Exhibit 10.8
SHAREHOLDERS AGREEMENT dated as of August
[ ], 2002 (this "Agreement"), among Monday SCA, a
Luxembourg partnership limited by shares (societes en
commandite par actions) ("LuxCo"), Monday Ltd, a
Bermuda holding company ("BermudaCo"),
PricewaterhouseCoopers International Limited, a
private company limited by guarantee, not having a
share capital, incorporated under the laws of England
and Wales ("PwCIL") and each of the entities listed
on Schedule I hereto (collectively, the
"Shareholders").
W I T N E S S E T H
WHEREAS, PwCIL, in its capacity as coordinator of the
management and governance of the member firms of the PricewaterhouseCoopers
global network and in accordance with Section 21.2 of the Regulations of PwCIL,
has determined that the separation of the PricewaterhouseCoopers Consulting
Businesses (as hereinafter defined) is in the best interests of the global
network (the "Determination");
WHEREAS, in furtherance of the Determination, each of the
Shareholders has agreed to contribute, transfer and assign and cause to be
contributed, transferred and assigned, to a wholly owned subsidiary ("Sub")
certain of the assets, properties and liabilities primarily related to its
Consulting Business (the "Local Transaction");
WHEREAS, each Shareholder will exchange all of the equity
interests of Sub for LuxCo Shares, BermudaCo Shares or Exchangeable Shares (each
as hereinafter defined) (the "Exchange");
WHEREAS, pursuant to the terms of the Rollup Agreement (as
hereinafter defined), it is a condition precedent to the Exchange that the
Shareholders execute this Agreement; and
WHEREAS, LuxCo, BermudaCo, PwCIL and the Shareholders have
determined that it is in the mutual best interests of each of them to set forth
certain agreements and understandings among them.
NOW THEREFORE, in consideration of the premises and the
covenants and agreements contained herein, the parties hereto agree as follows:
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ARTICLE I
Definitions
SECTION 1.01. Definition of Certain Terms Used Herein. As used
herein, the following terms shall have meanings specified below:
"Acts" shall mean the Exchange Act and the Securities Act.
"Affiliate" shall have the meaning assigned to such term in
the Rollup Agreement.
"Agent" shall mean the principal placement agent on an agented
placement of Restricted Shares.
"Agreement" shall mean this Shareholders Agreement.
"Anniversary Year" shall mean each year that starts on, and
ends on the subsequent, anniversary date of the Effective Date.
"BermudaCo" shall have the meaning assigned to such term in
the introductory paragraph of this Agreement.
"BermudaCo Change of Control Event" shall mean:
(a) a sale or transfer of all or substantially all of the
assets and business of BermudaCo on a consolidated basis in any transaction or
series of related transactions to a Person that is not an Affiliate of BermudaCo
prior to such sale or transfer for so long as such Person is not an Affiliate of
BermudaCo (provided that in the event of such a sale or transfer to an Affiliate
of BermudaCo, such Affiliate promptly executes a signature page to this
Agreement agreeing to be bound to the terms hereof to the extent BermudaCo is so
bound); or
(b) any merger, consolidation or reorganization to which
BermudaCo is a party, except for a merger, consolidation or reorganization in
which BermudaCo is the surviving corporation and, after giving effect to such
merger, consolidation or reorganization, the holders of BermudaCo's outstanding
equity (on a fully diluted basis) immediately prior to the merger, consolidation
or reorganization will own in the aggregate immediately following the merger,
consolidation or reorganization BermudaCo's outstanding equity (on a fully
diluted basis) either (i) having the ordinary voting power to elect a majority
of the members of BermudaCo's Board of Directors to be elected by the holders of
Shares and any other class which votes together with the Shares
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as a single class or (ii) representing at least 50% of the equity value of
BermudaCo as reasonably determined by the Board of Directors of BermudaCo; or
(c) individuals who, as of the date hereof, constitute the
Board of Directors of BermudaCo (the "Incumbent Board") cease for any reason to
constitute at least a majority of such Board; provided, however, that any
individual who becomes a director of BermudaCo subsequent to the date hereof
whose election, or nomination for election by the holders of BermudaCo's equity,
was approved by the vote of at least a majority of the directors then comprising
the Incumbent Board shall be deemed to have been a member of the Incumbent
Board; and provided further, that no individual who was initially elected as a
director of BermudaCo as a result of an actual or threatened election contest,
as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act, or any other actual or threatened solicitation of proxies or
consents by or on behalf of any Person other than the Board shall be deemed to
have been a member of the Incumbent Board; or
(d) any person or group (as defined under Section 13(d) of the
Exchange Act), other than the Shareholders or their Affiliates and other than
officers, directors or employees of BermudaCo or LuxCo or their Affiliates,
acquires beneficial ownership of 30% or more of the outstanding equity of
BermudaCo generally entitled to vote on the election of directors.
"BermudaCo Shares" shall mean the Class A common shares of
BermudaCo and with respect to any Shareholder, the Class A common shares of
BermudaCo owned by such Shareholder or a Subsidiary Holder, including any such
Class A common shares of BermudaCo acquired by the Shareholder or any Subsidiary
Holder after the date of this Agreement.
"Business Day" shall have the meaning assigned to such term in
the Rollup Agreement.
"Consulting Business" shall have the meaning assigned to such
term in the Rollup Agreement.
"Continuously Effective" with respect to a specified
registration statement, shall mean that it shall not cease to be effective and
available for Transfers of BermudaCo Shares in respect of Restricted Shares
thereunder for longer than either (i) any ten (10) consecutive Business Days, or
(ii) an aggregate of fifteen (15) Business Days during the period specified in
the relevant provision of this Agreement.
"Control" shall have the meaning assigned to such term in the
Rollup Agreement.
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"Cumulative Sales Amount" shall have the meaning assigned to
such term in Section 3.09(a)(i).
"Delay Period" shall have the meaning assigned to such term in
Section 4.01(a)(iii).
"Disposed" shall have the meaning assigned to such term in
Section 3.09(b).
"Effective Date" shall mean the date on which the IPO is
consummated.
"Effectiveness Period" shall have the meaning assigned to such
term in Section 4.01(a)(iii).
"Eligible Date" shall mean the date on which BermudaCo becomes
eligible to use Form S-3 (or any replacement or successor form) under the
Securities Act for any Registration.
"Exchange" shall have the meaning assigned to such term in the
recitals to this Agreement.
"Exchange Act" shall have the meaning assigned to such term in
the Rollup Agreement.
"Exchangeable Shares" shall have the meaning assigned to such
term in the Rollup Agreement.
"Holdback Period" shall have the meaning assigned to such term
in Section 4.01(a)(iii).
"Holders" shall mean the Shareholders and transferees of the
Shareholders' Restricted Shares with respect to the rights that such transferees
shall have acquired in accordance with Section 7.06, at such times as such
Persons shall own Restricted Shares.
"Independence Conflict" shall be deemed to exist in the event
that, in order to comply with the Independence Rules, it is necessary (in the
opinion of U.S. legal counsel to any Shareholder or PwCIL) that any or all of
the Shareholders divest some or all of their Restricted Shares.
"Independence Rules" shall mean (i) the auditor independence
rules as established by the American Institute of Certified Public Accountants,
the SEC, the Independence Standards Board, the state boards of accountancy and
any other duly
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constituted regulatory authority, as the same may be amended from time to time
and (ii) the terms and conditions contained in the No-Action Letter.
"Interruption Period" shall have the meaning assigned to such
term in Section 4.04(c).
"Involuntary Transfer" shall mean any Transfer pursuant to the
laws of descent, inheritance, bankruptcy or insolvency, as a result of the
dissolution of marriage, due to the execution of a lien or other judgment or
other transfer by operation of law.
"IPO" shall have the meaning assigned to such term in the
Rollup Agreement.
"Largest Holders" shall have the meaning assigned to such term
in Section 4.01(a)(i).
"Local Transactions" shall have the meaning assigned to such
term in the recitals to this Agreement.
"LuxCo" shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.
"LuxCo Change of Control Event" shall mean:
(a) a sale or transfer of all or substantially all of the
assets and business of LuxCo on a consolidated basis in any transaction or
series of related transactions to a Person that is not an Affiliate of LuxCo
prior to such sale or transfer for so long as such Person is not an Affiliate of
LuxCo (provided that in the event of such a sale or transfer to an Affiliate of
LuxCo, such Affiliate promptly executes a signature page to this Agreement
agreeing to be bound to the terms hereof to extent LuxCo is so bound); or
(b) any merger, consolidation or reorganization to which LuxCo
is a party, except for a merger, consolidation or reorganization in which LuxCo
is the surviving corporation and, after giving effect to such merger,
consolidation or reorganization, the holders of LuxCo's outstanding equity (on a
fully diluted basis) immediately prior to the merger, consolidation or
reorganization will own in the aggregate immediately following the merger,
consolidation or reorganization LuxCo's outstanding equity (on a fully diluted
basis) either (i) having the ordinary voting power to elect a majority of the
members of LuxCo's Supervisory Board to be elected by the holders of LuxCo
Shares and any other class which votes together with the LuxCo Shares as a
single class or (ii) representing at least 50% of the equity value of LuxCo as
reasonably determined by the Supervisory Board of LuxCo; or
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(c) individuals who, as of the date hereof, constitute the
Supervisory Board of LuxCo (the "LuxCo Incumbent Board") cease for any reason to
constitute at least a majority of such Supervisory Board; provided, however,
that any individual who becomes a director of LuxCo subsequent to the date
hereof whose election, or nomination for election by the holders of LuxCo's
equity, was approved by the vote of at least a majority of the directors then
comprising the LuxCo Incumbent Board shall be deemed to have been a member of
the LuxCo Incumbent Board; and provided further, that no individual who was
initially elected as a director of LuxCo as a result of an actual or threatened
election contest, as such terms are used in Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act, or any other actual or threatened
solicitation of proxies or consents by or on behalf of any Person other than the
Supervisory Board shall be deemed to have been a member of the LuxCo Incumbent
Board; or
(d) any person or group (as defined under Section 13(d) of the
Exchange Act), other than the Shareholders or their Affiliates and other than
officers, directors or employees of BermudaCo, LuxCo or their Affiliates
acquires beneficial ownership of 30% or more of the outstanding equity of LuxCo
generally entitled to vote on the election of directors.
"LuxCo Shares" shall mean the Class I common shares of LuxCo,
and, with respect to any Shareholder, the Class I common shares of LuxCo owned
by such Shareholder or any Subsidiary Holder, including any such Class I common
shares of LuxCo acquired by such Shareholder or any Subsidiary Holder after the
date of this Agreement.
"No-Action Letter" shall have the meaning assigned to such
term in the Rollup Agreement.
"Notification" shall mean all notices permitted or required to
be given to any Person hereunder.
"Partner" shall have the meaning assigned to such term in the
Rollup Agreement.
"Person" shall mean an individual, corporation, partnership,
limited liability company, unincorporated syndicate, unincorporated
organization, entity, trust, trustee, executor, administrator or other legal
representative, governmental authority or agency, or any group of Persons acting
in concert.
