EXHIBIT 99(e)
EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), dated as of October
___, 2002, by and between the Purchasers listed on the signature pages hereto
(the "PURCHASERS"), and WHITE MOUNTAINS INSURANCE GROUP, LTD., a company
existing under the laws of Bermuda (the "COMPANY").
W I T N E S S E T H:
WHEREAS, this Agreement is entered into pursuant to that certain
Subscription Agreement between the Purchasers and the Company dated as of
October 23, 2002 (the "SUBSCRIPTION AGREEMENT"), pursuant to which, among other
things, the Purchasers agreed to purchase from the Company, for a purchase price
of $24,999,775, 84,745 Common Shares of the Company; and
WHEREAS, in connection with the transactions contemplated by the
Subscription Agreement, the parties hereto desire to provide for certain rights
and obligations in respect of the Common Shares as hereinafter provided.
NOW, THEREFORE, in consideration of the mutual agreements, covenants,
representations and warranties contained herein and in the Subscription
Agreement, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. DEFINITIONS. As used in this Agreement, the following terms have the
following meanings:
"AFFILIATE" of a specified Person means any Person that is a direct or
indirect wholly owned subsidiary of such Person.
"BEST EFFORTS" means the commercially reasonable efforts that a prudent
person desirous of achieving a result would use in good faith in similar
circumstances to ensure that such result may be achieved as expeditiously as can
reasonably be expected.
"BOARD" means the board of directors of the Company.
"COMMON SHARES" means common shares of the Company, par value $1.00 per
share.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, or
any successor statute.
"HOLDER" or "HOLDERS" means each Purchaser or any Permitted Transferee
thereof which is the record holder of Registrable Securities.
"OTHER HOLDERS" shall have the meaning ascribed to such term in
Section 2(b).
"OTHER SECURITIES" shall have the meaning ascribed to such term in
Section 2.
"PERMITTED TRANSFEREE" shall mean any Affiliate of a Holder.
"PERSON" means any person or entity of any nature whatsoever, specifically
including an individual, a firm, a company, a corporation, a partnership, a
trust or other entity.
"PURCHASER" means each person other than the Company listed on the
signature pages of this Agreement as a party hereto.
"REGISTRABLE SECURITIES" means the Common Shares issued pursuant to the
terms of the Subscription Agreement and any stock or other securities into which
or for which such Common Shares may hereafter be changed, converted or exchanged
upon any reclassification, share combination, share subdivision, share dividend,
merger, consolidation or similar transactions or events; PROVIDED that any such
securities shall cease to be Registrable Securities if (i) a registration
statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been disposed
of in accordance with the plan of distribution set forth in such registration
statement or (ii) such securities shall have been transferred pursuant to Rule
144.
"REGISTRATION EXPENSES" means all reasonable expenses in connection with
any registration of securities pursuant to this Agreement including, without
limitation, the following: (i) SEC filing fees; (ii) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Registrable Securities to be disposed of under the
Securities Act; (iii) all expenses in connection with the preparation, printing
and filing of the registration statement, any preliminary prospectus or final
prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof to any stockholders, underwriters and dealers and all expenses
incidental to delivery of the Registrable Securities; (iv) the cost of producing
blue sky or legal investment memoranda; (v) all expenses in connection with the
qualification of the Registrable Securities to be disposed of for offering and
sale under state securities laws, including the reasonable fees and
disbursements of counsel for the underwriters and the Holders in connection with
such qualification and in connection with any blue sky and legal investments
surveys; (vi) the filing fees incident to securing any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Registrable Securities to be disposed of; (vii) transfer agents', depositories'
and registrars' fees and the fees of any other agent appointed in connection
with such offering; (viii) all security engraving and security printing
expenses; (ix) all fees and expenses payable in connection with the listing of
the Registrable Securities on each securities exchange or inter-dealer quotation
system on which a class of common equity securities of the Company is then
listed; (x) all reasonable out-of-pocket expenses of the Company incurred in
connection with road-show presentations, if any; (xi) courier, overnight
delivery, word processing, duplication, telephone and facsimile expenses; (xii)
any one-time payment for directors and officers insurance directly related to
such offering, provided the insurer provides a separate statement for such
payment and (xiii) the reasonable and documented fees and expenses of one law
firm for the Holders; PROVIDED, HOWEVER, that each Selling Holder shall pay (y)
all underwriting discounts, commissions, fees and expenses (including legal
expenses other than as provided above) of any person with respect to the
Registrable Securities sold by or on behalf of such Holders. In no event shall
the Company pay or be responsible for the fees and disbursements of counsel for
the underwriters in connection with any such registrations, except as provided
in clause (v) above.
