the
failure of the Initiating Holders to fulfill an obligation or satisfy a
condition under this Agreement, in which cases such demand will count as a
Demand Registration unless the Initiating Holders agree to pay all expenses of
such registration (as described in Section 2.5)). Except as provided above, the
Company will pay all expenses in connection with any registration initiated as a
Demand Registration, whether or not it becomes effective.
2.2 Piggyback Registration.
(a) Company Shares. If the Company proposes to register any of its Common
Stock or Common Stock Equivalents under the Act in connection with the public
offering of Common Stock or Common Stock Equivalents solely for cash, then the
Company shall, at such time, promptly give each Holder of Registrable Securities
written notice of such registration setting forth the date on which the Company
proposes to file such registration statement (which date shall be no earlier
than 20 days from the date of such notice). Upon the written request of any such
Holder given within twenty (20) days after mailing of such notice by the Company
in accordance with Section 3.6, the Company shall cause to be registered under
the Act and include in the same registration statement all of the Registrable
Securities that each such Holder has requested to be registered and take any and
all other actions reasonably
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necessary under United States federal or state laws or otherwise to permit such
Holders to effect the proposed sale or other disposition of the Registrable
Securities.
2.3 Obligations of the Company. Whenever required under this Section 2 to
effect the registration of any Registrable Securities, the Company shall
promptly:
(a) prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective, and keep such registration
statement effective for a period of up to one hundred twenty (120) days or
until the distribution contemplated in the Registration Statement has been
completed; provided, however, that before filing any such registration
statement or amendments thereto, the Company will furnish to the Holders of
Registrable Securities proposed to be included in any such registration
statement copies of all such documents proposed to be filed and afford such
Holders a reasonable opportunity to comment thereon;
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of
the Act with respect to the disposition of all securities covered by such
registration statement;
(c) furnish to the Holders of Registrable Securities proposed to be
included in any such registration statement such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably
request in order to facilitate the disposition of Registrable Securities
owned by them;
(d) use its best efforts to register and qualify the securities
covered by such registration statement under the securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders;
provided, however, that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such jurisdictions;
(e) in the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement in usual and
customary form with the managing underwriter of such offering and, in
connection therewith, the applicable Company shall cooperate with the
managing underwriter and shall attend such meetings and travel to such
places to aid in the marketing of such underwritten public offering as the
underwriters may reasonably request;
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(f) notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a
result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits 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;
(g) use its best efforts to cause all such Registrable Securities
registered pursuant hereunder to be listed on each securities exchange on
which similar securities issued by the Company are then listed;
(h) provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of
such registration statement;
(i) in the event of an underwritten public offering, use its best
efforts to obtain, at the request of any Holder requesting registration of
Registrable Securities pursuant to this Section 2, (i) an opinion, dated
such date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters
in an underwritten public offering, addressed to the underwriters, if any,
and to the Holders requesting registration of Registrable Securities and
(ii) a letter, dated such date, from the independent certified public
accountants of the applicable Company, in form and substance as is
customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the
underwriters, if any, and to the Holders requesting registration of
Registrable Securities; and
(j) take such other customary and reasonable actions as the Holders of
a majority of the Registrable Securities to be included in such
registration statement or the underwriters, if any, reasonably request in
order to facilitate the distribution of such Registrable Securities.
2.4 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 2 with
respect to the Registrable Securities of any selling Holder that the Holder
shall furnish to such Company such information regarding itself, the Registrable
Securities held by it and the intended method of disposition of the Registrable
Securities as shall be reasonably required to effect the registration of such
Holder's Registrable Securities.