"Piggyback Registration" shall have the meaning assigned in
such term in Section 4.02(a).
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"Projected Disposal Amount" shall have the meaning assigned to
such term in Section 3.09(a)(ii).
"PwCIL" shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.
"Register, Registered and Registration" shall refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act, and the declaration or
ordering by the SEC of effectiveness of such registration statement or document.
"Register Date" shall have the meaning assigned to such term
in Section 3.09(a).
"Registration Expenses" shall have the meaning assigned to
such term in Section 4.05(a).
"Repurchase Price" shall mean, as of any date of
determination, the average of the per share closing prices of BermudaCo Shares
on a national securities exchange or automatic quotation system (including the
Nasdaq Stock Market) on the five trading days immediately preceding such date of
determination or, if the BermudaCo Shares are not listed for trading on any such
national securities exchange or quotation system, as of any date of
determination, the fair market value of BermudaCo Shares (as determined in good
faith by the Board of Directors of BermudaCo).
"Restricted Share Registration" shall have the meaning
assigned to such term in Section 4.01(a)(i).
"Restricted Shares" shall mean (i) any LuxCo Shares held by
any Shareholder or its Subsidiaries, any BermudaCo Shares held by any
Shareholder or its Subsidiaries and any Exchangeable Shares held by any
Shareholder or its Subsidiaries, (ii) any securities issued as (or issuable upon
the conversion or exercise of any warrant, right or other security which is
issued as) a dividend or other distribution with respect to, or in exchange by
BermudaCo or its Subsidiaries generally for, or in replacement by BermudaCo or
its Subsidiaries generally of, such LuxCo Shares, BermudaCo Shares or
Exchangeable Shares and (iii) any securities issued in exchange for such LuxCo
Shares, BermudaCo Shares or Exchangeable Shares (or other securities identified
in (ii)) in any merger or reorganization of BermudaCo or its Subsidiaries;
provided, however, that Restricted Shares shall not include any securities which
have theretofore been registered and sold pursuant to the Securities Act or
which have been sold to the public pursuant to Rule 144 or any similar rule
promulgated by the SEC pursuant to the Securities Act; provided further, that
for purposes of this Agreement, a Person will be deemed to be a Holder of
Restricted Shares whenever such Person has the then-existing right to acquire
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such Restricted Shares (by conversion, purchase or otherwise), whether or not
such acquisition has actually been effected; and, provided further, that LuxCo
Shares, BermudaCo Shares and Exchangeable Shares (x) held by Partners or
employees of the Shareholders and their Subsidiaries that are freely
transferable under the Securities Act or (y) acquired by such Partners or
employees in the open market shall not, in each case, be deemed to be Restricted
Shares.
"Restricted Shares then outstanding" shall mean, with respect
to a specified determination date, the Restricted Shares owned by all Holders on
such date.
"Revocation Date" shall mean, for each LuxCo Share, BermudaCo
or Exchangeable Share, the date on which a Shareholder transfers such share to a
party other than a party hereto.
"Rollup Agreement" shall mean collectively the several rollup
agreements among each Shareholder, PwCIL and BermudaCo or LuxCo dated as of
April 11, 2002.
"Rollup Transaction" shall have the meaning assigned to such
term in the Rollup Agreement.
"SEC" shall have the meaning assigned to such term in the
Rollup Agreement.
"Securities Act" shall have the meaning assigned to such term
in the Rollup Agreement.
"Selling Holders" shall mean, with respect to a specified
Registration pursuant to this Agreement, Holders whose Restricted Shares (or
BermudaCo Shares in respect thereof) are included in such Registration.
"Shareholders" shall have the meaning assigned to such term in
the introductory paragraph of this Agreement.
"Share Register" shall have the meaning assigned to such term
in Section 3.08.
"Shares" shall mean LuxCo Shares, BermudaCo Shares and
Exchangeable Shares.
"Shelf Registration" shall have the meaning assigned to such
term in Section 4.01(b).
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"Sub" shall have the meaning assigned to such term in the
recitals to this Agreement.
"Subsidiary" shall have the meaning assigned to such term in
the Rollup Agreement.
"Subsidiary Holder" shall mean any Affiliate of a Shareholder
which has beneficial ownership of any of the Shares while this Agreement is in
effect and has executed a counterpart hereto in accordance with Section 7.06
hereof.
"Target Share Amount" shall have the meaning assigned to such
term in Section 3.09(a).
"Transaction Agreements" shall have the meaning assigned to
such term in the Rollup Agreement.
"Transfer" shall have the meaning assigned to such term in
Section 3.01.
"Underwriters' Representative" shall mean the managing
underwriter, or, in the case of a co-managed underwriting, the managing
underwriter designated as the Underwriters' Representative by the co-managers.
"Underwriting Agreement" shall have the meaning assigned to
such term in the Rollup Agreement.
"Violation" shall have the meaning assigned to such term in
Section 4.06(a).
SECTION 1.02. Usage. The definitions in this Article I shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. All references in this Agreement to
Articles, Sections and Exhibits shall be deemed to be references to Articles,
Sections and Exhibits of or to this Agreement, unless the context shall
otherwise require. The words "include", "includes" and "including" shall be
deemed to be followed by the phrase "without limitation", regardless of whether
such phrase so appears.
ARTICLE II
Representations and Warranties
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SECTION 2.01. Representations and Warranties of LuxCo. LuxCo
hereby represents and warrants to PwCIL and each Shareholder that it is a
partnership limited by shares (societes en commandite par actions) duly
organized and validly existing under the laws of Luxembourg and has all
requisite corporate power and authority to execute and deliver this Agreement,
to carry out the provisions hereof and to perform its obligations hereunder. The
execution, delivery and performance by LuxCo of its obligations under this
Agreement and the consummation by it of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the part of
LuxCo. This Agreement has been duly and validly executed and delivered by LuxCo
and constitutes a legal, valid and binding obligation of LuxCo, enforceable
against it in accordance with its terms (subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and other similar
laws affecting creditors' rights generally from time to time in effect and to
general principles of equity, including concepts of materiality, reasonableness,
good faith and fair dealing regardless of whether considered in a proceeding in
equity or at law).
SECTION 2.02. Representations and Warranties of BermudaCo.
BermudaCo hereby represents and warrants to PwCIL and each Shareholder that it
is a holding company duly organized and validly existing under the laws of
Bermuda and has all requisite corporate power and authority to execute and
deliver this Agreement, to carry out the provisions hereof and to perform its
obligations hereunder. The execution, delivery and performance by BermudaCo of
its obligations under this Agreement and the consummation by it of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of BermudaCo. This Agreement has been duly and
validly executed and delivered by BermudaCo and constitutes a legal, valid and
binding obligation of BermudaCo, enforceable against it in accordance with its
terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws affecting creditors' rights generally
from time to time in effect and to general principles of equity, including
concepts of materiality, reasonableness, good faith and fair dealing regardless
of whether considered in a proceeding in equity or at law).
SECTION 2.03. Representations and Warranties of the
Shareholders. (a) Each Shareholder hereby represents and warrants to BermudaCo,
LuxCo and PwCIL that it has all requisite power and authority to execute this
Agreement, to carry out the provisions hereof and to perform its obligations
hereunder. The execution, delivery and performance by each Shareholder of its
obligations under this Agreement and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary corporate or
other action. This Agreement has been duly and validly executed and delivered by
each such Shareholder and constitutes the legal, valid and binding obligation of
such Shareholder, enforceable against it in accordance with its terms (subject
to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and other similar laws affecting creditors' rights generally from time
to
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time in effect and to general principles of equity, including concepts of
materiality, reasonableness, good faith and fair dealing regardless of whether
considered in a proceeding in equity or at law).
(b) Each Shareholder that holds BermudaCo Shares, LuxCo Shares
or Exchangeable Shares on behalf of any Partner hereby represents and warrants
to BermudaCo, LuxCo and PwCIL that such Shareholder is an "accredited investor"
within the meaning of Rule 501(a) under the Securities Act. Such Shareholder has
such knowledge and experience in financial and business matters such that it is
capable of evaluating the merits and risks of the IPO and the other transactions
contemplated hereby. Such Shareholder is able to fend for itself, is able to
bear the economic risk of holding the Shares for an indefinite period of time
and to suffer a complete loss of the value of the Shares. Such Shareholder
acknowledges that it has received all the information it considers necessary or
appropriate for deciding whether to participate in the IPO and the other
transactions contemplated hereby.
SECTION 2.04. Representations and Warranties of PwCIL. PwCIL
hereby represents and warrants to LuxCo, BermudaCo and each Shareholder that it
is a private company limited by guarantee, not having share capital, duly
organized and validly existing under the laws of England and Wales and has all
requisite corporate power and authority to execute and deliver this Agreement,
to carry out the provisions hereof and to perform its obligations hereunder. The
execution, delivery and performance by PwCIL of its obligations under this
Agreement and the consummation by it of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the part of
PwCIL. This Agreement has been duly and validly executed and delivered by PwCIL
and constitutes the legal, valid and binding obligation of PwCIL, enforceable
against it in accordance with its terms (subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and other similar
laws affecting creditors' rights generally from time to time in effect and to
general principles of equity, including concepts of materiality, reasonableness,
good faith and fair dealing regardless of whether considered in a proceeding in
equity or at law).
ARTICLE III
Share Transfer Restrictions and Coordination of Sales
SECTION 3.01. Transfer Restrictions. (a) Except in the case of
an Involuntary Transfer in accordance with Section 3.01(b) and except as
otherwise expressly permitted by this Agreement, no Shareholder may sell,
transfer or otherwise dispose of, hypothecate or pledge (voluntarily or
involuntarily) (any such sale, transfer, disposition, hypothecation or pledge
being referred to as a "Transfer") any Restricted Shares.
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(b) In the event of an Involuntary Transfer of some or all of
a Shareholder's (or the Shareholder's estate or successor in interest)
Restricted Shares at a time when such Restricted Shares are subject to the
restrictions on Transfer imposed by this Agreement:
(i) the Shareholder (or the Shareholder's estate or successor
in interest) shall immediately furnish to BermudaCo a Notification of
such Involuntary Transfer at least 30 days prior to the effective date
of the Involuntary Transfer; and
(ii) for a period of 20 days commencing on the date of its
receipt of a Notification, or, if BermudaCo shall not receive a
Notification, for a period of 20 days commencing on the date on which
BermudaCo becomes aware of a pending or already effected Involuntary
Transfer, BermudaCo shall have the exclusive right, but not the
obligation, to purchase (or to cause any Subsidiary of BermudaCo to
purchase) some or all of the Restricted Shares that are the subject of
the Involuntary Transfer. If BermudaCo desires to purchase (or to cause
any Subsidiary of BermudaCo to purchase) any or all of such Restricted
Shares, it will provide Notification of such desire to the Shareholder
(or the Shareholder's estate or successor in interest) within such 20
day period, and the purchase price shall equal the Repurchase Price
determined as of the date of the Notification to the Shareholder (or
the Shareholder's estate or successor in interest).