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"REQUESTING HOLDER" shall have the meaning ascribed to such term in
Section 2.
"RULE 144" means Rule 144 promulgated under the Securities Act, or any
successor rule to similar effect.
"SEC" means the United States Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
successor statute.
"SELLING HOLDER" means any Holder selling Registrable Securities by means
of a registration statement pursuant to this Agreement.
"SUBSCRIPTION AGREEMENT" has the meaning set forth in the preamble to the
Agreement.
2. PIGGYBACK REGISTRATION. If at any time the Company proposes to
register any of its Common Shares or any other of its common equity securities
(collectively, "OTHER SECURITIES") under the Securities Act (other than a
registration (i) on Form S-4 or S-8 or any successor form thereto or (ii) filed
in connection with an offering of securities solely to the Company's existing
shareholders), whether or not for sale for its own account, in a manner which
would permit registration of Registrable Securities for sale for cash to the
public under the Securities Act, at each such time it will give prompt written
notice to each Holder of its intention to do so at least thirty (30) days prior
to the anticipated filing date of the registration statement relating to such
registration. Such notice shall offer each such Holder the opportunity to
include in such registration statement such number of Registrable Securities as
each such Holder may request. Upon the written request of any such Holder (each,
a "REQUESTING HOLDER") made within twenty (20) days after the receipt of the
Company's notice (which request shall specify the number of Registrable
Securities intended to be disposed of and the intended method of disposition
thereof), the Company shall use its Best Efforts to effect, in the manner set
forth in the applicable provisions of Section 4, in connection with the
registration of the Other Securities, the registration under the Securities Act
of all Registrable Securities which the Company has been so requested to
register, to the extent required to permit the disposition (in accordance with
such intended methods thereof) of the Registrable Securities so requested to be
registered, provided that:
(a) if, at any time after giving such written notice of its intention
to register any of its securities and prior to the effective date of the
registration statement filed in connection with such registration, the
Company shall determine for any reason not to register such securities, the
Company may, at its election, give written notice of such determination to
each Requesting Holder of Registrable Securities and thereupon shall be
relieved of its obligation to register any Registrable Securities in
connection with such registration (but not from its obligation to pay the
Registration Expenses in connection therewith as provided in Section 3);
(b) if the registration referred to in the first sentence of this
Section 2 is to be an underwritten registration on behalf of the Company or
on behalf of the holders of securities (other than Registrable Securities)
of the Company (the "OTHER HOLDERS"), and the managing underwriter
designated by the Company or
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the Other Holders, as applicable, advises the Company in writing that, in
such firm's good-faith opinion, marketing factors require a limitation on
the number or amount of shares to be underwritten, the Company shall
include in such registration: (1) first, all securities the Company or such
Other Holder whose exercise of registration rights is being satisfied by
such registration, as applicable, proposes to sell for its own account and
(2) second, up to such number or amount of securities (including
Registrable Securities) recommended by such managing underwriter, to the
Requesting Holders and such other additional persons seeking to participate
in such registration, allocated PRO RATA based on the number of shares
requested to be included by such additional persons; and
(c) in the event that any registration pursuant to this Section 2
shall involve, in whole or in part, an underwritten offering, each
Requesting Holder pursuant to this Section 2 hereby agrees to sell such
portion of its Registrable Securities to be registered pursuant to Section
2(a) to the managing underwriter(s) designated by the Company or the Other
Holders, as applicable, on the same terms and conditions that apply to the
Company and/or the Other Holders; PROVIDED, HOWEVER, that any such
Requesting Holder shall be permitted to withdraw all or part of the
Registrable Securities from such registration at any time prior to the
execution of the underwriting agreement relating thereto and PROVIDED
FURTHER, HOWEVER, the Requesting Holders shall only be required to make
representations and warranties and provide indemnity as is customary for
selling stockholders in similar registrations.
3. EXPENSES. The Company agrees to pay all Registration Expenses with
respect to any offerings pursuant to Section 2 hereof. In addition, but not in
duplication of, the foregoing, each Holder shall be entitled to reimbursement
from the Company for any out-of-pocket losses actually incurred in the event,
and only to the extent, that such Holder suffers such losses as a result of such
Holder's inability to make delivery of sold Registrable Securities due to the
Company's breach of its commitment to provide timely notice as required by
Section 4(a)(v).