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2.5 Expenses of Registration. All expenses (other than underwriting
discounts and commissions) incurred in connection with registrations, filings or
qualifications pursuant to Section 2.1 or 2.2, including (without limitation)
all registration, filing and qualification fees, SEC and state "Blue Sky"
filings, printers' and accounting fees (including the cost of "cold comfort"
letters, if required), fees and disbursements of counsel for the Company and the
reasonable fees and disbursements of one counsel for the Holders of Registrable
Securities (selected by the Holders of a majority of Registrable Securities to
be registered) included in each registration made pursuant to this Agreement
shall be borne by the Company; provided, however, that the Company shall not be
required to pay for any expenses of any registration proceeding begun pursuant
to Section 2.1 if the registration request is subsequently withdrawn or the
registration statement does not become effective, in each case, in the
circumstances described in Section 2.1(f) (in which case all participating
Holders shall severally and proportionately bear such expenses), unless the
Requisite Holders agree to forfeit their right to one (1) demand registration
right pursuant to Section 2.1(f).
2.6 Underwriting Requirements. (a) In connection with any offering
involving an underwriting of Registrable Securities, the Company shall not be
required under Section 2.2 to include any Registrable Securities of a Holder in
such underwriting unless such Holder accepts the terms of the underwriting as
agreed upon between the Company and the underwriters; provided, however, that
under no circumstances will any Holder be obligated to make representations or
provide indemnities except with respect to information reasonably required to be
furnished pursuant to Section 2.4.
(b) With respect to a registration pursuant to Section 2.1, if the total
amount of securities, including Registrable Securities, requested by security
holders to be included in such offering exceeds the amount of securities that
the managing underwriters with respect to such registration determine in their
sole discretion is compatible with the success of the offering, then the Company
shall be required to include in the offering only that number of such securities
which the managing underwriters determine in their sole discretion will not
jeopardize the success of the offering (the securities so included to be
apportioned pro rata among the Holders according to the total amount of
securities entitled to be included therein owned by each such Holder or in such
other proportions as shall be mutually agreed to by such Holders); provided,
however, that in no event shall any Registrable Securities proposed to be
included in any registration be excluded from such offering if the securities of
any selling security holder other than a Holder of Registrable Securities or any
securities offered by the Company are included.
(c) With respect to a registration pursuant to Section 2.2, if the total
amount of securities, including Registrable Securities, requested by security
holders to be included in such offering exceeds the amount of securities that
the managing underwriters with
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respect to such registration determine in their sole discretion is compatible
with the success of the offering, then the Company shall be required to include
in the offering only that number of such securities which the managing
underwriters determine in their sole discretion will not jeopardize the success
of the offering (the securities so included to be apportioned pro rata among the
Company and the selling security holders, including the Registrable Securities,
according to the total amount of securities entitled to be included therein
owned by each such selling security holder or in such other proportions as shall
mutually be agreed to by such selling security holders).
2.7 Indemnification. In the event any Registrable Securities are included
in a registration statement under this Section 2:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each selling Holder, and each officer, director, employee,
affiliate and each person, if any, who controls such Holder within the
meaning of the Act or the 1934 Act (any of the foregoing persons, an
"Indemnified Party"), against any losses, claims, damages, or liabilities
(joint or several) to which they may become subject under the Act, or the
1934 Act or other federal or state securities law, insofar as such losses,
claims, damages, or liabilities (or actions in respect thereof) arise out
of or are based upon any of the following statements, omissions or
violations (collectively, a "Violation"): (i) any untrue statement or
alleged untrue statement of a material fact contained in such registration
statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required to
be stated therein, or necessary to make the statements therein not
misleading, or (iii) any violation or alleged violation by the Company of
the Act, the 1934 Act, any state securities law or any rule or regulation
promulgated under the Act, or the 1934 Act or any state securities law; and
the Company will pay to each Indemnified Party, as incurred, any legal or
other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability, or action; provided,
however, that the indemnity agreement contained in this Section 2.7(a)
shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably withheld or
delayed). Nor shall the Company be liable in any such case for any such
loss, claim, damage, liability or action to the extent that it arises out
of or is directly based upon a Violation which occurs in reliance upon and
in conformity with written information reasonably required by Section 2.4
furnished for use in connection with such registration by any Indemnified
Party, or which results from the failure of an Indemnified Party to deliver
a final, amended or supplemental prospectus furnished an
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Indemnified Party and required to be delivered if the Violation would not
have occurred if the delivery had been made.