(c) The closing of any purchase by BermudaCo (or any
Subsidiary of BermudaCo) of any Restricted Shares as provided in Section 3.01(b)
shall take place on such date as designated by BermudaCo occurring within 15
days after receipt by the Shareholder (or the Shareholder's estate or successor
in interest) of Notification from BermudaCo of the exercise of BermudaCo's (or
such Subsidiary's, as applicable) right to purchase hereunder. At the closing of
any purchase of Restricted Shares, the Shareholder (or the Shareholder's estate
or successor in interest) shall transfer, assign and deliver, or cause to be
transferred, assigned and delivered to BermudaCo (or such Subsidiary, as
applicable) any certificates or other evidence representing Restricted Shares
being purchased, duly endorsed or accompanied by transfer powers duly executed
by the Shareholder (or the Shareholder's estate or successor in interest) or its
duly appointed legal representative or authorized agent with such signature
thereon duly guaranteed. Upon the delivery of and payment for any Restricted
Shares as contemplated in this Agreement, BermudaCo (or such Subsidiary, as
applicable) shall receive good title to such Restricted Shares free and clear of
any lien, claim, equity or encumbrance of any nature whatsoever. Upon request by
BermudaCo, the Shareholder (or the Shareholder's estate or successor in
interest) shall deliver an opinion of counsel, reasonably acceptable to
BermudaCo, as to the matters contained in the preceding sentence and as to such
other matters as BermudaCo may reasonably request.
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(d) If, after compliance with the foregoing provisions of
Section 3.01(b), BermudaCo or any Subsidiary of BermudaCo fails to purchase any
of the Restricted Shares subject to Involuntary Transfer, then the Involuntary
Transfer of such unpurchased Restricted Shares may occur; provided, however that
any such Transfer shall be null and void unless such Transfer complies in full
with Section 3.02(c).
(e) If any of the Restricted Shares are Transferred pursuant
to Section 3.01(d), the Shareholder (or the Shareholder's estate or successor in
interest) shall be responsible for compliance with all conditions of Transfer
imposed by this Agreement and under applicable law and for any expenses incurred
by BermudaCo or any of its Affiliates for legal and/or accounting services in
connection with reviewing any proposed Transfer or issuing opinions in
connection therewith.
(f) A Shareholder that is not a Partner (or holding Shares on
behalf of any Partner) may Transfer some or all of such Shareholder's Restricted
Shares to one or more Partners of such Shareholder at a time when such
Restricted Shares are subject to the restrictions on Transfer imposed by this
Agreement provided:
(i) the Shareholder shall immediately furnish to BermudaCo a
Notification of such Transfer at least 30 days prior to the effective
date of the Transfer; and
(ii) on or prior to the effective date of the Transfer, each
Partner of the Shareholder receiving Restricted Shares in the Transfer
shall execute a custodial agreement substantially in the form of
Exhibit A hereto with a custodian reasonably acceptable to PwCIL.
SECTION 3.02. General Provisions. (a) Any purported Transfer
of Restricted Shares in violation of the provisions of this Agreement or the
Acts shall be wholly void and shall not effectuate the Transfer contemplated
thereby.
(b) In the event a Shareholder Transfers Restricted Shares
other than to its Partners or pursuant to an effective registration statement
under the Securities Act, that Shareholder shall, upon the request of BermudaCo,
provide BermudaCo with a written opinion of counsel reasonably acceptable to
BermudaCo, that the Transfer is in full compliance with this Agreement and the
Acts.
(c) Any purported Transfer pursuant to Section 3.01 (other
than paragraph (f) thereof) shall be wholly void and shall not effectuate the
Transfer contemplated thereby unless, prior to the consummation thereof, the
transferee agrees in writing in a form reasonably acceptable to BermudaCo to be
bound by the restrictions set forth in this Article III and Article V and makes
the representations and warranties set forth in Section 2.03.
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SECTION 3.03. Change of Control Events. In the event of a
LuxCo Change of Control Event or BermudaCo Change of Control Event that has not
been approved or ratified by a majority of the LuxCo Incumbent Board or the
Incumbent Board (as the case may be), the transfer restrictions set forth in
Section 3.01 shall no longer apply to any Restricted Shares.
SECTION 3.04. Certain Transfers. Notwithstanding any provision
herein to the contrary, Shareholders may make any Transfer required pursuant to
Section 5.01 without complying with the provisions of this Article III.
SECTION 3.05. Certain Actions. Each Shareholder agrees that it
shall, and shall cause its subsidiaries and Affiliates to, take all action as a
shareholder of BermudaCo, LuxCo or any of its Subsidiaries, as the case may be,
or as is otherwise within its control as are necessary to give effect to the
provisions of this Agreement and to perform, pay and satisfy all of its
obligations and liabilities hereunder as and when due.
SECTION 3.06. Partner Restrictions. (a) Prior to the first
anniversary of the Effective Date, Shareholders that are Partners (whether
holding Shares directly or through a custodian) may not Transfer Shares held by
them (whether or not such Shares are Restricted Shares) except as permitted
pursuant to the terms of this Agreement. From the period of time commencing on
the first anniversary of the Effective Date and continuing until the second
anniversary of the Effective Date, such Partners may sell BermudaCo Shares in
respect thereof (in addition to any sales made pursuant to a registration
statement) subject to the following restrictions:
(i) each such Partner may make only one sale per each
three-month period, commencing on the first anniversary of the
Effective Date, and
(ii) the maximum number of BermudaCo Shares which may be sold
in any one sale is 10% of the aggregate number of Shares then held by
such Partner.
(b) Any Person acting as custodian of Shares on behalf of
Partners of the member firms of the PricewaterhouseCoopers global network
(including any custodian appointed pursuant to a custodial agreement executed by
Partners of the Shareholders pursuant to Section 3.01(f)(ii)) hereby agrees that
it shall not Transfer any BermudaCo Shares in such capacity in violation of the
provisions of this Section 3.06 or otherwise in violation of this Agreement.
(c) Until the one year anniversary of the Effective Date,
Shareholders that are holders of LuxCo Shares shall not exercise their rights of
redemption or exchange of such shares for BermudaCo Shares; provided, however,
that PwCIL can compel an exchange during such period pursuant to Section 3.09.
15
SECTION 3.07. Lock-Up Restrictions. In addition to the
restrictions listed in this Article III and subject to the terms of the
No-Action Letter, the Shareholders agree to comply with the lock-up restrictions
described in the Underwriting Agreement.
SECTION 3.08. Share Register. Each Shareholder that is not a
Partner shall maintain a register (the "Share Register") of its current holdings
of Shares and the current holdings of Shares by its Partners. The Share Register
shall include the aggregate number and class of the Restricted Shares held by
the Partners of that Shareholder as well as the aggregate number of freely
transferable Shares held by such Partners.
SECTION 3.09. Coordination of Sales. (a) On January 10 of each
year (the "Register Date"), each Shareholder that is not a Partner shall submit
a written statement to PwCIL setting forth the number of Restricted Shares held
by such Shareholder and by such Shareholder's Partners at such time as well as a
current copy of such Shareholder's Share Register as of such date. Within 10
Business Days of the Register Date, PwCIL shall inform each Shareholder of the
minimum number of Restricted Shares it must include for sale (the "Target Share
Amount") in the next Registration by BermudaCo. PwCIL shall determine the Target
Share Amount for such Shareholders in the following manner:
(i) If the aggregate number of Restricted Shares previously
Disposed by the Shareholders at a given Register Date is equal to or
greater than the Cumulative Sales Amount as of such Register Date, the
Target Share Amount shall be zero for all Shareholders. The "Cumulative
Sales Amount" as of any date shall equal the product of (x) the
cumulative aggregate number of Restricted Shares then issued to the
Shareholders, (y) 0.2 and (z) the number of Anniversary Years elapsed
from the Effective Date (rounded up to the next whole number).
(ii) If the aggregate number of Restricted Shares previously
Disposed by the Shareholders at a given Register Date is less than the
Cumulative Sales Amount, the aggregate Target Share Amounts for the
Shareholders shall be equal to such difference. The Target Share Amount
for each Shareholder will be calculated by subtracting the number of
Restricted Shares it has previously Disposed of from its Projected
Disposal Amount. "Projected Disposal Amount" shall equal the product of
(x) the cumulative aggregate number of Restricted Shares issued to such
Shareholder, (y) 0.2 and (z) the number of years elapsed from the
Effective Date (rounded up to the next whole number). The Target Share
Amount for each Shareholder shall be adjusted pro rata so that the
aggregate Target Share Amounts of all Shareholders do not exceed the
Cumulative Sales Amount.
(iii) Notwithstanding the foregoing, (i) by supermajority vote
of 75% of the Board of PwCIL, (ii) at any time a Shareholder holds less
than 1% of the Restricted Shares then held by all Shareholders and
(iii) in the event of an Independence
16
Conflict, PwCIL may compel a Shareholder to dispose of any or all of its
Restricted Shares in the next Registration (with all such Restricted
Shares being deemed to be a part of the Target Share Amount with respect
to such Shareholder).
(b) Each Shareholder may reduce its Target Share Amount to the
extent that it transfers Restricted Shares to its Partners; provided, that such
Restricted Shares shall be deemed to have been Disposed. Shareholders shall be
deemed to have disposed ("Disposed") of Restricted Shares when they have (i)
sold such Restricted Shares to third parties pursuant to Rule 144 of the
Securities Act or an effective registration statement or (ii) transferred their
Restricted Shares to their Partners, provided, however, that such Restricted
Shares transferred to Partners are freely transferable under the Securities Act
and are free from any contractual restrictions, and all other requirements of
the No-Action Letter are met such that the ownership of the Restricted Shares so
transferred are no longer attributable to PwCIL or any firm in the
PricewaterhouseCoopers global networks of firms pursuant to the terms of the
No-Action Letter.
ARTICLE IV
Registration Rights
SECTION 4.01. Restricted Share Registrations. (a)(i) One time
per year and, additionally, upon the occurrence of an Independence Conflict,
during the five consecutive Anniversary Years following the Effective Date,
BermudaCo shall file a registration statement meeting the requirements of the
Securities Act (a "Restricted Share Registration") for the offering of BermudaCo
Shares which are Restricted Shares or for which Restricted Shares may be
redeemed or exchanged, and each Holder shall be entitled to have included
therein (subject to paragraph (f) below) all or such number of BermudaCo Shares
in respect of the Restricted Shares held by such Holder as such Holder shall
request pursuant to paragraph (ii) below, provided, however, that such offering
shall have no less than the minimum number of BermudaCo Shares necessary to
Register the Target Share Amounts of all Holders. The timing of the filing of
the registration statement in each Anniversary Year will be as agreed to by the
then three largest Holders (as determined by the aggregate amount of each
Holder's Restricted Shares then outstanding) (the "Largest Holders") or, in the
event of an Independence Conflict, by a majority of the Board of PwCIL. If such
Largest Holders cannot agree on the timing of a Restricted Share Registration by
January 20 of any Anniversary Year, the decision as to timing will be made by a
majority of the Board of PwCIL at the next regularly scheduled meeting of its
Board, but in no event later than March 1st of such Anniversary Year. It is
understood that in the event that, in any Anniversary Year, a registration
statement in respect of a Restricted Share Registration is filed but not
subsequently declared effective, BermudaCo's obligation under this paragraph to
file for such Anniversary Year shall not be deemed to have been satisfied.