4. REGISTRATION AND QUALIFICATION.
(a) If and whenever the Company is required to use its Best Efforts to
effect the registration of any Registrable Securities under the Securities Act
as provided in Section 2 hereof, the Company shall:
(i) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith
as may be necessary to comply with the provisions of the Securities Act
applicable to the Company with respect to the securities covered by such
registration statement;
(ii) furnish to the Selling Holder(s) and to any underwriter of such
Registrable Securities such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
including all exhibits) and such number of copies of the prospectus
included in such registration statement (including each preliminary
prospectus and any summary prospectus), in conformity with the requirements
of the Securities Act, and such other documents, as the Selling Holder(s)
or such underwriter may reasonably request in order to facilitate the
public sale of the Registrable Securities, and a copy of any
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and all transmittal letters or other correspondence to, or received from,
the SEC or any other governmental agency or self-regulatory body or other
body having jurisdiction (including any domestic or foreign securities
exchange) relating to such offering;
(iii) unless the exemption from state regulation of securities
offerings under Section 18 of the Securities Act applies, use its Best
Efforts to register or qualify all Registrable Securities covered by such
registration statement under the securities or blue sky laws of such
jurisdictions as the Selling Holders or any underwriter of such Registrable
Securities shall reasonably request; PROVIDED that the Company shall not be
required to (A) qualify generally to do business in any jurisdiction where
it would not otherwise be required to qualify but for this paragraph (iii),
(B) subject itself to taxation in any such jurisdiction or (C) consent to
general service of process in any such jurisdiction;
(iv) promptly notify the Selling Holders in writing (x) at any time
when a prospectus relating to a registration pursuant to Section 2 hereof
is required to be delivered under the Securities Act of the happening of
any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, and (y) of any request by the
SEC or any other regulatory body or other body having jurisdiction for any
amendment of or supplement to any registration statement or other document
relating to such offering, and in either such case (x) or (y) at the
request of the Selling Holders, subject to Section 3 hereof, prepare and
furnish to the Selling Holders a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall not include an untrue statement of
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading;
(v) use its Best Efforts to comply with all applicable rules and
regulations of the SEC and to make available to its securities holders, as
soon as reasonably practicable, an earnings statement covering the period
of at least twelve (12) months, but not more than eighteen (18) months,
beginning after the effective date of such registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act; and
(vi) furnish unlegended certificates representing ownership of the
Registrable Securities being sold in such denominations as shall be
requested by the Selling Holders or the underwriters, with expenses
therewith to be paid in accordance with Section 3 hereof.
(b) The Holder(s) of Registrable Securities on whose behalf
Registrable Securities are to be distributed by one or more underwriters shall
be parties to any underwriting agreements relating to the distribution of such
Registrable Securities.
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5. UNDERWRITING, DUE DILIGENCE.
(a) In the event that any registration pursuant to Section 2 shall
involve, in whole or in part, an underwritten offering, the Company may require
the Registrable Securities requested to be registered pursuant to Section 2 to
be included in such underwriting on the same terms and conditions as shall be
applicable to the other securities being sold through underwriters under such
registration. If requested by the underwriters for such underwritten offering,
the Holders on whose behalf the Registrable Securities are to be distributed
shall enter into an underwriting agreement with such underwriters, such
agreement to contain such representations and warranties by the Holders and such
other terms and provisions as are customarily contained in underwriting
agreements with respect to such distributions, including, without limitation,
indemnities and contribution substantially to the effect and to the extent
provided in Section 6 hereof. Such underwriting agreement shall also contain
such representations and warranties by the Company and such other person or
entity for whose account securities are being sold in such offering as are
customarily contained in underwriting agreements with respect to such
distributions.
