Exhibit 4.5
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
AMONG
XXXXXX CORPORATION
XXXXXX HOLDINGS INC.
AND
DLJ INTERNATIONAL PARTNERS, C.V.
DLJ OFFSHORE PARTNERS, C.V.
DLJMB OVERSEAS PARTNERS, C.V.
DLJ MERCHANT BANKING FUNDING, INC.
DLJ FIRST ESC, X.X.
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
AND
XXXXX & MCLENNAN CAPITAL, INC.
AND
XXXX X. XXXXX
Dated as of January 28, 2000
TABLE OF CONTENTS
PAGE
----
SECTION 1. Definitions........................................................................ 2
SECTION 2. Registration under Securities Act.................................................. 4
SECTION 3. Other Registration Rights.......................................................... 17
SECTION 4. Xxxxxx Guarantee................................................................... 17
SECTION 5. Amendments and Waivers............................................................. 17
SECTION 6. Notices............................................................................ 17
SECTION 7. Binding Agreement.................................................................. 18
SECTION 8. Descriptive Headings............................................................... 19
SECTION 9. Specific Performance............................................................... 19
SECTION 10. Effectiveness..................................................................... 19
SECTION 11. Termination....................................................................... 19
SECTION 12. Governing Law..................................................................... 19
SECTION 13. Counterparts...................................................................... 19
SECTION 14. Entire Agreement.................................................................. 19
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is made as of August 15, 1999, as
amended and restated as of January 28, 2000, by and among XXXXXX CORPORATION, a
Virginia corporation ("Xxxxxx"), XXXXXX HOLDINGS INC., a Virginia corporation
(the "Company"), DLJ INTERNATIONAL PARTNERS, C.V., a Netherlands Antilles
limited partnership, DLJ OFFSHORE PARTNERS, C.V., a Netherlands Antilles limited
partnership, DLJMB OVERSEAS PARTNERS, C.V., a Netherlands Antilles limited
partnership, DLJ MERCHANT BANKING FUNDING, INC., a Delaware corporation, DLJ
FIRST ESC, L.P., a Delaware limited partnership and XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION, a Delaware corporation (collectively, the "DLJ
Entities"), XXXXX & MCLENNAN CAPITAL, INC., a Delaware corporation, on behalf of
itself and/or XXXXX & XXXXXXXX RISK CAPITAL HOLDINGS, LTD., a Delaware
corporation, other related Xxxxx & McLennan Capital, Inc. entities and/or RISK
CAPITAL REINSURANCE COMPANY, a Nebraska domiciled insurance company
(collectively, "Marsh") and XXXX X. XXXXX, on his own behalf and on behalf of
certain entities as to which, with respect to Common Shares held by such
entities, he has voting and dispositive power ("Xxxxx").
A On August 15, 1999, Xxxxxx and Terra Nova (Bermuda) Holdings
Ltd., a Bermuda corporation ("TNA"), entered into an Agreement and Plan of
Merger and Scheme of Arrangement, which was subsequently amended on December 10,
1999 and January 28, 2000 (as so amended, the "Merger Agreement").
B The Merger Agreement provides for (i) the merger (the
"Merger") of Xxxxxx Holdings Sub Ltd., a corporation organized under the laws of
Virginia and a wholly-owned subsidiary of the Company, with and into Xxxxxx and
(ii) a Scheme of Arrangement between TNA and certain of its shareholders (the
"Scheme"). Pursuant to the Merger Agreement, each holder of an ordinary share of
TNA will receive in the Merger $13.00 in cash, .07027 ordinary shares of the
Company, no par value (the "Common Shares"), and .07027 of a contingent value
right (a "CVR"), and will become shareholders of the Company. Each CVR will
grant the holder thereof, subject to certain exceptions, the right to receive,
on the date that is 30 months following consummation of the Merger and the
Scheme, the amount, if any, by which $185 exceeds the greater of (i) the average
trading price of a Common Share, calculated as set forth in the Agreement and
(ii) $140. Upon consummation of the Merger and the Scheme, TNA and Xxxxxx will
be wholly-owned subsidiaries of the Company, which, at such time, will change
its name to Xxxxxx Corporation.
C TNA and the DLJ Entities are parties to that certain
Registration Rights Agreement dated as of March 25, 1996, among TNA and certain
of its stockholders, pursuant to which such stockholders were accorded certain
registration rights with respect to the ordinary shares of TNA held by them (the
"TNA Registration Rights Agreement").
D The parties hereto now desire to amend and restate the
Registration Rights Agreement dated as of August 15, 1999 in its entirety.
In consideration of the parties entering into the agreements and
carrying out the transactions herein described, and for other good and valuable
consideration, the parties agree as follows:
Section 1. Definitions. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such Person; provided that no stockholder of the Company shall be deemed an
Affiliate of any other stockholder of the Company solely by reason of any
investment in the Company. For the purpose of this definition, the term
"control" (including with correlative meanings, the terms "controlling",
"controlled by" and "under common control with"), when used with respect to any
Person, means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise.
"Board" means the Board of Directors of the Company.
"Commission" means the Securities and Exchange Commission or any other
United States agency at the time administering the Securities Act.