17
(ii) The Board of PwCIL or the Largest Holders, as the case
may be, shall give BermudaCo notice of a decision pursuant to Section 4.01(a)(i)
as to the timing of a Restricted Share Registration within 10 days of such a
decision, BermudaCo shall give written notice of such Registration to all
Holders within 10 days of receipt of such notice. Subject to Section 4.01(f),
within 20 days after receipt of BermudaCo's notice, any Holder may request in
writing that all of the BermudaCo Shares in respect of such Holders' Restricted
Shares, or any portion thereof designated by such Holder, be included in the
Restricted Share Registration. Any request made pursuant to this Section
4.01(a)(ii) shall be addressed to the attention of the Secretary of BermudaCo,
and shall specify the number of BermudaCo Shares in respect of Restricted Shares
requested to be registered, the intended methods of disposition thereof and that
the request is for a Restricted Share Registration pursuant to Section 4.01(a).
(iii) BermudaCo shall be entitled to postpone the filing of
any Registration otherwise required to be prepared and filed by BermudaCo, or
suspend the use of any effective registration statement, for a reasonable period
of time, but not in excess of 90 days (the "Delay Period"), if the chief
executive officer or the chief financial officer of BermudaCo determines that in
such executive officer's reasonable judgment and good faith the registration and
distribution of the Restricted Shares covered or to be covered by such
registration statement would materially interfere with any pending material
financing, acquisition or corporate reorganization or other material development
involving BermudaCo or any of its Subsidiaries or would require premature
disclosure thereof and promptly gives the Holders notice of such determination,
including a general statement of the reasons for such postponement and an
approximation of the period of the anticipated delay; provided, however, that
(i) the aggregate number of days included in all Delay Periods during any
consecutive 12 months shall not exceed the aggregate of (x) 120 days minus (y)
the number of days occurring in all periods in which the underwriters have "held
back" the effectiveness of a registration statement covering Restricted Shares
(a "Holdback Period") and Interruption Periods during such consecutive 12 months
and (ii) a period of at least 60 days shall elapse between the termination of
any Delay Period, Hold Back Period or Interruption Period and the commencement
of the immediately succeeding Delay Period. If BermudaCo shall so postpone the
filing of a Registration Statement, the Holders of Restricted Shares to be
registered shall have the right to withdraw the request for registration by
giving written notice from the Holders of a majority of the Restricted Shares
that were to be registered to BermudaCo within 45 days after receipt of the
notice of postponement or, if earlier, the termination of such Delay Period
(and, in the event of such withdrawal, such request shall not be counted for
purposes of determining the whether a Restricted Share Registration to which the
Holders of Restricted Shares are entitled has occurred in a given year). The
time period for which BermudaCo is required to maintain the effectiveness of any
registration statement shall be extended by the aggregate number of days of all
Delay Periods, all Hold Back Periods and all Interruption Periods occurring
during such period and any extension thereof is hereinafter referred to as
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the "Effectiveness Period." The Company shall not be entitled to initiate a
Delay Period unless it shall (A) to the extent permitted by agreements with
other Holders of BermudaCo, concurrently prohibit sales by such other Holders
under registration statements covering securities held by such other Holders and
(B) in accordance with BermudaCo's policies from time to time in effect, forbid
purchases and sales in the open market by senior executives of BermudaCo.
Notwithstanding the foregoing, in the event of an Independence Conflict,
BermudaCo shall not be permitted to postpone (or continue to postpone) pursuant
to this Section 4.01(a)(iii) the filing of any Restricted Share Registration or
Shelf Registration statement, or suspend (or continue to suspend) the use of any
prospectus included in a registration statement filed pursuant to a Restricted
Share Registration or Shelf Registration.
(b)(i) On or after the Eligible Date, BermudaCo shall effect,
to the extent possible, a Registration with the SEC in accordance with the
Securities Act for an offering on a delayed or continuous basis pursuant to Rule
415 under the Securities Act (a "Shelf Registration") in order to comply with
the terms of this Agreement in which event so long as such Registration is in
effect, the provisions of Section 4.01(a) shall not apply; provided, however,
that, following the one year anniversary of the Effective Date, if the Eligible
Date shall have not occurred, PwCIL shall have the right to cause BermudaCo
(subject to Section 4.01(a)(iii) and 4.01(f)) to effect one additional
Restricted Share Registration in a given year in order for Holders to sell
BermudaCo Shares in respect of Restricted Shares, provided that each such
offering shall have an aggregate offering price of at least $50,000,000.
(ii) BermudaCo, LuxCo and their respective Subsidiaries shall
not grant registration rights on equal or better terms than these granted
pursuant to this Agreement, and the BermudaCo Shares in respect of Restricted
Shares shall have priority over the shares of any other shareholder of
BermudaCo, LuxCo or their respective Subsidiaries (other than holders exercising
demand rights, if the Holders are exercising piggyback registration rights) for
inclusion in any registration statement.
(c) In connection with any Restricted Share Registration or
Shelf Registration required pursuant to this Agreement, BermudaCo shall, subject
to Section 4.01(a)(iii):
(i) file the registration statement with the SEC as promptly as
practicable, and shall use its reasonable best efforts to have the
registration statement declared effective under the Securities Act as
soon as reasonably practicable, in each instance giving due regard to
the need to prepare current financial statements, conduct due diligence
and complete other actions that are reasonably necessary to effect a
registered public offering; and
(ii) use its reasonable best efforts to keep the relevant
registration statement Continuously Effective (x) if a Restricted Share
Registration, for up to
19
60 days or until such earlier date as of which all the BermudaCo Shares
in respect of Restricted Shares under the Restricted Share Registration
statement shall have been disposed of in the manner described in the
registration statement, and (y) if a Shelf Registration, for two years
or until such earlier date as of which all of the BermudaCo Shares in
respect of Restricted Shares registered pursuant thereto have been
disposed of by the Holders selling thereunder. Notwithstanding the
foregoing, if for any reason the effectiveness of a registration
statement pursuant to this Section 4.01 is suspended or, in the case of
a Restricted Share Registration, postponed as permitted by Section
4.01(a)(iii), the foregoing period shall be extended by the aggregate
number of days of such suspension or postponement.
(d) A Registration pursuant to this Section 4.01 shall be on
such appropriate registration form of the SEC as shall (i) be selected by
BermudaCo and be reasonably acceptable to the Largest Holders and (ii) permit
the disposition of the BermudaCo Shares in respect of Restricted Shares in
accordance with the intended method or methods of disposition specified in the
request pursuant to Section 4.01(a)(ii).
(e) If any Registration pursuant to this Section 4.01 involves
an underwritten public offering (whether on a "firm", "best efforts" or "all
reasonable efforts" basis or otherwise), or an agented offering, the Largest
Holders shall have the right to select the underwriter or underwriters and
manager or managers to administer such underwritten public offering or the
placement agent or agents for such agented offering; provided, however, that
each Person so selected shall be reasonably acceptable to BermudaCo.
(f) Whenever BermudaCo shall effect a Registration pursuant to
this Section 4.01 in connection with an underwritten offering by one or more
Selling Holders of BermudaCo Shares in respect of Restricted Shares, if the
Underwriters' Representative or Agent advises each such Selling Holder in
writing that, in its opinion, the amount of securities requested to be included
in such offering (whether by Selling Holders or others) exceeds the amount which
can be sold in such offering within a price range acceptable to the Largest
Holders, securities shall be included in such offering and the related
Registration, to the extent of the amount which can be sold within such price
range: first, for those Holders who have been required to Register BermudaCo
Shares in respect of Restricted Shares to meet their Target Share Amounts; and
second, if additional BermudaCo Shares in respect of Restricted Shares can be
included in the offering, on a pro rata basis, based on Holder ownership of
Restricted Shares.
SECTION 4.02. Piggyback Registration. (a) If at any time
BermudaCo proposes to Register (including for this purpose a Registration
effected by BermudaCo for shareholders of BermudaCo other than the Holders)
BermudaCo Shares under the Securities Act in connection with the public offering
solely for cash on Form X-0, X-0 or S-3 (or any replacement or successor forms),
BermudaCo shall give each Holder of
20
Restricted Shares written notice of its intention to effect such Registration.
Upon the written request of each Holder given within 20 days following the date
of such notice, subject to Section 4.02(b), BermudaCo shall cause to be included
in such registration statement and use its reasonable best efforts to be
Registered under the Securities Act all the BermudaCo Shares in respect of
Restricted Shares that each such Holder shall have requested to be registered (a
"Piggyback Registration"); provided, however, that such right of inclusion shall
not apply to any registration statement covering an underwritten offering of
convertible debt securities, unless the Underwriters' Representative or Agent
expressly consents thereto. BermudaCo shall have the absolute right to withdraw
or cease to prepare or file any registration statement for any offering referred
to in this Section 4.02 without any obligation or liability to any Holder.
(b) If the Underwriters' Representative or Agent shall advise
BermudaCo in writing (with a copy to each Selling Holder) that, in its opinion,
the amount of Restricted Shares requested to be included in any Piggyback
Registration would affect the pricing of such offering to an extent not
acceptable to BermudaCo, then BermudaCo shall include in such Registration, to
the extent of the amount which BermudaCo is so advised can be sold without such
effect in such offering: first, all securities proposed to be sold by BermudaCo
for its own account; second, all securities proposed to be sold by BermudaCo
pursuant to demand registration rights of shareholders of BermudaCo other than
the Holders; third, BermudaCo Shares in respect of Restricted Shares for those
Holders who have been required to Register such BermudaCo Shares to meet their
Target Share Amounts; fourth, the BermudaCo Shares in respect of the Restricted
Shares on a pro rata basis requested to be included in such Piggyback
Registration by Holders pursuant to this Section 4.02; fifth, all other
securities being registered pursuant to the exercise of contractual rights
comparable to the rights granted in this Section 4.02, pro rata based on the
estimated gross proceeds from the sale thereof; and sixth, all other securities
requested to be included in such Piggyback Registration.
(c) The Holders shall be entitled to have their BermudaCo
Shares in respect of Restricted Shares included in an unlimited number of
Piggyback Registrations pursuant to this Section 4.02.
(d) If BermudaCo has previously filed a registration statement
with respect to BermudaCo Shares in respect of Restricted Shares pursuant to
Section 4.01 or pursuant to this Section 4.02, and if such previous Registration
has not been withdrawn or abandoned, BermudaCo shall not be required to file or
cause to be effected any other Registration of any of its equity securities or
securities convertible or exchangeable into or exercisable for its equity
securities under the Securities Act (except on Form S-8 or any successor form),
whether on its own behalf or at the request of any holder or holders of such
securities, until a period of 90 days has elapsed from the effective date of
such a previous Registration.