(b) In connection with the preparation and filing of each registration
statement registering Registrable Securities under the Securities Act, the
Company shall give the Selling Holders and the underwriters, if any, and their
respective counsel and accountants, such reasonable and customary access to its
books and records and such opportunities to discuss the business of the Company
with its officers and the independent public accountants who have certified the
Company's financial statements as shall be necessary, in the opinion of such
Selling Holders and such underwriters or their respective counsel, to conduct a
reasonable investigation within the meaning of the Securities Act.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) In the case of any registration of any Registrable Securities
under the Securities Act pursuant to Sections 2 of this Agreement, the Company
agrees to indemnify and hold harmless each Selling Holder, its officers and
directors, each underwriter of Registrable Securities so offered and each
person, if any, who controls any of the foregoing persons within the meaning of
the Securities Act, from and against any and all losses, claims, damages,
expenses, judgments or liabilities, joint or several, to which they or any of
them may become subject, under the Securities Act or otherwise, including any
amount paid in settlement of any litigation commenced or threatened, and shall
promptly reimburse them, as and when incurred, for any reasonable legal or other
expenses incurred by them in connection with investigating any claims and
defending any actions, insofar as such losses, claims, damages, expenses,
judgments or liabilities shall arise out of, or shall be based upon, any untrue
statement or alleged untrue statement of a material fact contained in the
registration statement on the effective date thereof (including any prospectus
filed under Rule 424 of the Securities Act) or any amendment thereof or
supplement thereto, or in any document incorporated by reference therein, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading;
PROVIDED, HOWEVER, that the Company shall not be liable to the Selling Holders
in any such case to the extent that any such loss, claim, damage, expense,
judgment or liability arises out of, or is based upon, any untrue statement or
alleged untrue statement, or any omission, if such statement or omission shall
have been made in reliance upon and in conformity with information
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relating to the Selling Holder(s) furnished to the Company in writing by or on
behalf of any Selling Holder specifically for use in the preparation of the
registration statement (including any prospectus filed under Rule 424 of the
Securities Act) or any amendment thereof or supplement thereto. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of a Selling Holder and shall survive the transfer of such securities.
The foregoing indemnity agreement is in addition to any liability which the
Company may otherwise have to each Selling Holder, its officers and directors,
underwriters of the Registrable Securities or any controlling person of the
foregoing.
(b) In the case of any registration of any Registrable Securities
under the Securities Act pursuant to Section 2 of this Agreement, each Selling
Holder agrees to indemnify and hold harmless the Company, its officers and
directors and each person, if any, who controls any of the foregoing within the
meaning of the Securities Act (and if requested by the underwriters, each
underwriter who participates in the offering and each person, if any, who
controls any such underwriter within the meaning of the Securities Act), from
and against any and all losses, claims, damages, expenses, judgments or
liabilities, joint or several, to which they or any of them may become subject
under the Securities Act or otherwise, including any amount paid in settlement
of any litigation commenced or threatened, and shall promptly reimburse them, as
and when incurred, for any legal or other expenses incurred by them in
connection with investigating any claims and defending any actions, insofar as
any such losses, claims, damages, expenses, judgments or liabilities shall arise
out of, or shall be based upon, any untrue statement or alleged untrue statement
of a material fact relating to such Selling Holder contained in the registration
statement on the effective date thereof (including any prospectus filed under
Rule 424 of the Securities Act) or any amendment thereof or supplement thereto,
or any omission or alleged omission to state therein a material fact relating to
such Selling Holder required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to the extent that such
untrue statement or alleged untrue statement or omission or alleged omission
relating to such Selling Holder was made in reliance upon information relating
to such Selling Holder furnished to the Company in writing by or on behalf of
such Selling Holder specifically for use in the preparation of such registration
statement (including any prospectus filed under Rule 424 of the Securities Act);
PROVIDED, HOWEVER, that in no event shall any Selling Holder be liable for any
amount in excess of the net proceeds received from the sale of the Registrable
Securities by such Selling Holder in the subject offering. The foregoing
indemnity is in addition to any liability which any Selling Holder may otherwise
have to the Company, or any of its directors, offices or controlling persons.