"Contingent Value Rights Agreement" means that certain Contingent Value
Rights Agreement relating to the CVRs between the parties listed on the
signature pages thereto, as such agreement may be subsequently amended or
supplemented by the parties thereto.
"Exchange Act" means the Securities Exchange Act of 1934, or any
similar United States statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Person" means an individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an unincorporated
organization and a government or any department or agency thereof.
2
"Permitted Transferee" means, in the case of any DLJ Entity, (A) any
other DLJ Entity, (B) any general or limited partner of any DLJ Entity (a "DLJ
Partner"), and any corporation, partnership, Affiliated Employee Benefit Trust
or other entity that is an Affiliate of any DLJ Partner (collectively, the "DLJ
Affiliates"), (C) any managing director, general partner, director, limited
partner, officer or employee of Xxxxxxxxx, Xxxxxx & Xxxxxxxx, Inc. or any entity
controlled by Xxxxxxxxx, Lufkin & Xxxxxxxx, Inc., or the heirs, executors,
administrators, testamentary trustees, legatees or beneficiaries of any of the
foregoing persons referred to in this clause (C) (collectively, "DLJ
Associates"), (D) a trust, the beneficiaries of which, or a corporation, limited
liability company or partnership, the stockholders, members or general or
limited partners of which, include only XXX Xxxxxxxx, XXX Xxxxxxxxxx, XXX
Associates, their spouses or their lineal descendants or (E) a voting trustee
for one or more DLJ Entities, DLJ Affiliates or DLJ Associates under the terms
of a voting trust designated to conform with the requirements of the Insurance
Law of the State of New York.
"Registrable Securities" means (i) any outstanding Common Shares held
by any Stockholder, (ii) any outstanding CVRs held by any Stockholder and (iii)
any securities issued with respect to any such Common Shares or CVRs by way of
stock dividend or stock split. As to any particular Registrable Securities, such
securities shall cease to be Registrable Securities (i) when 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
distributed in accordance with such registration statement, (ii) when such
securities have been distributed to the public pursuant to Rule 144 (or any
successor provision) under the Securities Act, (iii) when such securities shall
have been otherwise transferred, except as contemplated by Section 7 of this
Agreement, or (iv) when such securities shall have ceased to be outstanding. In
addition, as to any Registrable Securities which are CVRs, such CVRs shall cease
to be Registrable Securities upon the earlier to occur of (A) the date such CVRs
cease to be Registrable Securities pursuant to the preceding sentence and (B)
the full and complete satisfaction by the Company of all of its obligations with
respect to such CVRs pursuant to the terms and conditions of the Contingent
Value Rights Agreement.
"Registration Expenses" means (i) all registration, filing and NASD
fees, (ii) fees and expenses of complying with securities or blue sky laws
(including reasonable fees and disbursements of counsel in connection with blue
sky qualifications of the shares covered by such registration), (iii) printing
expenses, (iv) internal expenses of the Company (including all salaries and
expenses of its officers and employees performing legal and accounting duties),
(v) reasonable fees and disbursements of counsel for the Company and of its
independent certified public accountants, including the expenses relating to
"cold comfort" letters requested pursuant thereto, (vi) not more than $25,000 of
reasonable fees and disbursements of one counsel for the Stockholders in
connection with their participation in any offering, (vii) the reasonable fees
and
3
expenses of special experts retained by the Company in connection with such
registration, premiums and other costs of policies of insurance against
liabilities arising out of the public offering of the Registrable Securities
being registered (if the Company elects to obtain any such insurance), and
(viii) any fees and disbursements of underwriters customarily paid by issuers or
sellers of securities, but excluding underwriting discounts and commissions and
transfer taxes, if any, and the fees and expenses of counsel for the
underwriters.
"Requesting Holder" means, in respect of any registration pursuant to
Section 2 hereof, any holder of Registrable Securities who gives notice to the
Company of its request to include Registrable Securities in such registration.
"Rule 144" means Rule 144 promulgated by the Commission under the
Securities Act as such rule may be amended from time to time, or any similar
rule then in force.
"Securities Act" means the Securities Act of 1933, or any similar
United States statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Stockholders" means any of the DLJ Entities, Xxxxx or Marsh, acting on
behalf of itself, other related Xxxxx & McLennan Capital, Inc. entities and/or
Xxxxx & XxXxxxxx Risk Capital Holdings, Ltd. and/or Risk Capital Reinsurance
Company.