21
SECTION 4.03. Registration Procedures. Whenever required under
Section 4.01 or Section 4.02 to effect the Registration of any BermudaCo Shares
in respect of Restricted Shares, BermudaCo shall, as expeditiously as
practicable:
(a) Prepare and file with the SEC a registration statement
with respect to such BermudaCo Shares in respect of Restricted Shares
and use its reasonable best efforts to cause such registration
statement to become effective; provided, however, that if reasonably
practicable before filing a registration statement or prospectus or any
amendments or supplements thereto, including (if permitted under the
applicable Registration form) documents incorporated by reference after
the initial filing of the registration statement and prior to
effectiveness thereof, BermudaCo shall furnish to one firm of counsel
for the Selling Holders (selected by the Largest Holders), which may be
counsel to BermudaCo, copies of all such documents in the form
substantially as proposed to be filed with the SEC at least four (4)
business days prior to filing for review and comment by such counsel.
(b) Subject to Section 4.01(a)(iii), 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 Securities Act
and rules thereunder with respect to the disposition of all securities
covered by such registration statement. If the Registration is for an
underwritten public offering, BermudaCo shall amend the registration
statement or supplement the prospectus whenever required by the terms
of the underwriting agreement entered into pursuant to Section 4.04(b).
Subject to Rule 415 under the Securities Act and Section 4.01(a)(iii),
if the registration statement is a Shelf Registration, BermudaCo shall
amend the registration statement or supplement the prospectus so that
it will remain current and in compliance with the requirements of the
Securities Act for five years after its effective date, and if during
such period any event or development occurs as a result of which the
registration statement or prospectus contains a misstatement 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,
BermudaCo shall promptly notify each Selling Holder, amend the
registration statement or supplement the prospectus so that each will
thereafter comply with the Securities Act and furnish to each Selling
Holder of BermudaCo Shares in respect of Restricted Shares such amended
or supplemented prospectus, which each such Holder shall thereafter use
in the Transfer of BermudaCo Shares in respect of Restricted Shares
covered by such registration statement. Pending such amendment or
supplement each such Holder shall cease making offers or Transfers of
BermudaCo Shares in respect of Restricted Shares pursuant to the prior
prospectus. In the event that any BermudaCo Shares in respect of
Restricted Shares included in a registration statement subject to, or
required by, this Agreement remain unsold at the end of the period
during which BermudaCo is obligated to use its reasonable
22
best efforts to maintain the effectiveness of such registration
statement, BermudaCo may file a post-effective amendment to the
registration statement for the purpose of removing such BermudaCo
Shares in respect of Restricted Shares from registered status.
(c) Furnish to each Selling Holder of BermudaCo Shares in
respect of Restricted Shares, without charge, such numbers of copies of
the registration statement, any pre-effective or post-effective
amendment thereto, the prospectus, including each preliminary
prospectus and any amendments or supplements thereto, in each case in
conformity with the requirements of the Securities Act and the rules
thereunder, and such other related documents as any such Selling Holder
may reasonably request in order to facilitate the disposition of
BermudaCo Shares in respect of Restricted Shares owned by such Selling
Holder.
(d) Use its reasonable best efforts (i) if necessary, to
register and qualify the securities covered by such registration
statement under such other securities or blue sky laws of such states
or jurisdictions as shall be reasonably requested by the Underwriters'
Representative or Agent (as applicable, or if inapplicable, the Largest
Holders), and (ii) to obtain the withdrawal of any order suspending the
effectiveness of a registration statement, or the lifting of any
suspension of the qualification (or exemption from qualification) of
the offer and transfer of any of the BermudaCo Shares in respect of
Restricted Shares in any jurisdiction, at the earliest practicable
time; provided, however, that BermudaCo 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
states or jurisdictions.
(e) In the event of any underwritten or agented offering,
enter into and perform its obligations under an underwriting or agency
agreement (including indemnification and contribution obligations of
underwriters or agents), in usual and customary form, with the managing
underwriter or underwriters of or agents for such offering. BermudaCo
shall also reasonably cooperate with the Largest Holders and the
Underwriters' Representative or Agent (as applicable) for such
offering, in the marketing of the BermudaCo Shares in respect of
Restricted Shares, including making available during regular business
hours and upon reasonable prior notice BermudaCo's officers,
accountants, counsel, premises, books and records for such purpose, but
BermudaCo shall not be required to incur any material out-of-pocket
expense pursuant to this sentence.
(f) Promptly notify the Holders of any Restricted Shares
covered by a registration statement and (if requested) confirm such
notice in writing, (i) when a prospectus or any prospectus supplement
or post-effective amendment has been filed, and, with respect to such
registration statement or any post-effective amendment, when the same
has become effective, (ii) of any request by the SEC
23
for amendments or supplements to such registration statement or the
related prospectus or for additional information regarding such
Holders, (iii) of the issuance by the SEC of any stop order suspending
the effectiveness of such Registration Statement or the initiation of
any proceedings for that purpose, (iv) of the receipt by the BermudaCo
of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Restricted Shares for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, and (v) of the occurrence of any event
that requires the making of any changes in such registration statement,
prospectus or documents incorporated or deemed to be incorporated
therein by reference so that they will not contain any untrue statement
or a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading.
(g) Upon execution of confidentiality agreements in form and
substance reasonably satisfactory to BermudaCo, make available during
regular business hours and upon reasonable prior notice for inspection
by any Selling Holder, any underwriter participating in such offering
and the representatives of such Selling Holder and underwriter (but not
more than one firm of counsel to such Selling Holders, which may be
counsel to BermudaCo), all financial and other information as shall be
reasonably requested by them, and provide the Selling Holder, any
underwriter participating in such offering and the representatives of
such Selling Holder and underwriter the opportunity during regular
business hours and upon reasonable prior notice to discuss the business
affairs of BermudaCo with its principal executives and independent
public accountants who have certified the audited financial statements
included in such registration statement, in each case all as necessary
to enable them to exercise their due diligence responsibilities under
the Securities Act; provided, however, that information that BermudaCo
determines, in good faith, to be confidential and which BermudaCo
advises such Person in writing is confidential shall not be disclosed
unless the disclosure of such information is necessary to avoid or
correct a misstatement or an omission in the registration statement.
(h) Use BermudaCo's reasonable best efforts to obtain a
so-called "comfort letter" from its independent public accountants, and
legal opinions of counsel to BermudaCo addressed to the Selling
Holders, in customary form and covering such matters of the type
customarily covered by such letters. BermudaCo shall furnish to each
Selling Holder a signed counterpart or copy thereof of any such comfort
letter or legal opinion. Delivery of any such opinion or comfort letter
shall be subject to the recipient furnishing such written
representations or acknowledgments as are customarily provided by
selling shareholders who receive such comfort letters or opinions.
24
(i) Provide and cause to be maintained a transfer agent and
registrar for all BermudaCo Shares in respect of Restricted Shares
covered by such registration statement from and after a date not later
than the effective date of such registration statement.
(j) Use BermudaCo's reasonable best efforts to cause the
BermudaCo Shares in respect of Restricted Shares covered by such
registration statement (i) if the BermudaCo Shares are then listed on a
securities exchange or included for quotation in a recognized trading
market, to be listed on such securities exchange or included in such
trading market, and (ii) to be registered with or approved by such
other United States or state governmental agencies or authorities as
may be necessary by virtue of the business and operations of BermudaCo
to enable the Selling Holders of BermudaCo Shares in respect of
Restricted Shares to consummate the disposition of such BermudaCo
Shares in respect of Restricted Shares.
(k) Use BermudaCo's reasonable best efforts to provide a CUSIP
number for the BermudaCo Shares in respect of Restricted Shares prior
to the effective date of the first registration statement including
BermudaCo Shares in respect of Restricted Shares.
(l) Take such other actions as are reasonably required in
order to expedite or facilitate the disposition of BermudaCo Shares in
respect of Restricted Shares included in each such Registration.
SECTION 4.04. Holders' Obligations. It shall be a condition
precedent to the obligations of BermudaCo to take any action pursuant to this
Agreement with respect to the BermudaCo Shares in respect of Restricted Shares
of any Selling Holder of Restricted Shares that such Selling Holder shall:
(a) Furnish to BermudaCo such information regarding such
Selling Holder, the number of BermudaCo Shares in respect of the
Restricted Shares owned by it, and the intended method of disposition
of such securities as shall be required to effect the Registration of
the BermudaCo Shares in respect of such Selling Holder's Restricted
Shares, and to cooperate with BermudaCo in preparing such Registration;
(b) Agree to sell BermudaCo Shares in respect of its
Restricted Shares to the underwriters at the same price and on
substantially the same terms and conditions as BermudaCo or the other
Persons on whose behalf the registration statement was being filed have
agreed to sell their securities (in the case of a Registration under
Section 4.02), and to execute the underwriting agreement agreed to by
the Largest Holders (in the case of a Registration under Section 4.01)
25
or BermudaCo and the Largest Holders (in the case of a Registration
under Section 4.02).
(c) each Holder of Restricted Shares covered by a registration
statement agrees that, upon receipt of any notice from BermudaCo of the
occurrence of any event of the kind described in Section 4.03(f)(ii),
4.03(f)(iii), 4.03(f)(iv) or 4.03(f)(v) hereof, that such Holder shall
forthwith discontinue disposition of any Restricted Shares covered by
such registration statement or the related prospectus until receipt of
the copies of the supplemented or amended prospectus as contemplated by
the Agreement, or until such Holder is advised in writing by BermudaCo
that the use of the applicable prospectus or any additional or
supplemental filings which are incorporated, or deemed to be
incorporated, by reference in such prospectus (such period during which
disposition is discontinued being an "Interruption Period") and, if
requested by BermudaCo, the Holder shall deliver to BermudaCo (at the
expense of BermudaCo) all copies then in its possession, other than
permanent file copies then in such holder's possession, of the
prospectus covering such Restricted Shares at the time of receipt of
such request.
SECTION 4.05. Expenses of Registration. Expenses in connection
with registrations pursuant to this Agreement shall be allocated and paid as
follows:
(a) With respect to each Restricted Share Registration and
Shelf Registration, BermudaCo shall bear and pay all expenses incurred
in connection with any Registration, filing, or qualification of
BermudaCo Shares in respect of Restricted Shares with respect to such
Restricted Share Registrations for each Selling Holder, including all
Registration, filing and National Association of Securities Dealers,
Inc. fees, all fees and expenses of complying with securities or blue
sky laws, all word processing, duplicating and printing expenses,
messenger and delivery expenses, the reasonable fees and disbursements
of counsel for BermudaCo, and of BermudaCo's independent public
accountants, including the expenses of "cold comfort" letters required
by or incident to such performance and compliance, and, if counsel to
BermudaCo is not acting in such capacity, the reasonable fees and
disbursements of one firm of counsel for the Selling Holders of
BermudaCo Shares in respect of Restricted Shares (selected by Largest
Holders) (the "Registration Expenses"), but excluding underwriting
discounts and commissions relating to BermudaCo Shares in respect of
Restricted Shares (which shall be paid on a pro rata basis by the
Selling Holders).