(c) PROCEDURE FOR INDEMNIFICATION. Each party indemnified under
paragraph (a) or (b) of this Section 6 shall, promptly after receipt of notice
of any claim or the commencement of any action against such indemnified party in
respect of which indemnity may be sought, notify the indemnifying party in
writing of the claim or the commencement thereof; PROVIDED that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party on account of the indemnity agreement contained
in paragraph (a) or (b) of this Section 6, except to the extent the indemnifying
party was prejudiced by such failure, and in no event shall relieve the
indemnifying party from any other liability which it may have to such
indemnified party. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein, and, to the extent
that it wishes, jointly with any other similarly
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notified indemnifying party, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; PROVIDED that each
indemnified party, its officers and directors, if any, and each person, if any,
who controls such indemnified party within the meaning of the Securities Act,
shall have the right to employ separate counsel reasonably approved by the
indemnifying party to represent them if the named parties to any action
(including any impleaded parties) include both such indemnified party and an
indemnifying party or an affiliate of an indemnifying party, and such
indemnified party shall have been advised by counsel either (i) that there may
be one or more legal defenses available to such indemnified party that are
different from or additional to those available to such indemnifying party or
such affiliate or (ii) a conflict may exist between such indemnified party and
such indemnifying party or such affiliate, and in that event the fees and
expenses of one such separate counsel for all such indemnified parties shall be
paid by the indemnifying party. An indemnified party will not enter into any
settlement agreement which is not approved by the indemnifying party, such
approval not to be unreasonably withheld. The indemnifying party may not agree
to any settlement of any such claim or action which provides for any remedy or
relief other than monetary damages for which the indemnifying party shall be
responsible hereunder, without the prior written consent of the indemnified
party, which consent shall not be unreasonably withheld. In any action hereunder
as to which the indemnifying party has assumed the defense thereof with counsel
reasonably satisfactory to the indemnified party, the indemnified party shall
continue to be entitled to participate in the defense thereof, with counsel of
its own choice, but, except as set forth above, the indemnifying party shall not
be obligated hereunder to reimburse the indemnified party for the costs thereof.
In all instances, the indemnified party shall cooperate fully with the
indemnifying party or its counsel in the defense of each claim or action.
If the indemnification provided for in this Section 6 shall for any
reason be unavailable to an indemnified party in respect of any loss, claim,
damage, expense, judgment or liability, or any action in respect thereof,
referred to herein, then each indemnifying party shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage, expense, judgment or
liability in respect thereof, or action in respect thereof, in such proportion
as shall be appropriate to reflect the relative fault of the indemnifying party
on the one hand and the indemnified party on the other with respect to the
statements or omissions which resulted in such loss, claim, damage, expense,
judgment or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party on the one hand or the indemnified party on
the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission,
but not by reference to any indemnified party's stock ownership in the Company.
In no event, however, shall a Selling Holder be required to contribute in excess
of the amount of the net proceeds received by such Selling Holder in connection
with the sale of Registrable Securities in the offering which is the subject of
such loss, claim, damage or liability. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage, expense, judgment or
liability, or action in respect thereof, referred to above in
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this paragraph shall be deemed to include, for purposes of this paragraph, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claims. 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.
7. RULE 144. The Company shall take such measures and file such
information, documents and reports to be filed by it under the Securities Act
and the Exchange Act and the rules and regulations adopted by the SEC thereunder
and will take such further action as any Holder of Registrable Securities may
reasonably request, all to the extent necessary or desirable from time to time
to enable such Holder to sell Registrable Securities without registration under
the Securities Act within the limitation of the exemptions provided by Rule 144.
Upon the request of any Holder of Registrable Securities, the Company will
deliver to such Holder a written statement, certified by an authorized executive
officer of the Company, as to whether the Company has complied with such
requirements. The Company shall have no obligation to effect a registration of
Registrable Securities pursuant to Section 2 hereof if such Registrable
Securities may be sold without registration under the Securities Act within the
limitation of the exemption provided by Rule 144(k).
8. HOLDBACK. Each of the Company and the Selling Holders agrees, if so
required in writing by the managing underwriter, not to sell, make any short
sale of, loan, grant any option for the purchase of (other than pursuant to
employee benefit plans), effect any public sale or distribution of or otherwise
dispose of the Company's equity securities or securities convertible into or
exchangeable or exercisable for any such securities, during the 30 days prior to
and the 90 days after any underwritten registration pursuant to Section 2 hereof
(in which such Selling Holder is offering Registrable Securities) has become
effective, except as part of such underwritten registration and except, in the
case of the Company, pursuant to registrations on Form S-4 or S-8 or any
successor form thereto.
9. TRANSFER OF REGISTRATION RIGHTS.
(a) A Holder may transfer all or any portion of its rights under this
Agreement only to a Permitted Transferee. The Holder making such transfer shall
promptly notify the Company in writing stating the name and address of any
Permitted Transferee and identifying the amount of Registrable Securities with
respect to which the rights under this Agreement are being transferred and the
nature of the rights so transferred. In connection with any such transfer, the
term "Holder" as used in this Agreement shall, where appropriate to assign the
rights and obligations of a Holder hereunder to such Permitted Transferee, be
deemed to refer to the Permitted Transferee, as holder of such Registrable
Securities.