Section 2. Registration under Securities Act
(a) Registration on Request
(i) Request. If at any time any DLJ Entity or Marsh requests
in writing (the requesting Person being referred to as the "Initiating
Stockholder") that the Company effect the registration under the
Securities Act of a specified number of the Registrable Securities held
by it and specifying the intended method of disposition thereof, a copy
of which request (the "Company Notice") shall be sent by the Company to
the other Persons entitled to request registration under this Section
2(a) that have not made such registration request (the "Other
Stockholders"), the Company will, in accordance with the provisions of
Section 2(c) hereof, use its commercially reasonable efforts to effect
the registration under the Securities Act of the Registrable Securities
which the Company has been so requested to register by the Initiating
Stockholder and any Registrable Securities of the same class and type
which the Company has been so requested to register by any Other
Stockholders, so long as such
4
Other Stockholders have requested that such Registrable Securities be
included in such registration within 10 days of the date of the Company
Notice, for disposition in accordance with the intended method or
methods of disposition stated in the request by the Initiating
Stockholder, all to the extent requisite to permit the disposition (in
accordance with the intended methods thereof as aforesaid) of
Registrable Securities to be so registered; provided that the Company
shall not be required to effect (A) more than three registrations
requested by the DLJ Entities pursuant to this Section 2(a), (B) more
than two registrations requested by Marsh pursuant to this Section
2(a), (C) any registration under this Section 2(a) unless the
Registrable Securities requested to be included therein by the
Initiating Stockholder, in the reasonable judgment of the Board
exercised in good faith, have an aggregate fair market value of at
least $25,000,000, or unless the Registrable Securities requested to be
included therein constitute all of the Registrable Securities of the
class and type of Registrable Securities requested to be so registered
that are then owned by the Initiating Stockholder (and, in case of any
DLJ Entity, all other DLJ Entities), it being understood that if the
Registrable Securities requested to be registered by any Initiating
Stockholder (i) have an aggregate fair market value of less than
$25,000,000 and (ii) include both Common Shares and CVRs, the
requirements of this paragraph (C) shall be deemed to be satisfied if
the Registrable Securities of at least one of the class and type of
Registrable Securities requested to be included therein by such
Initiating Stockholder constitute all of the Registrable Securities of
that class and type of Registrable Securities then owned by the
Initiating Stockholder (and, in the case of any DLJ Entity, all other
DLJ Entities) or (D) any registration under this Section 2(a) prior to
the earlier of the date that is six months after the effective date of
the Company's most recent registration statement (other than a
registration on Form S-4 or Form S-8 or any successor or similar forms)
pursuant to which Registrable Securities are to be or were sold
pursuant to this Section 2(a) or the date that is three months after
the effective date of the Company's most recent registration statement
(other than a registration on Form S-4 or Form S-8 or any successor or
similar forms) pursuant to which the DLJ Entities or Marsh were
entitled to request that Registrable Securities be sold pursuant to
Section 2(b). Any request by an Initiating Stockholder pursuant to the
first sentence of this Section 2(a) shall indicate that such Initiating
Stockholder intends, in good faith, to dispose of all of the
Registrable Securities as to which a request is made pursuant to this
Section 2(a) pursuant to an underwritten public offering; provided that
such intention shall not preclude a change to the plan of distribution
to allow block trades, it being understood that no such change may be
made with the intention of converting such registration into the
functional equivalent of an "equity shelf." A request to register
Registrable Securities pursuant to this Section 2(a) that is made by
any DLJ Entity or Xxxxx, as the case may be, in its capacity as an
"Other Stockholder" shall not reduce the number
5
of registrations available to such entity pursuant to paragraph (A) or
(B), as the case may be, of this Section 2(a)(i).
(ii) Effective Registration Statement. A registration
requested pursuant to this Section 2(a) shall not be deemed to be
effected pursuant to Section 2(a) (A) if a registration statement with
respect thereto shall not have become effective and remained effective
for a period of at least 180 days (or such shorter period in which the
Registrable Securities included in such registration pursuant to
Section 2(a) have been sold thereunder), (B) if, after it has become
effective, such registration is interfered with for any reason by any
stop order, injunction or other order or requirement of the Commission
or any other governmental agency or any court, and the result of such
interference is to prevent the holders of Registrable Securities to be
sold thereunder from disposing of at least 75% of the Registrable
Securities included in such registration pursuant to Section 2(a) in
accordance with the intended methods of disposition or (C) if the
conditions to closing specified in the purchase agreement or
underwriting agreement entered into in connection with any underwritten
registration shall not be satisfied or waived with the consent of the
holders of Registrable Securities that were to have been sold
thereunder, other than as a result of any breach by any holder of its
obligations thereunder or hereunder.
(iii) Expenses. The Company shall pay all Registration Expenses
in connection with any registration requested pursuant to this Section
2(a).
(iv) Priority in Requested Registrations. If a requested
registration pursuant to this Section 2(a) involves an underwritten
offering, and the managing underwriter shall advise the Company in
writing that, in its view, (i) the number of securities requested,
pursuant to this Section 2(a), to be included in such registration
(including Common Shares and CVRs which the Company proposes to
include, whether or not for the sale for its own account, which are not
Registrable Securities) or (ii) the inclusion of some or all of the
Common Shares and CVRs owned by other shareholders of the Company
(including Registrable Securities proposed to be included by any
Stockholder pursuant to Section 2(b)), in either case, exceeds the
number which can be sold in such offering without having an adverse
impact on such offering, including the price at which such securities
can be sold (the "Maximum Offering Size"), the Company will include in
such registration, in the priority listed below, up to the Maximum
Offering Size (A) first, Registrable Securities requested, pursuant to
this Section 2(a), to be included in such registration by the DLJ
Entities and Xxxxx, as the case may be, (pro rata as between them based
on the number of Registrable Securities proposed to be so registered)
and (B) second, Common Shares and/or CVRs requested to be included in
such registration by the Company for its own account, by
6
Xxxxx pursuant to Section 2(b) or by any other holder of Common Shares
and/or CVRs having registration rights, in the case of this paragraph
(B), pro rata among such holders on the basis of the number of Common
Shares and/or CVRs requested to be so registered; provided that if, as
a result of any reduction in Common Shares and/or CVRs to be sold as
contemplated by this Section 2(a)(iv), the Initiating Stockholder is
entitled to sell pursuant to such registration less than 65% of the
Registrable Securities requested to be included pursuant to Section
2(a), the request by the Initiating Stockholder that initiated such
registration shall not reduce the number of registrations available to
the Initiating Stockholder pursuant to paragraph (A) or (B), as the
case may be, of Section 2(a)(i).