(b) BermudaCo shall bear and pay all Registration Expenses
incurred in connection with any Piggyback Registrations pursuant to
Section 4.02 attributed to each Selling Holder, but excluding
underwriting discounts and commissions
26
relating to BermudaCo Shares in respect of Restricted Shares (which
shall be paid on a pro rata basis by the Selling Holders).
(c) Any failure of BermudaCo to pay any Registration Expenses
as required by this Section 4.05 shall not relieve BermudaCo of its
obligations under this Agreement.
SECTION 4.06. Indemnification; Contribution. If any Restricted
Shares are included in a registration statement under this Agreement:
(a) To the extent permitted by applicable law, BermudaCo and
LuxCo shall indemnify and hold harmless each Selling Holder, each
Person, if any, who controls such Selling Holder within the meaning of
the Securities Act, and each officer, director, Partner, principal and
employee of such Selling Holder and such controlling Person, against
any and all losses, claims, damages, liabilities and expenses (joint or
several), including attorneys' fees and disbursements and expenses of
investigation, incurred by such party pursuant to any actual or
threatened action, suit, proceeding or investigation, or to which any
of the foregoing Persons may become subject under the Securities Act,
the Exchange Act or other federal or state laws, insofar as such
losses, claims, damages, liabilities and expenses 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 BermudaCo
or LuxCo of the Securities Act, the Exchange Act, any
applicable state securities law or any rule or regulation
promulgated under the Securities Act, the Exchange Act or any
applicable state securities law;
provided, however, that the indemnification required by this Section 4.06(a)
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or expense if such settlement is effected without the consent of
BermudaCo or LuxCo (which consent shall not be unreasonably withheld), nor shall
BermudaCo or LuxCo be liable in any such case for any such loss, claim, damage,
liability or expense to the extent that it arises out of or is based upon a
Violation which occurs in reliance upon and in conformity with written
27
information furnished to BermudaCo or LuxCo by the indemnified party expressly
for use in connection with such Registration. BermudaCo and LuxCo shall also
indemnify underwriters and each person who controls such underwriters (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) to the same extent as provided above with respect to the indemnification of
the Selling Holders; provided, however, that the indemnity agreement contained
in this Section 4.06 shall not apply to any underwriter or person who controls
any underwriter to the extent that any such loss is based on or arises out of an
untrue statement or alleged untrue statement of a material fact, or an omission
or alleged omission to state a material fact, contained in or omitted from any
preliminary prospectus if the final prospectus shall correct such untrue
statement or alleged untrue statement, or such omission or alleged omission, and
a copy of the final prospectus has not been sent or given to such person at or
prior to the confirmation of sale to such person if such underwriter was under
an obligation to deliver such final prospectus and failed to do so.
(b) To the extent permitted by applicable law, each Selling
Holder shall indemnify and hold harmless each of BermudaCo and LuxCo,
each of their respective directors, each of their respective officers
who shall have signed the registration statement, each Person, if any,
who controls BermudaCo or LuxCo within the meaning of the Securities
Act, any other Selling Holder, any controlling Person of any such other
Selling Holder and each officer, director, Partner, principal and
employee of such other Selling Holder and such controlling Person,
against any and all losses, claims, damages, liabilities and expenses
(joint and several), including attorneys' fees and disbursements and
expenses of investigation, incurred by such underwriters party pursuant
to any actual or threatened action, suit, proceeding or investigation,
or to which any of the foregoing Persons may otherwise become subject
under the Securities Act, the Exchange Act or other federal or state
laws, insofar as such losses, claims, damages, liabilities and expenses
arise out of or are 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 furnished by such
Selling Holder expressly for use in connection with such Registration;
provided, however, that (x) the indemnification required by this
Section 4.06(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or expense if settlement is
effected without the consent of the relevant Selling Holder of
BermudaCo Shares in respect of Restricted Shares, which consent shall
not be unreasonably withheld, and (y) in no event shall the amount of
any indemnity under this Section 4.06(b) exceed the net proceeds from
the applicable offering received by such Selling Holder. The Selling
Holders shall also indemnify underwriters and each person who controls
such underwriters (within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act) to the same extent as provided
above with respect to the indemnification of BermudaCo and LuxCo;
provided, however, that the indemnity agreement contained in this
Section 4.06 shall not apply to any
28
underwriter or person who controls any underwriter to the extent that
any such loss is based on or arises out of an untrue statement or
alleged untrue statement of a material fact, or an omission or alleged
omission to state a material fact, contained in or omitted from any
preliminary prospectus if the final prospectus shall correct such
untrue statement or alleged untrue statement, or such omission or
alleged omission, and a copy of the final prospectus has not been sent
or given to such person at or prior to the confirmation of sale to such
person if such underwriter was under an obligation to deliver such
final prospectus and failed to do so.
(c) Promptly after receipt by an indemnified party under this
Section 4.06 of notice of the commencement of any action, suit,
proceeding, investigation or threat thereof made in writing for which
such indemnified party may make a claim under this Section 4.06, such
indemnified party shall 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
satisfactory to the parties. The failure to deliver written notice to
the indemnifying party within a reasonable time following the
commencement of any such action, if materially prejudicial to its
ability to defend such action, shall relieve such indemnifying party of
any liability to the indemnified party under this Section 4.06 to the
extent of such material prejudice, but shall not relieve the
indemnifying party of any liability that it may have to any indemnified
party otherwise than pursuant to this Section 4.06. Any reasonable fees
and expenses incurred by the indemnified party (including any fees and
expenses incurred in connection with investigating or preparing to
defend such action or proceeding) for which the indemnifying party is
liable pursuant to this Section 4.6 shall be paid to the indemnified
party, as incurred, within thirty (30) days of written notice thereof
to the indemnifying party. Any such indemnified party shall have the
right to employ separate counsel in any such action, claim or
proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be borne by such indemnified party
unless (i) the indemnifying party has agreed to pay such fees and
expenses or (ii) the indemnifying party shall have failed to promptly
assume the defense of such action, claim or proceeding.
(d) Contribution. If the indemnification required by this
Section 4.06 from the indemnifying party is unavailable to or is
insufficient to hold harmless an indemnified party hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to in
this Section 4.06:
(i) The indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses,
claims, damages, liabilities or expenses in such proportion as
is appropriate to reflect the relative fault of
29
the indemnifying party and indemnified parties in connection
with the actions which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such
indemnifying party and indemnified parties shall be determined
by reference to, among other things, whether any Violation has
been committed by, or relates to information supplied by, such
indemnifying party or indemnified parties, and the parties'
relative intent, knowledge, access to information and
opportunity to correct or prevent such Violation. The amount
paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in
Section 4.06(a) and Section 4.06(b), any legal or other fees
or expenses reasonably incurred by such party in connection
with any investigation or proceeding.
(ii) The parties hereto agree that it would not be
just and equitable if contribution pursuant to this Section
4.06(d) were determined by pro rata allocation or by any other
method of allocation which does not take into account the
equitable considerations referred to in Section 4.06(d)(i). 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.
(e) If indemnification is available under this Section 4.06,
the indemnifying parties shall indemnify each indemnified party to the
full extent provided in this Section 4.06 without regard to the
relative fault of such indemnifying party or indemnified party or any
other equitable consideration referred to in Section 4.06(d).
(f) The obligations of BermudaCo and the Selling Holders of
BermudaCo Shares in respect of Restricted Shares under this Section
4.06 shall survive the completion of any offering of BermudaCo Shares
in respect of Restricted Shares pursuant to a registration statement
under this Agreement, and otherwise.
SECTION 4.07. Holdback. Subject to such exceptions as may be
agreed between the Holders and the Underwriters' Representative or Agent (as
applicable), each Holder entitled pursuant to this Agreement to have BermudaCo
Shares in respect of Restricted Shares included in a registration statement
prepared pursuant to this Agreement, if so requested by the Underwriters'
Representative or Agent in connection with an offering of any BermudaCo Shares
in respect of Restricted Shares, shall not effect any public sale or
distribution of BermudaCo Shares or any securities convertible into or
exchangeable or exercisable for BermudaCo Shares, including a sale pursuant to
Rule 144 under the Securities Act (except as part of such underwritten or
agented Registration), during the 90-day period (or such other period as may be
agreed between the Holder and
30
such Underwriters' Representative or Agent (as applicable)) beginning on the
date such registration statement is declared effective under the Securities Act
by the SEC, provided that such Holder is timely notified of such effective date
in writing by BermudaCo or such Underwriters' Representative or Agent (as
applicable); and provided, further, that if the executive officers and directors
of BermudaCo are subject to a "holdback" period in connection with such offering
that is shorter than 90 days, then the Holders' holdback period shall be
shortened to such shorter period. In order to enforce the foregoing covenant,
BermudaCo shall be entitled to impose stop-transfer instructions with respect to
BermudaCo Shares in respect of the Restricted Shares of each Holder until the
end of such period.
SECTION 4.08. Covenants of BermudaCo. BermudaCo hereby agrees
and covenants as follows:
(a) BermudaCo shall file as and when applicable, on a timely
basis, all reports required to be filed by it under the Exchange Act.
(b) BermudaCo shall not effect, and shall not allow any of its
Subsidiaries to effect, any Registration of its securities (other than
on Form X-0, Xxxx X-0, or any successor forms to such forms or pursuant
to such other registration rights agreements as may be approved in
writing by the Largest Holders, as the case may be), or effect (or
commence the process to effect in a manner that would notify the
public) any public or private sale or distribution of any of its
securities, including a sale pursuant to Regulation D under the
Securities Act, whether on its own behalf or at the request of any
holder or holders of such securities from the date of a request for a
Restricted Share Registration pursuant to Section 4.01(a) until the
earlier of (x) 90 days following the date as of which all securities
covered by such Restricted Share Registration statement shall have been
Transferred, and (y) 90 days following the effective date of such
Restricted Share Registration statement, or such earlier date at which
the distribution of such securities shall be completed unless BermudaCo
shall have previously notified in writing all Selling Holders of
BermudaCo's desire to do so, and Selling Holders owning a majority of
the Restricted Shares or the Underwriters' Representative, if any,
shall have consented thereto in writing.
(c) On the Effective Date, BermudaCo shall authorize such
number of BermudaCo Shares as may be required to effect the redemption
or exchange of all LuxCo Shares and Exchangeable Shares then
outstanding.
31
ARTICLE V
Independence Rules
SECTION 5.01. Independence Related Divestitures. Each
Shareholder agrees to abide by the Independence Rules and the terms of the
No-Action Letter applicable to the Shareholder and to take any and all action
requested by the Board of PwCIL in connection with such Independence Rules and
No-Action Letter. In the event of an Independence Conflict, such Shareholder
hereby agrees to sell or transfer, or cause the sale or transfer of, some or all
of its Shares at the times, in the amounts and on the terms, prices and
conditions determined by the Board of PwCIL. At the request of the Board of
PwCIL, the Shareholder shall take any and all actions necessary or appropriate,
in the sole judgment of the Board of PwCIL, to facilitate such divestiture,
including, but not limited to, the transfer of such Shares to a person, trust or
other entity for disposition or the granting of a power of attorney relating to
the voting or disposition of such Shares. Each Shareholder agrees to hold its
Restricted Shares in a manner which will permit either a voluntary or mandatory
timely sale of such Restricted Shares (including converting LuxCo Shares or
Exchangeable Shares into BermudaCo Shares for purposes of such sales) in
accordance with the terms of the No-Action Letter.
