Exhibit 3
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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
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audits incident to or required by any such registration (but excluding the
compensation of regular 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
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prior to the effectiveness of the Shelf Registration 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
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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 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
intends to attempt to qualify such securities under the applicable
blue sky or other state securities laws); and
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(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:
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(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 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);
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(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.
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(vi) The Company shall, during the Shelf Registration Period or
Company Registration Period, promptly deliver to each Selling Holder and any
sales or 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.
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(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 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.
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(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;
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(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 unless the Majority
13
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, 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)
14
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 claim, action, suit or proceeding in respect of which
16
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
17
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 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
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
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
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
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
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
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
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:
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
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
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
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
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
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
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
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:
___________________________________________________________________________
___________________________________________________________________________
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 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
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