(b) Incidental Registration.
(i) Right to Include Registrable Securities. If the Company at
any time proposes to register any Common Shares or CVRs under the
Securities Act, whether for its own account or the account of a third
party (other than by a registration (A) on Form S-4 or S-8 or any
successor or similar forms, (B) relating to Common Shares issuable upon
exercise of employee stock options or in connection with any employee
benefit plan or (C) in connection with any direct or indirect exchange
offer, amalgamation, merger, acquisition or similar transaction whether
or not for sale for its own account), the Company will at each such
time give prompt written notice to the Stockholders of its intention to
do so and of such holders' rights under this Section 2(b). Upon the
written request of any holder of Registrable Securities of the same
class and type of securities which the Company proposes to register,
made within 10 days after the receipt of any such notice (which request
shall specify the Registrable Securities intended to be disposed of by
such holder and the intended method of disposition thereof), the
Company will, subject to the provisions of paragraph (iii) of this
Section 2(b), use its reasonable efforts to effect the registration
under the Securities Act of all Registrable Securities which the
Company has been so requested to register by the holders thereof, to
the extent requisite to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities so
to be registered; provided that (i) if such registration involves an
underwritten offering, all such holders of Registrable Securities
requesting to be included in such registration must enter into the
underwriting agreement as contemplated by Section 2(d) hereof and (ii)
if, at any time after giving written notice of its intention to
register any securities pursuant to this Section 2(b) 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 or to delay registration of such securities, the Company may,
at its election, give written notice of such determination to all such
shareholders and, thereupon, (A) in the case of a determination not to
register, shall be
7
relieved of its obligation to register any Registrable Securities in
connection with such registration and (B) in the case of a
determination to delay registering, shall be permitted to delay
registering any Registrable Securities, for the same period as the
delay in registering such other securities.
(ii) Expenses. The Company shall pay all Registration Expenses
in connection with any registration requested pursuant to this Section
2(b).
(iii) Priority in Incidental Registrations. If a registration
pursuant to this Section 2(b) involves an underwritten offering (other
than in the case of a registration under Section 2(a)), and the
managing underwriter shall advise the Company in writing, that, in its
opinion, the number of securities requested and otherwise proposed to
be included in such registration exceeds the Maximum Offering Size, the
Company will include in such registration, in the following priority,
up to the Maximum Offering Size, (1) first, the securities proposed to
be issued by the Company, (2) second, all Registrable Securities
proposed to be registered for the account of the Stockholders and
requested to be included in such registration, pro rata in accordance
with the number of Registrable Securities proposed to be registered by
such Stockholders and (3) third, all Common Shares and CVRs proposed to
be registered for the account of other Persons, if any, having
registration rights granted after the date hereof and requested to be
included in such registration (whether or not such request arises from
a demand registration right granted to such person), pro rata in
accordance with the number of Common Shares and CVRs proposed to be
registered by such other Persons, or otherwise allocated among such
Persons in such proportion as such Persons and the Company shall agree.
Notwithstanding the foregoing, after the 18 month anniversary of the
Closing Date, the Persons referred to in clauses (2) and (3) shall
include Common Shares and CVRs in any registration pursuant to this
Section 2(b) pro rata in accordance with the number of Common Shares
and CVRs requested to be included in such registration by all such
Persons; provided that if, after such 18 month anniversary, a request
pursuant to this Section 2(b) occurs in respect of an underwritten
offering made at the request of any other Person pursuant to
registration rights granted to such Person after the date hereof in
connection with the issuance by the Company of securities, and the
managing underwriter has advised the Company in writing, that, in its
opinion, the number of securities requested and otherwise proposed to
be included in such registration exceeds the Maximum Offering Size, the
Company will include in such registration, in the following priority,
up to the Maximum Offering Size, (1) first, the securities proposed to
be registered by such Person and (2) second, all Common Shares and CVRs
proposed to be registered for the account of other Persons (including
the Stockholders), if any, requested to be included in such
registration pro rata in accordance
8
with the numbers of other securities proposed to be registered by the
other Persons or otherwise allocated among such other Persons in such
proportion as such holders and the Company shall agree.