ARTICLE VI
Term of Agreement
SECTION 6.01. Term of Agreement. This Agreement shall take
effect on the Effective Date. This Agreement (other than the provisions of
Section 4.06) shall terminate with respect to any Shareholder on the date that
such Shareholder and its Subsidiaries no longer own any Restricted Shares.
ARTICLE VII
Miscellaneous Provisions
SECTION 7.01. Specific Performance. The parties hereto hereby
declare that irreparable damage would occur as a result of the failure of any
party hereto to perform any of its obligations under this Agreement in
accordance with the specific terms hereof. Therefore, all parties hereto shall
have the right to specific performance of the obligations of the other parties
under this Agreement and if any party hereto shall institute any action or
proceeding to enforce the provisions hereof, any person against whom such action
or proceeding is brought hereby waives the claim or defense therein that such
party has an adequate remedy at law. The right to specific performance should be
in addition to any other remedy to which a party hereto may be entitled at law
or in equity.
32
SECTION 7.02. Legends. (a) Each certificate representing
Shares shall bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
TERMS AND CONDITIONS (INCLUDING RESTRICTIONS ON TRANSFER) SET
FORTH IN A SHAREHOLDERS AGREEMENT DATED AS OF AUGUST -, 2002.
A COPY OF WHICH MAY BE OBTAINED FROM MONDAY LTD OR MONDAY SCA.
NO TRANSFER OF SUCH SECURITIES WILL BE MADE ON THE BOOKS OF,
OR BE EFFECTIVE WITH RESPECT TO, MONDAY LTD OR MONDAY SCA
UNLESS ACCOMPANIED BY EVIDENCE OF COMPLIANCE WITH THE TERMS OF
SUCH AGREEMENT.
(b) In addition, stop transfer restrictions will be given to
BermudaCo's transfer agent(s) with respect to Shares and there will be placed on
the certificates or instruments representing Shares, and on any certificate or
instrument delivered in substitution therefor, a legend stating in substance:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO SUCH REGISTRATION OR IN
ACCORDANCE WITH AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
(c) BermudaCo hereby agrees that it will cause stop transfer
restrictions to be released with respect to any Shares that are transferred in
compliance with the terms and provisions of this Agreement (other than transfers
by Shareholders to their Partners) and (i) pursuant to an effective registration
statement under the Securities Act, (ii) pursuant to Rule 144 or 145 under the
Securities Act, (iii) in accordance with the requirements of Rule 903 or 904 of
Regulation S under the Securities Act, or (iv) pursuant to another exemption
from the Registration requirements of the Securities Act; provided, however,
that in the case of any transfer pursuant to clause (ii), (iii) or (iv) above,
the request for transfer is accompanied by a written statement signed by a
Shareholder confirming compliance with the requirements of the relevant
exemption from Registration; and provided, further, that in the case of any
transfer pursuant to clause (iv) above, other than any transfer by such
Shareholder to one or more of such Shareholder's direct or indirect
subsidiaries, or among such subsidiaries, or by any such subsidiary to such
Shareholder for so long as such subsidiary shall be wholly owned, BermudaCo
shall have received a written opinion of counsel reasonably satisfactory to
33
BermudaCo. BermudaCo further agrees that it will cause the legends described in
subsections (a) and (b) of this Section 7.02 to be removed in the event of any
transfer as provided in clause (i), (ii) or (iii) above.
SECTION 7.03. Conflicts and Inconsistent Agreements. Each of
the Shareholders, BermudaCo and LuxCo shall take all action necessary, to ensure
that the Articles of Association and By-Laws of LuxCo, the Memorandum of
Association and Bye-Laws of BermudaCo and the constitutive or other governing
documents of BermudaCo or LuxCo's Subsidiaries are consistent with, and do not
conflict with, the terms of this Agreement. Neither LuxCo, BermudaCo, any
Shareholder or any of their respective Subsidiaries shall enter into any
agreement inconsistent with the terms of this Agreement.
SECTION 7.04. Complete Agreement. This Agreement and the
Transaction Agreements constitute the entire agreement and understanding among
the parties hereto with respect to the matters referred to herein and supersedes
all prior agreements and understandings among the parties hereto with respect to
the matters referred to herein.
SECTION 7.05. Amendment. This Agreement may not be amended,
modified or supplemented and no waivers of or consents to departures from the
provisions hereof may be given unless consented to in writing by PwCIL, LuxCo,
BermudaCo and Shareholders holding no less than 75% of all Shares held by
Shareholders; provided, however, that PwCIL may amend, modify or supplement
Exhibit A at any time in its sole discretion, provided, than Sections 1 and 2 of
Exhibit A may not be amended without the consent of BermudaCo.
SECTION 7.06. Successors; Assigns; Subsidiary Holders. This
Agreement and all of the provisions hereof shall be binding upon and shall inure
to the benefit of the parties hereto and their respective Subsidiary Holders,
heirs, assigns, executors, administrators or successors. A Holder may Transfer
its rights hereunder to a successor in interest to the Restricted Shares owned
by such assignor only as permitted by Section 4.09. Each Shareholder agrees with
respect to any Affiliate that becomes a Subsidiary Holder hereunder, to promptly
thereafter cause such Affiliate to execute a counterpart hereof agreeing to be
bound by all of the terms, conditions and restrictions of this Agreement, as and
to the same extent as such Shareholder. The execution of a counterpart hereof by
an Affiliate who has become a Subsidiary Holder does not constitute an
assignment of any part of this Agreement prohibited by this Section 7.06, and
the Shareholder with which such Subsidiary Holder is affiliated with will remain
bound by all of the terms, conditions and restrictions of this Agreement.
SECTION 7.07. Attorney Fees. A party in breach of this
Agreement shall, on demand, indemnify and hold harmless the other party for and
against all reasonable out-of-pocket expenses, including legal fees and
expenses, incurred by such
34
other party by reason of the enforcement and protection of its rights under this
Agreement. The payment of such expenses is in addition to any other relief to
which such other party may be entitled.
SECTION 7.08. 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 by prepaid telex, cable or telecopy 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, telexed, cabled or
telecopied, or if mailed, three days after mailing (one business day in the case
of express mail or overnight courier service), as follows (or at such other
address, telephone number and fax number as a party shall notify each other
party hereto):
(i) if to LuxCo:
Monday SCA
c/o PricewaterhouseCoopers LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Facsimile: (000) 000-0000
(ii) if to the Shareholders: to the address across from its
name on Schedule II.
(iii) if to PwCIL:
PricewaterhouseCoopers International Limited
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
(iv) if to BermudaCo:
Monday Ltd
c/o PricewaterhouseCoopers LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Facsimile: (000) 000-0000
35
SECTION 7.09. Interpretation; Exhibits and Schedules. The
headings contained in this Agreement, in any Exhibit or Schedule hereto and in
the table of contents to this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement. All
Exhibits and Schedules annexed hereto or referred to herein are hereby
incorporated in and made a part of this Agreement as if set forth in full
herein. Any capitalized terms used in any Schedule or Exhibit but not otherwise
defined therein, shall have the meaning as defined in this Agreement.
SECTION 7.10. 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.
SECTION 7.11. Severability. If any provision of this Agreement
(or any portion thereof) or the application of any such provision (or any
portion thereof) to any person or circumstance shall be held invalid, illegal or
unenforceable in any respect by a court of competent jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
hereof (or the remaining portion thereof) or the application of such provision
to any other persons or circumstance.
SECTION 7.12. GOVERNING LAW. THIS AGREEMENT AND ALL ACTIONS
CONTEMPLATED HEREBY SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICT OF
LAWS PRINCIPLES).
SECTION 7.13. SUBMISSION TO JURISDICTION. EACH OF PWCIL, LUXCO
AND BERMUDACO IRREVOCABLY SUBMITS, AND EACH OF THE SHAREHOLDERS IRREVOCABLY
SUBMITS, AND AGREES TO CAUSE EACH OF THEIR RESPECTIVE SUBSIDIARIES TO
IRREVOCABLY SUBMIT TO, TO THE EXCLUSIVE JURISDICTION OF (I) THE STATE COURTS OF
NEW YORK, AND (II) THE FEDERAL COURTS LOCATED IN THE STATE OF NEW YORK, FOR THE
PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF THE AGREEMENT OR
ANY TRANSACTION CONTEMPLATED THEREBY (AND EACH AGREES THAT NO SUCH ACTION, SUIT
OR PROCEEDING RELATING TO THE AGREEMENT SHALL BE BROUGHT BY IT OR ANY OF ITS
SUBSIDIARIES EXCEPT IN SUCH COURTS). EACH OF PWCIL, LUXCO AND BERMUDACO FURTHER
AGREES, AND EACH OF THE SHAREHOLDERS FURTHER AGREES, AND AGREES TO CAUSE THEIR
RESPECTIVE SUBSIDIARIES TO AGREE, THAT SERVICE OF ANY PROCESS, SUMMONS, NOTICE
OR DOCUMENT BY U.S. REGISTERED MAIL TO SUCH PERSON'S RESPECTIVE ADDRESS SET
FORTH ABOVE SHALL BE EFFECTIVE
36
SERVICE OF PROCESS FOR ANY ACTION, SUIT OR PROCEEDING IN NEW YORK WITH RESPECT
TO ANY MATTERS TO WHICH IT HAS SUBMITTED TO JURISDICTION AS SET FORTH ABOVE IN
THE IMMEDIATELY PRECEDING SENTENCE. EACH OF PWCIL, LUXCO AND BERMUDACO
IRREVOCABLY AND UNCONDITIONALLY WAIVES (AND AGREES NOT TO PLEAD OR CLAIM), AND
EACH OF THE SHAREHOLDERS IRREVOCABLY AND UNCONDITIONALLY WAIVES (AND AGREES NOT
TO PLEAD OR CLAIM), AND AGREES TO CAUSE THEIR RESPECTIVE SUBSIDIARIES TO
IRREVOCABLY WAIVE, ANY OBJECTION TO THE LAYING OF VENUE OF ANY ACTION, SUIT OR
PROCEEDING ARISING OUT OF THE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY
IN (I) THE STATE COURTS OF NEW YORK OR (II) THE FEDERAL COURTS LOCATED IN THE
STATE OF NEW YORK OR THAT ANY SUCH ACTION, SUIT OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
SECTION 7.14. No Waiver of Rights. No failure or delay on the
part of any party in the exercise of any power or right hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such power
or right preclude other or further exercise thereof or of any other right or
power. The waiver by any party or parties hereto of a breach of any provision of
this Agreement shall not operate or be construed as a waiver of any other or
subsequent breach hereunder. All rights and remedies existing under this
Agreement are cumulative and are not exclusive of any rights or remedies
otherwise available.