(b) To the extent permitted by law, each selling Holder will indemnify
and hold harmless the Company, each of its directors, officers, employees
and affiliates, and each person, if any, who controls the Company within
the meaning of the Act or the 1934 Act, any other Holder selling securities
in such registration statement and any controlling person of any such other
Holder (any of the foregoing persons, an "Indemnified Person(s)"), against
any losses, claims, damages or liabilities (joint or several) to which any
of such Indemnified Persons may become subject under the Act, or the 1934
Act or other federal or state securities law, insofar as such losses,
claims, damages or liabilities (or actions in respect thereto) arise out of
or are directly based upon any Violation, in each case to the extent (and
only to the extent) that such Violation occurs in reliance upon and in
conformity with written information reasonably required by Section 2.4
furnished by such Holder for use in connection with such registration; and
each such Holder will pay, as incurred, any legal or other expenses
reasonably incurred by any such Indemnified Person in connection with
investigating or defending any such loss, claim, damage, liability, or
action; provided, however, that the indemnity agreement contained in this
Section 2.7(b) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld or delayed. Nor shall such Holder be liable in any such case for
any such loss, claim, damage, liability, or action to the extent that it
arises out of or is based upon a Violation which results from the failure
of any Indemnified Person to deliver a final, amended or supplemental
prospectus furnished to any Indemnified Person, and required to be
delivered, if the Violation would not have occurred if the delivery had
been made; provided, however, that in no event shall any indemnity under
this Section 2.7(b) exceed the gross proceeds from the offering received by
such Holder.
(c) Promptly after receipt by an indemnified party under this Section
2.7 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to
be made against any indemnifying party under this Section 2.7, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with
counsel mutually and reasonably satisfactory to the parties; provided,
however, that an indemnified party (together with all other indemnified
parties which may be represented without conflict by one counsel) shall
have the right to retain one separate counsel, reasonably acceptable to the
indemnifying party, with the reasonable fees and expenses of such
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counsel to be paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying party would
be inappropriate due to actual or potential differing interests between
such indemnified party and any other party represented by such counsel in
such proceeding. The failure to deliver written notice to the indemnifying
party within a reasonable time of the commencement of any such action, if
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this
Section 2.7, but the omission so to deliver written notice to the
indemnifying party will not relieve the indemnifying party of any liability
that the indemnifying party may have to any indemnified party otherwise
under this Section 2.7.
(d) If the indemnification provided for in this Section 2.7 is held by
a court of competent jurisdiction to be unavailable to an indemnified party
or is insufficient to hold any indemnified party harmless with respect to
any loss, liability, claim, damage, or expense referred to herein, then the
indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or
expense in such proportion as is appropriate to reflect the relative
benefits received by the indemnified party on the one hand and the
indemnifying party on the other, and the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant
equitable considerations. The relative fault of the indemnifying party and
of the indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact
or the 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.
(e) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with the underwritten public offering are in
conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control; provided, however, that any party hereto who is
adversely affected thereby has consented in writing to such provisions in
the underwriting agreement.
(f) The obligations of the Company and the Holders under this Section
2.7 shall survive the completion of any offering of Registrable Securities
in a registration statement under this Section 2, and otherwise.
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2.8 Termination of Registration Rights. This Agreement (other than the
provisions of Sections 2.7, 2.9, 3.6 and 3.7) shall terminate and be of no
further force and effect on the first date on which no Registrable Securities
are outstanding.