(c) Registration Procedures. If and whenever the Company is required
to use its reasonable efforts to effect the registration of any Registrable
Securities under the Securities Act as provided in Section 2(a) or Section 2(b)
the Company will as expeditiously as practicable:
(i) prepare and file with the Commission the requisite
registration statement to effect such registration and thereafter use
its commercially reasonable efforts to cause such registration
statement to become effective; provided that the Company may postpone
the filing or effectiveness of a registration for a reasonable period
not to exceed 90 days from the date of the request, if the Board
reasonably believes that such registration might reasonably be expected
to have an adverse effect on any proposal or plan to engage in any
acquisition of assets or capital stock or any amalgamation, merger,
consolidation, tender offer or similar transaction; or would otherwise
require disclosure of information which the Board in its reasonable
judgement determines should not be disclosed; provided further that no
more than one postponement under this clause (i) or termination under
clause (ii) below may be imposed in any twelve-month period.
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement continuously effective for a period of either (A) 180 days
(without including in such period the number of days in any Delay
Period (as hereinafter defined)) or (B) such shorter period as will
terminate when all of the securities covered by such registration
statement have been disposed of in accordance with the intended methods
of disposition by the seller or sellers thereof set forth in such
registration statement (but in any event not before the expiration of
any longer period required under the Securities Act), and to comply
with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement;
provided that the Company may terminate the effectiveness of a
registration if the Board reasonably believes that such registration
would reasonably be expected to have an adverse effect on any proposal
or plan to engage in any acquisition of assets or capital stock or any
amalgamation, merger, consolidation, tender offer or similar
transaction or would otherwise require disclosure of information which
the Board determines in its reasonable judgement should not be
disclosed;
(iii) furnish to each Requesting Holder such number of
conformed copies of such registration statement and of each such
9
amendment and supplement thereto (in each case including all exhibits,
but only one copy thereof to each such Requesting Holder), such number
of copies of the prospectus contained in such registration statement
(including each preliminary prospectus and any summary prospectus) and
any other prospectus filed under Rule 424 under the Securities Act, in
conformity with the requirements of the Securities Act, and such other
documents in order to facilitate the disposition of the Registrable
Securities owned by such Requesting Holder, as such Requesting Holder
may reasonably request;
(iv) use its commercially reasonable efforts to register or
qualify such Registrable Securities and other securities covered by
such registration statement under such other securities or blue sky
laws of such jurisdictions as each seller thereof shall reasonably
request, to keep such registration or qualification in effect for so
long as such registration statement remains in effect, and to take any
other action which may be reasonably necessary or advisable to enable
such seller to consummate the disposition in such jurisdictions of the
securities owned by such seller; provided that the Company shall not
for any such purpose be required to (A) qualify generally to do
business as a foreign corporation in any jurisdiction where it would
not otherwise be required to qualify but for the requirements of this
clause (iv), (B) consent to general service of process in any such
jurisdiction or (C) subject itself to taxation in such jurisdiction;
(v) use its commercially reasonable efforts to cause all
Registrable Securities covered by such registration statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary by virtue of the business and
operations of the Company to enable the seller or sellers thereof to
consummate the disposition of such Registrable Securities;
(vi) promptly notify each seller of Registrable Securities, at
any time when a prospectus relating thereto is required to be delivered
under the Securities Act, upon discovery that, or upon the discovery 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 not misleading in the light of the circumstances under which
they were made, and at the request of any such seller promptly prepare
and furnish to such seller 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 securities,
such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
10
necessary to make the statements therein not misleading in the light of
the circumstances under which they were made;
(vii) otherwise use its commercially reasonable efforts to
comply with all applicable rules and regulations of the Commission, and
make available to its security holders, as soon as reasonably
practicable, an earnings statement covering a period of at least twelve
months, but not more than eighteen months, beginning with the first
full calendar month after the effective date of such registration
statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act; and
(viii) use its commercially reasonable efforts to cause all
such Registrable Securities covered by such registration statement to
be listed on any national securities exchange (if such Registrable
Securities are not already so listed), and on each other securities
exchange, on which similar securities issued by the Company are then
listed, if the listing of such Registrable Securities is then permitted
under the rules of such exchange.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish promptly to the Company such
information regarding such seller and such seller's Registrable Securities as
the Company may from time to time reasonably request and such other information
as may be legally required in connection with such registration.
Each holder of Registrable Securities agrees that upon receipt of any
notice from the Company of the happening of any event of the kind described in
clause (vi) of this Section 2(c), such holder will forthwith discontinue such
holder"s disposition of Registrable Securities pursuant to the registration
statement relating to such Registrable Securities until such holder"s receipt of
the copies of the supplemented or amended prospectus contemplated by clause (vi)
of this Section 2(c) (a "Delay Period") and, if so directed by the Company, such
holder will deliver to the Company all copies, other than permanent file copies
then in such holder"s possession, of the prospectus relating to such Registrable
Securities current at the time of receipt of such notice.