37
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed as of the date first written above.
MONDAY SCA,
by
-----------------------------------
Name:
Title:
MONDAY LTD,
by
-----------------------------------
Name:
Title:
PRICEWATERHOUSECOOPERS
INTERNATIONAL LIMITED,
by
-----------------------------------
Name:
Title:
[SHAREHOLDER],
by
-----------------------------------
Name:
Title:
[CUSTODIAN FOR PARTNERS],
by
-----------------------------------
Name:
Title:
SCHEDULE I
Shareholders
--------------------------------------------------------------------------------
Entity BermudaCo Shares LuxCo Shares
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Custodian
--------------------------------------------------------------------------------
SCHEDULE II
Notices to the Shareholders
--------------------------------------------------------------------------------
Shareholders Address
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
EXHIBIT A
CUSTODIAL AGREEMENT (this "Agreement"), dated as
of [ ], 2002, among [Custodian Name] (the "Custodian"),
the Partners signatory hereto (the "Partners") and
PricewaterhouseCoopers International Limited ("PwCIL").
RECITALS
A. Contemporaneously with the execution of this Agreement,
each Partner will receive Shares (as such term is defined in the Shareholders
Agreement dated as of August [ ], 2002 among Monday SCA, Monday Ltd,
PricewaterhouseCoopers International Limited and the Shareholders party thereto
(the "Shareholders Agreement"; capitalized terms used but not defined herein
shall have the meanings assigned thereto in the Shareholders Agreement)).
B. As a condition to the Transfer of Shares to the Partners,
pursuant to the terms of the Shareholders Agreement, the Partners must execute
and deliver this Agreement and thereby designate the Custodian to hold the
Shares on their behalf in accordance with certain terms of the Shareholders
Agreement.
C. The Custodian will hold the Shares Transferred to the
Partners and will take possession of such Shares as custodian for the Partners,
pursuant to the terms set forth herein.
NOW THEREFORE, in consideration of the mutual agreements
stated below, the Custodian, the Partners and PwCIL agree as follows:
1. On the date on which the Transfer of Shares to the Partners
shall become effective, the transferor shall deliver all Shares so Transferred
to the Custodian. The Custodian shall acknowledge receipt of the Shares from the
transferor.
2. The Custodian shall hold the Shares delivered pursuant to
paragraph 1 in accordance with Section 3.06 of the Shareholders Agreement. If as
a result of the Transfer the Shares are deemed to have been "Disposed" under
Section 3.09(b) of the Shareholders Agreement, the Custodian and the Partners
shall have no rights or obligations under the Shareholders Agreement except as
set forth in Section 3.06 therein. If the Shares are not deemed to have been
"Disposed", the Custodian shall hold the Shares subject to the rights and
obligations of a Shareholder under the Shareholders Agreement (and shall be
deemed to be a Shareholder for all purposes therein). The Custodian shall
promptly deliver a signature page of the Shareholders Agreement to PwCIL and
BermudaCo agreeing to be so bound. The Custodian shall use reasonable efforts to
promptly release and transfer Shares at the direction of the Partner in whose
name the Shares are held (as directed in a Request for Release substantially in
the form of Exhibit A hereto), provided such transfer is in accordance with the
Shareholders Agreement (or Section 3.06 thereof, as applicable).
3. The Custodian hereby represents and warrants to the
Partners and PwCIL that it is (i) an "accredited investor" as defined in
Regulation D promulgated under the Securities Act OR an investor with sufficient
knowledge and experience in financial and business matters so as to be capable
of evaluating the merits and risks of an
investment in the Shares or (ii) not a "U.S. person" (as defined in Regulation S
promulgated under the Securities Act) and that it is receiving Shares in an
"offshore transaction" pursuant to Regulation S.
4. In the event the Custodian shall receive original share
certificates in connection with the Transfer of Shares pursuant to Section 1,
the Custodian shall segregate and maintain continuous custody of such
certificates in secure and fireproof facilities in accordance with the
Custodian's customary standards for the custody and handling of original
negotiable instruments.
5. The Custodian shall be entitled to reasonable compensation
for its services as custodian under this Agreement. The reasonable fees and
expenses of the Custodian and any successor Custodians shall be obligations of
the Partners.
6. The parties hereto hereby declare that irreparable damage
would occur as a result of the failure of any party hereto to perform any of its
obligations under this Agreement in accordance with the specific terms hereof.
Therefore, all parties hereto shall have the right to specific performance of
the obligations of the other parties under this Agreement and if any party
hereto shall institute any action or proceeding to enforce the provisions
hereof, any person against whom such action or proceeding is brought hereby
waives the claim or defense therein that such party has an adequate remedy at
law. The right to specific performance should be in addition to any other remedy
to which a party hereto may be entitled at law or in equity.
7. At such time as the Shareholders Agreement shall be
terminated, the Custodian shall release the Shares held by it pursuant to
Section 1 to such Persons as designated by the Partner in whose name such Shares
are held.
8. This Agreement and the Shareholders Agreement constitute
the entire agreement and understanding among the parties hereto with respect to
the matters referred to herein and supersede all prior agreements and
understandings among the parties hereto with respect to the matters referred to
herein.
9. This Agreement may not be amended, modified or supplemented
and no waivers of or consents to departures from the provisions hereof may be
given unless consented to in writing by the Partners, the Custodian and PwCIL.
10. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned, directly or indirectly, including by
operation of law, by the Custodian, without the prior written consent of the
Partners and PwCIL. The terms and conditions of this Agreement shall be binding
on and inure to the benefit of the respective successors and permitted assigns
of the parties hereto. The Custodian agrees with respect to any party that
becomes a successor Custodian hereunder to promptly thereafter cause such
successor Custodian to execute a counterpart hereof agreeing to be bound by all
of the terms, conditions and restrictions of this Agreement, as and to the same
extent as such Custodian.
11. A party in breach of this Agreement shall, on demand,
indemnify and hold harmless the other party for and against all reasonable
out-of-pocket expenses, including legal fees and expenses, incurred by such
other party by reason of the enforcement and protection of its rights under this
Agreement. The payment of such
5
expenses is in addition to any other relief to which such other party may be
entitled.
12. The Custodian shall indemnify and hold harmless the
Partners and PwCIL from and against any loss, cost, damage or expense, including
reasonable attorneys' fees, to the extent that such loss, cost, damage or
expense arises out of errors, omissions or malfeasance by the Custodian in
performing its obligations under this Agreement, including any loss of any Share
and any failure to deliver the Share as required hereunder and pursuant to the
Shareholders Agreement.
13. The Custodian shall be under no duty or obligation to
inspect, review, or examine the Shares delivered pursuant to Section 1, to
determine that they are genuine, enforceable or appropriate for their respective
represented purposes or that they are what they purport to be on their face.
14. The Custodian may request and rely upon any resolution,
officer's certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other document reasonably believed by it to be genuine and to
have been signed or presented by the proper party or parties.
15. All notices or other communications required or permitted
to be given hereunder shall be in writing and shall be delivered by hand or sent
by prepaid telex, cable or telecopy 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, telexed, cabled or telecopied, or if
mailed, three days after mailing (one business day in the case of express mail
or overnight courier service), as follows (or at such other address, telephone
number and fax number as a party shall notify each other party hereto):
(i) if to the Custodian:
[ ]
[ ]
[ ]
[ ]
[ ]
[ ]
(ii) if to PwCIL:
[ ]
[ ]
[ ]
[ ]
[ ]
[ ]
(iii) if to any Partner, as set forth opposite such Partner's
signature below.
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.
16. If any provision of this Agreement (or any portion
thereof) or the application of any such provision (or any portion thereof) to
any person or circumstance shall be held invalid, illegal or unenforceable in
any respect by a court of competent jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provision hereof (or the remaining
portion thereof) or the application of such provision to any other persons or
circumstance.
17. This Agreement and all actions contemplated hereby shall
be governed by and construed and enforced in accordance with the laws of the
State of New York (without regard to conflict of law principles).
18. Each of the Partners, the Custodian and PwCIL irrevocably
submits to the exclusive jurisdiction of (i) the State Courts of New York, and
(ii) the federal courts located in the State of New York, for the purposes of
any suit, action or other proceeding arising out of the agreement or any
transaction contemplated thereby. Each of the Partners, the Custodian and PwCIL
further agrees that service of any process, summons, notice or document by U.S.
registered mail to such person's respective address set forth above shall be
effective service of process for any action, suit or proceeding in New York with
respect to any matters to which it has submitted to jurisdiction as set forth
above in the immediately preceding sentence. Each of the Partners, the Custodian
and PwCIL irrevocably and unconditionally waives (and agrees not to plead or
claim), any objection to the laying of venue of any action, suit or proceeding
arising out of the agreement or the transactions contemplated thereby in (i) the
State Courts of New York or (ii) the federal courts located in the State of New
York or that any such action, suit or proceeding brought in any such court has
been brought in an inconvenient forum.
19. No failure or delay on the part of any party in the
exercise of any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power or right preclude other
or further exercise thereof or of any other right or power. The waiver by any
party or parties hereto of a breach of any provision of this Agreement shall not
operate or be construed as a waiver of any other or subsequent breach hereunder.
All rights and remedies existing under this Agreement are cumulative and are not
exclusive of any rights or remedies otherwise available.
TO WITNESS THIS AGREEMENT, the Partners, the Custodian and
PwCIL have caused it to be executed as of the date first written above.
[CUSTODIAN],
by
----------------------------------
Name:
Title:
PRICEWATERHOUSECOOPERS
INTERNATIONAL LIMITED,
by
----------------------------------
Name:
Title:
[PARTNERS],
by
----------------------------------
Name:
Title:
EXHIBIT A
PARTNER REQUEST FOR RELEASE OF SHARES AND RECEIPT
To: [CUSTODIAN]
Re: Custodial Agreement dated as of [ ], 2002, among
[Custodian], [Partner] and PricewaterhouseCoopers
International Limited
In connection with the delivery of the Shares held by you on
behalf of the Partner, the Partner signatory below requests the release the
Shares described below. All capitalized terms used in this Request and not
otherwise defined will have the meanings assigned them in the Custodial
Agreement referred to above.
[Share Certificate Number(s)]:
The Shares are to be released to
The Partner at the addresses on file with the Custodian
-----
The following person(s):
-----
---------------------------------------------------------
---------------------------------------------------------
Upon the Custodian's release of the above-referenced Shares,
the transferee shall acknowledge receipt of the Shares shall sign in the space
indicated below and return this form to the Custodian.
[Custodian]
By
--------------------------------------
Name:
Title:
Date:
------------------------------------
Acknowledged and approved by,
[Partner]
By
--------------------------------------
Name:
Title:
Date:
------------------------------------
Date released:
-----------------------
Receipt acknowledged:
[Transferee]
By
------------------------------------
Name:
Title:
Date:
------------------------------------