2.9 "Lock-Up" Agreement. The Company hereby acknowledges and agrees that
for a period of 90 days after any date upon which any Holders have made a Demand
Registration, it shall not (i) offer, pledge, announce the intention to sell,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of, directly or indirectly, in respect of any of
its debt securities or capital stock, or any securities convertible into or
exercisable or exchangeable therefor or (ii) enter into any swap, option,
future, forward or other agreement that transfers, in whole or in part, any of
the economic consequences of ownership of such securities, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of such securities, in cash or otherwise or (iii) file or cause to become
effective any registration statement under the Act other than that related
solely to a Demand Registration, in each case, other than such securities to be
sold pursuant to the Securities Purchase Agreement and other than any securities
issued pursuant to an employee benefit or employee stock option plan of the
Company.
3. Miscellaneous.
3.1 Amendments; Waivers. The provisions of this Agreement may be modified
or amended, and waivers and consents to the performance and observance of the
terms hereof may be given, only by written instrument executed and delivered by
each of the Company and the Requisite Holders; provided, however, that any
modification or amendment which adversely affects the rights of any Holder shall
require the consent of such Holder unless the modification or amendment
adversely affects the rights of all Holders in the same manner. The failure at
any time to require performance of any provision hereof shall in no way affect
the full right to require such performance at any time thereafter (unless
performance thereof has been waived in accordance with the terms hereof for all
purposes and at all times by the party to whom the benefit of such performance
is to be rendered). The waiver by any party to this Agreement of a breach of any
provision hereof shall not be taken or held to be a waiver of any succeeding
breach of such provision or any other provision or as a waiver of the provision
itself.
3.2 After-Acquired Shares. All provisions of this Agreement shall apply to
all securities and instruments (i) received by a Holder as a dividend on or
other payment made to holders of shares of capital stock of the Company, or (ii)
issued in connection with a split of shares of capital stock of the Company, or
as a result of any exchange for or reclassification of
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shares of capital stock of the Company, or a reorganization, recapitalization
consolidation or merger.
3.3 Successors and Assigns. This Agreement and all covenants and agreements
contained in this Agreement by or on behalf of the parties hereto shall bind,
and inure to the benefit of, the respective successors and permitted assigns of
the parties hereto.
3.4 Rights and Obligations of Transferees. If a Holder transfers any or all
of its Registrable Securities to any person in accordance with the terms of the
Warrants and the Securities Purchase Agreement, such person and each subsequent
transferee shall have the same rights hereunder as are given to such Holder, and
shall be subject to the same obligations as are imposed upon such Holder by the
terms hereof (and all references herein to a Holder shall include such
transferee), unless otherwise provided herein. Any such transferee shall execute
and deliver to the Company an instrument acknowledging such transferee's rights
and obligations hereunder to be consistent with this Section 3.4.
3.5 Further Assurances. (a) Subject to the terms and conditions of this
Agreement, each of the parties hereto agrees to use best efforts to take, or
cause to be taken, all action, and to do, or cause to be done, all things
necessary, proper or advisable under applicable legal requirements, to
consummate and make effective the transactions contemplated by this Agreement.
(b) If at any time after the closing any further action is necessary or
reasonably desirable to carry out the purposes of this Agreement, the parties
hereto shall take or cause to be taken all such necessary or convenient action
and execute, and deliver and file, or cause to be executed, delivered and filed,
all necessary or convenient documentation.
(c) The Company agrees that after the date of this Agreement it shall not
grant any Person registration rights other than piggyback registration rights
which are subordinate to those of the Holders hereunder with respect to any
class of equity security of the Company without the consent of the Requisite
Holders, which consent shall not be unreasonably withheld.
3.6 Notices. All notices or other communications required or permitted to
be given hereunder shall be in writing and shall be delivered by hand or sent,
postage prepaid, by registered, certified or express mail or reputable overnight
courier service and shall be deemed given when so delivered by hand, or if
mailed, three Business Days after mailing (two Business Days in the case of
express mail or overnight courier service), as follows:
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(i) If to the Company:
Mutual Risk Management Ltd.
00 Xxxxxx Xxxxxx
Xxxxxxxx XX00
Xxxxxxx
Xxxxxxxxx: Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) If to the Purchasers:
XL Insurance Ltd
c/o XL Capital Ltd.