(b) After any such transfer, the Holder making such transfer shall
retain its rights under this Agreement with respect to all other Registrable
Securities still owned by such Holder.
(c) Upon the request of the Holder making such transfer, the Company
shall execute a Registration Rights Agreement with such Permitted Transferee or
a proposed Permitted Transferee substantially similar to this Agreement.
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10. MISCELLANEOUS.
(a) INJUNCTIONS. Each party acknowledges and agrees that irreparable
damage would occur in the event that any of the provisions of this Agreement was
not performed in accordance with its specific terms or was otherwise breached.
Therefore, each party shall be entitled to seek an injunction or injunctions to
prevent breaches of the provisions of this Agreement and to enforce specifically
the terms and provisions hereof in any court having jurisdiction, such remedy
being in addition to any other remedy to which such party may be entitled at law
or in equity.
(b) SEVERABILITY. If any term or provision of this Agreement shall be
held by a court of competent jurisdiction to be invalid, void or unenforceable,
the remainder of the terms and provisions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
each of the parties shall use its Best Efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term or provision.
(c) FURTHER ASSURANCES. Subject to the specific terms of this
Agreement, each of the parties hereto shall make, execute, acknowledge and
deliver such other instruments and documents, and take all such other actions,
as may be reasonably required in order to effectuate the purposes of this
Agreement and to consummate the transactions contemplated hereby.
(d) WAIVERS, ETC. No failure or delay on the part of either party (or
the intended third-party beneficiaries referred to herein) in exercising any
power or right hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power preclude any other or
further exercise thereof or the exercise of any other right or power. No
modification or waiver of any provision of this Agreement nor consent to any
departure therefrom shall in any event be effective unless the same shall be in
writing and signed by an authorized officer of each of the parties, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given.
(e) ENTIRE AGREEMENT. This Agreement contains the entire understanding
of the parties with respect to its subject matter. This Agreement supersedes all
prior agreements and understandings between the parties, whether written or
oral, with respect to the subject matter hereof. The paragraph headings
contained in this Agreement are for reference purposes only, and shall not
affect in any manner the meaning or interpretation of this Agreement.
(f) COUNTERPARTS. For the convenience of the parties, this Agreement
may be executed in any number of counterparts, each of which shall be deemed to
be an original but all of which together shall be one and the same instrument.
(g) AMENDMENT. This Agreement may be amended only by a written
instrument duly executed by an authorized officer of the Company and an
authorized officer of each Holder.
(h) NOTICES. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given
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when received if delivered personally, on the next business day if sent by
overnight courier for next business day delivery (providing proof of delivery),
when confirmation is received, if sent by facsimile or in five business days if
sent by U.S. registered or certified mail, postage prepaid (return receipt
requested) to the other parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
(i) if to the Company, to:
White Mountains Insurance Group, Ltd.
00 Xxxxx Xxxxxx
Xxxxx Xxxxx Xxxxxxxx, XX 00000
Attention: Corporate Secretary
Facsimile: (000) 000-0000
(ii) if to the Purchasers, at the address set forth below each
Purchaser's name on the signature pages hereto.
(i) GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York regardless of the laws
that might otherwise govern under applicable principles of conflicts of laws
thereof.
(j) TERM. This Agreement shall remain in full force and effect until
there are no Registrable Securities outstanding or until terminated by the
mutual agreement of the parties hereto.
(k) ASSIGNMENT. Except as provided herein, the parties may not assign
their rights under this Agreement. This Agreement shall be binding upon and
inure to the benefit of successors to the parties hereto.
(l) PRIORITY OF RIGHTS. The Purchasers agree that the rights granted
hereunder are expressly made subject to the rights of the "Holders" under the
Registration Rights Agreement dated as of May 30, 2001 between the Company and
Berkshire Hathaway Inc. in a manner consistent with such agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their authorized representative as of the date first above
written.
WHITE MOUNTAINS INSURANCE GROUP, LTD.
by:
------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Corporate Secretary
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HIGHFIELDS CAPITAL I LP
By: HIGHFIELDS ASSOCIATES LLC, its General Partner
by:
------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Managing Member
HIGHFIELDS CAPITAL II LP
By: HIGHFIELDS ASSOCIATES LLC, its General Partner
by:
------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Managing Member
HIGHFIELDS CAPITAL LTD.
By: HIGHFIELDS CAPITAL MANAGEMENT LP, its
Investment Manager
by:
------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Member of Highfields GP LLC,
General Partner of the Investment Manager
Address: 000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
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