(d) Underwritten Offerings. The DLJ Entities will have the right, in
their sole discretion, to select an underwriter or underwriters in connection
with any underwritten offering resulting from the exercise by any DLJ Entity of
a demand for registration under Section 2(a), in which offering the Registrable
Securities to be registered by the DLJ Entities pursuant to Section 2(a)
constitute more than 50% of all Registrable Securities to be registered pursuant
to Section 2(a). Such underwriter or underwriters may include any Affiliate of
any DLJ Entity. The Board shall select, in its sole discretion, the underwriter
or underwriters in connection with any other underwritten offering; provided
that, in any underwritten offering in which Xxxxx is the Initiating Stockholder,
the lead
11
underwriters of such offering shall be reasonably acceptable to Xxxxx and;
provided further that, in any underwritten offering in which at least 30% of the
securities to be sold are owned by the DLJ Entities, the DLJ Entities shall have
the right to designate one co-lead underwriter in connection with such offering
(which will not, unless the Company consents, be the book-runner). Such
underwriter may include any Affiliate of any DLJ Entity. The underwriting
agreement shall be reasonably satisfactory in substance and form to the Board
and shall contain such representations and warranties by the Company and by the
selling stockholders and such other terms as are generally prevailing in
agreements of this type, including, without limitation, indemnities to the
effect and to the extent provided in Section 2(f). No Person may participate in
any underwritten registration hereunder unless such Person (i) agrees to sell
such Person's securities on the basis provided in any underwriting arrangements
reasonably approved by the Board that are consistent with the provisions of this
Agreement and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements and the provisions of
this Agreement.
(e) Holdback Agreements. Each holder of Registrable Securities agrees
for the benefit of the Company, so long as the Company and its controlling
stockholders agree to be similarly bound, not to effect any sale or distribution
of any equity securities of the Company, or any securities convertible into or
exchangeable or exercisable for such securities, including a sale pursuant to
Rule 144 under the Securities Act (or any similar provision then in force),
during the 30 day period before the effective date of such registration
statement (except as part of such registration statement) or during the period
after such effective date that such managing underwriter or the Board, in their
reasonable judgement, shall agree (but not to exceed 180 days); provided that
the transferees in any sale not prohibited hereunder (other than as part of such
underwritten public offering) shall agree to be bound by the terms of this
Section 2(e).
(f) Indemnification.
(i) Indemnification by the Company. In the event of any
registration of any securities of the Company under the Securities Act
pursuant to this Section 2, the Company will, and hereby does,
indemnify and hold harmless, the seller of any Registrable Securities
covered by such registration statement, its directors, officers, agents
and employees, each other Person who participates as an underwriter in
the offering or sale of such securities and each other Person, if any,
who controls such seller or any such underwriter within the meaning of
the Securities Act, against any losses, claims, damages or liabilities,
joint or several, to which such seller or any such director, officer,
agent, employee, underwriter or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings,
12
whether commenced or threatened, in respect thereof) arise out of or
are based upon (A) any untrue statement or alleged untrue statement of
any material fact contained (x) in any registration statement under
which such securities were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus
contained therein or used in connection with the offering of securities
covered thereby, or any amendment or supplement thereto or any document
included by reference therein, or (y) in any application or other
document or communication (in this Section 2(f) collectively called an
"application") executed by or on behalf of the Company or based upon
written information furnished by or on behalf of the Company filed in
any jurisdiction in order to qualify any securities covered by such
registration statement under the "blue sky" or securities laws thereof,
or (B) 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, and the Company will reimburse such seller and
each such director, officer, agent, employee, underwriter and
controlling person for any legal or any other expenses incurred by them
in connection with investigating or defending any such loss, claim,
liability, action or proceeding; provided that the Company shall not be
liable in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or
expense arises out of or is based upon an untrue statement or alleged
untrue statement, or omission or alleged omission, made in such
registration statement, any such preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement, or in any
application, in reliance upon and in conformity with written
information prepared and furnished to the Company by such seller
specifically for use in the preparation thereof which information
contained any untrue statement of any material fact or omitted to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading; and provided further that
the Company shall not be liable to any Person who participates as an
underwriter in any such registration or any other Person who controls
such underwriter within the meaning of the Securities Act, in any such
case to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises out of such
Person's failure to send or give a copy of the final prospectus, as the
same may be then supplemented or amended (provided it has been made
available to such Person in accordance with the terms hereof), to the
Person asserting an untrue statement or alleged untrue statement or
omission or alleged omission at or prior to the written confirmation of
the sale of the securities to such Person if such statement or omission
was corrected in such final prospectus. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on
behalf of such seller or any such director, officer, agent, employee,
underwriter or controlling Person and shall survive the transfer of
such securities by such seller. The Company shall not be obligated to
pay the fees and expenses of
13
more than one counsel or firm of counsel for all parties indemnified in
respect of a claim for each jurisdiction in which such counsel is
required unless in the reasonable judgment of counsel for the
indemnified party a conflict of interest may exist between such
indemnified party and any other indemnified party in respect of such
claim.
(ii) Indemnification by the Sellers. The Company may require,
as a condition to including any Registrable Securities i n any
registration statement filed pursuant to this Section 2, that the
Company shall have received an undertaking satisfactory to it from the
prospective seller of such Registrable Securities, to indemnify and
hold harmless (in the same manner and to the same extent as set forth
in Section 2(f)(i)) the Company, each director of the Company, each
officer of the Company and each other Person, if any, who controls the
Company within the meaning of the Securities Act, with respect to any
statement or alleged statement in or omission or alleged omission from
such registration statement, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any application, if such statement or alleged
statement or omission or alleged omission was made in reliance upon and
in conformity with written information prepared and furnished to the
Company by such seller, as to such seller, specifically for use in the
preparation of such registration statement, preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement, or such
application, which information contained any untrue statement of any
material fact or omitted to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading. Such indemnity shall remain in full force and effect,
regardless of any investigation made by or on behalf of the Company or
any such director, officer or controlling Person and shall survive the
transfer of such securities by such seller. The indemnity provided by
each seller of securities under this Section 2(f)(ii) shall be provided
severally, and not jointly or jointly and severally with any other
seller or prospective seller of securities, and shall be limited in
amount to the net amount of proceeds received by such seller from the
sale of Registrable Securities pursuant to such registration statement.
(iii) Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or
proceeding involving a claim referred to in the preceding subdivisions
of this Section 2(f), such indemnified party will, if a claim in
respect thereof is to be made against an indemnifying party, give
written notice to the latter of the commencement of such action;
provided that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its
obligations under the preceding subdivisions of this Section 2(f),
except to the extent that the indemnifying party is materially
prejudiced by such failure to give notice. In case any such
14
action is brought against an indemnified party, unless in such
indemnified party's reasonable judgment a conflict of interest between
such indemnified and indemnifying parties may exist in respect of such
claim, the indemnifying party shall be entitled to participate in and
to assume the defense thereof, jointly with any other indemnifying
party similarly notified to the extent that it may wish, with counsel
reasonably satisfactory to such indemnified party. No indemnifying
party shall, without the consent of the indemnified party, consent to
entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in
respect to such claim or litigation.
(iv) Other Indemnification. Indemnification similar to that
specified in the preceding subdivisions of this Section 2(f) (with
appropriate and reasonable modifications) shall be given by the Company
and each seller of Registrable Securities with respect to any required
registration or other qualification of securities under any federal,
state or provincial law or regulation of any governmental authority,
other than the Securities Act.
(v) Indemnification Payments. The indemnification required by
this Section 2(f) shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as and when
bills are received or expense, loss, damage or liability is incurred,
subject to refund if the party receiving such payments is subsequently
found not to have been entitled thereto hereunder.
(vi) Contribution. In order to provide for just and equitable
contribution in circumstances under which the indemnity contemplated by
this Section 2(f) is for any reason not available, the parties required
to indemnify by the terms hereof shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement incurred by the Company, any
seller of Registrable Securities and one or more of the underwriters,
except to the extent that contribution is not permitted under Section
11(f) of the Securities Act. In determining the amounts which the
respective parties shall contribute, there shall be considered the
relative benefits received by each party from the offering of the
Registrable Securities (taking into account the portion of the proceeds
of the offering realized by each), the parties' relative knowledge and
access to information concerning the matter with respect to which the
claim was asserted, the opportunity to correct and prevent any
statement or omission and any other equitable considerations
appropriate under the circumstances. The Company and each Person
selling securities agree with each other that no seller of Registrable
Securities shall be required to contribute any amount in excess of the
amount such seller would have been required to pay to an
15
indemnified party if the indemnities under clauses (i) and (ii) above
of this Section 2(f) were available. The Company and each such seller
agree with each other and the underwriters of the Registrable
Securities, if requested by such underwriters, that it would not be
equitable if the amount of such contribution were determined by pro
rata or per capita allocation (even if the underwriters were treated as
one entity for such purpose) or for the underwriters" portion of such
contribution to exceed the percentage that the underwriting discount
bears to the initial public offering price of the Registrable
Securities. For purposes of this clause (vi), each Person, if any, who
controls an underwriter within the meaning of Section 15 of the
Securities Act shall have the same rights to contribution as such
underwriter, and each director and each officer of the Company who
signed the registration statement, and each Person, if any, who
controls the Company or a seller of Registrable Securities within the
meaning of Section 15 of the Securities Act shall have the same rights
to contribution as the Company or a seller of Registrable Securities,
as the case may be.
Section 3. Other Registration Rights. Notwithstanding anything to the
contrary in this Agreement, the Company shall be permitted to grant to any
Person the right to request that the Company to register any equity
securities of the Company, any CVRs, or any securities convertible or
exchangeable into or exercisable for such securities, without the consent
of holders of any Registrable Securities, so long as no such registration
rights conflict with or are senior to, or would result in a delay in
exercise or consummation of, the rights granted pursuant to Section 2(a) or
Section 2(b) hereunder (other than in the manner contemplated by the final
sentence of Section 2(b)(iii)).
Section 4. Xxxxxx Guarantee. Xxxxxx hereby guarantees the performance
by the Company of all of its obligations under this Agreement.
Section 5. Amendments and Waivers. This Agreement may be amended and
the Company may take any action herein prohibited, or omit to perform any
act herein required to be performed by it, only if the Company shall have
obtained the written consent to such amendment, action or omission to act
of the holders of at least a majority of all Registrable Securities held by
the DLJ Entities, on the one hand, and by Xxxxx, on the other hand.
Section 6. Notices. All communications provided for hereunder shall be
in writing and shall be delivered personally or by facsimile or sent by
first-class mail and addressed to Xxxxx and Xxxxx at the address that each,
respectively, shall have furnished to the Company in writing, and
16
if to the Company to:
Xxxxxx Holdings Inc.
c/x Xxxxxx Corporation
000 Xxx Xxxx
Xxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
and with a copy to:
McGuire, Woods, Battle & Xxxxxx LLP
Xxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
and if to any DLJ Entity to:
DLJ Merchant Banking
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx
and with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
00
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Xx.
Facsimile: (000) 000-0000
Section 7. Binding Agreement. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns; provided that the rights accorded the DLJ
Entities herein shall not inure to the benefit of any transferee or subsequent
holder of any Registrable Securities, except to a Permitted Transferee acquiring
Registrable Securities who has executed and delivered to the Company an
agreement to be bound by this Agreement. Any such Permitted Transferee shall
thereafter have all the rights accorded to the DLJ Entities hereunder.
Notwithstanding the foregoing, (i) no Permitted Transferee obtaining its
Registrable Securities as a result of a distribution in kind to all or
substantially all of the limited partners of any DLJ Entity shall be entitled to
the benefits of this Agreement (ii) no DLJ Partner or DLJ Associate may be an
Initiating Stockholder, and (iii) all notices to any Permitted Transferee shall
be deemed to have been satisfactorily given for purposes of this Agreement if
given to DLJ Merchant Banking, Inc. at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000; Attention: Xxxxx X. Xxxxx; Facsimile No: 000-000-0000, which shall have
sole responsibility for giving notice to such Permitted Transferees and
coordinating the participation by such Permitted Transferees in any registration
of Registrable Securities pursuant hereto.
Section 8. Descriptive Headings. The descriptive headings
of the several sections and paragraphs of this Agreement are inserted for
reference only and shall not limit or otherwise affect the meaning hereof.
Section 9. Specific Performance. The parties hereto recognize and
agree that money damages may be insufficient to compensate the holders of any
Registrable Securities for breaches by the Company of the terms hereof and,
consequently, that the equitable remedy of specific performance of the terms
hereof will be available in the event of any such breach.
Section 10. Effectiveness. This Agreement shall be effective as of the
Closing Date (as defined in the Merger Agreement) and the TNA Registration
Rights Agreement shall automatically terminate as of such date.
18
Section 11. Termination. This Agreement shall automatically
terminate on the earlier of: (i) the date that is five years from the
Closing Date (as defined in the Merger Agreement) or (ii), if the
Closing Date does not occur, the termination of the Merger Agreement.
Section 12. Governing Law. All questions concerning the
construction, validity and interpretation of this agreement will be
construed and enforced in accordance with, and the rights of the
parties shall be governed by, the internal laws, and not the law of
conflicts, of the State of New York.
Section 13. Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall be
deemed an original, but all such counterparts shall together
constitute one and the same instrument.
Section 14. Entire Agreement. This Agreement, together with the
Merger Agreement, is intended by the parties hereto as a final
expression of their agreement and intended to be a complete and
exclusive statement of their agreement and understanding in respect to
the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect
to such subject matter.
19
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the date first above written.
XXXXXX CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
_________________________________
Name: Xxxx X. Xxxxxxxx
Title: Chairman
XXXXXX HOLDINGS INC.
By: /s/ Xxxx X. Xxxxxxxx
_________________________________
Name: Xxxx X. Xxxxxxxx
Title: Chairman
20
DLJ INTERNATIONAL PARTNERS, C.V.
By: DLJ MERCHANT BANKING, INC.
Advisory General Partner
By: /s/ Xxxxx Xxxxx
_________________________________
Name: Xxxxx Xxxxx
Title: Managing Director
DLJ OFFSHORE PARTNERS, C.V.
By: DLJ MERCHANT BANKING, INC.
Advisory General Partner
By: /s/ Xxxxx Xxxxx
_________________________________
Name: Xxxxx Xxxxx
Title: Managing Director
DLJMB OVERSEAS PARTNERS, C.V.
By: DLJ MERCHANT BANKING, INC.
Advisory General Partner
By: /s/ Xxxxx Xxxxx
_________________________________
Name: Xxxxx Xxxxx
Title: Managing Director
21
DLJ MERCHANT BANKING
FUNDING, INC.
/s/ Xxx Xxxxx
By: ---------------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJ FIRST ESC, L.P.
By: DLJ LBO PLANS MANAGEMENT
CORPORATION, its General Partner
/s/ Xxx Xxxxx
By: ---------------------------------
Name: Xxx Xxxxx
Title: Vice President
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
/s/ Xxx Xxxxx
By: ---------------------------------
Name: Xxx Xxxxx
Title: Vice President
22
XXXXX & MCLENNAN CAPITAL, INC. on
behalf of itself, XXXXX & XXXXXXXX RISK
CAPITAL HOLDINGS, LTD., other related
XXXXX & MCLENNAN CAPITAL, INC.
entities and RISK CAPITAL REINSURANCE
COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
_________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Finance Director
23
XXXX X. XXXXX, on his own behalf and on
behalf of certain entities as to which,
with respect to Common Shares held by
such entities, he has voting and
dispositive power
/s/ Xxxx X. Xxxxx
--------------------------------------
24