XL Xxxxx
Xxx Xxxxxxxxxx Xxxx
Xxxxxxxx XX 00
Xxxxxxx
Xxxxxxxxx: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
First Union Merchant Banking 2001, LLC
One First Union Center - 12th Floor
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-00-
Xxxx Xxxxx Xxxxxxx Xxxxxxxx XX, X.X.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Century Capital Partners II, L.P.
c/o Century Capital Management, Inc.
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Taracay Investors Company
000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
3.7 Governing Law; Waiver of Jury Trial. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
ANY DISPUTE UNDER THIS AGREEMENT THAT IS NOT SETTLED BY MUTUAL CONSENT SHALL BE
FINALLY ADJUDICATED BY ANY FEDERAL OR STATE COURT SITTING IN THE CITY, COUNTY
AND STATE OF NEW YORK, AND THE COMPANY CONSENTS TO THE EXCLUSIVE JURISDICTION OF
SUCH COURTS (OR ANY APPELLATE COURT THEREFROM) OVER ANY SUCH DISPUTE. THE
COMPANY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL
AND NEW YORK STATE COURTS LOCATED IN NEW YORK COUNTY IN CONNECTION WITH ANY
SUIT, ACTION OR PROCEEDING RELATED TO THIS AGREEMENT OR ANY OF THE MATTERS
CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF PERSONAL
JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUIT,
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. THE COMPANY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE OF
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ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT
ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM.
3.8 Severability; Interpretation. If any provision in this Agreement is
agreed by the parties hereto to be, is deemed to be or becomes invalid, illegal,
void or unenforceable under any law that is applicable hereto, (i) such
provision will be deemed amended to conform to applicable laws so as to be valid
and enforceable or, if it cannot be so amended without materially altering the
intention of the parties hereto, it will be deleted, with effect from the date
of such agreement or such earlier date as the parties hereto may agree, and (ii)
the validity, legality and enforceability of the remaining provisions of this
Agreement shall not be impaired or affected in any way.
3.9 Table of Contents; Headings. The table of contents and section headings
herein are for convenience only and shall not affect the construction hereof.
3.10 Entire Agreement. This Agreement constitutes the entire agreement
among the parties hereto relating to the subject matter hereof and supersedes
any and all prior oral or written agreements, representations or warranties,
contracts, understandings, correspondence, conversations and memoranda, whether
written or oral, between the parties hereto, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in interest or
successors in interest, with respect to the subject matter hereof.
3.11 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more such counterparts have been signed by
each of the parties and delivered to the other party.
3.12 No Third-Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and the Holders and is not intended to confer any
benefit upon any other person or entity or infringe upon any rights or remedies,
except as contemplated in this Section 3.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Warrant
Registration Rights Agreement as of the date first above written.
MUTUAL RISK MANAGEMENT LTD.
By: /s/ Xxxxxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Secretary
XL INSURANCE LTD
By: /s/ Xxxxx Xxxxx
----------------------------------------------
Name: Xxxxx Xxxxx
Title: President & Chief Executive Officer
FIRST UNION MERCHANT BANKING 2001, LLC
By: /s/ Xxxxxxxxx X. Xxxxxx, XX
----------------------------------------------
Name: Xxxxxxxxx X. Xxxxxx, XX
Title: Partner
HIGH RIDGE CAPITAL PARTNERS II, L.P.
By: /s/ Xxxxx Xxxxx
----------------------------------------------
Name: Xxxxx Xxxxx
Title: President, Liberty Street Corp.,
as general partner of Liberty Street
Partners, LP,
as member of High Ridge XX XX LLC,
as general partner of High Ridge
Capital Partners II, L.P.
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CENTURY CAPITAL PARTNERS II, L.P.
BY: CCP CAPITAL II LLC, its general partner
By: /s/ Xxxxx Xxxxxxxxxx
----------------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Managing Member
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TARACAY INVESTORS COMPANY
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title:
