AGREEMENT
AGREEMENT (this "Agreement"), dated as of March 1, 1999 by and among CGA
Group, Ltd. (the "Company") and each of the undersigned holders (each, a "Series
A Holder" and, collectively, the "Series A Holders") of the Company's Series A
Cumulative Voting Preference Shares (the "Series A Shares").
Notwithstanding anything to the contrary set forth in (i) that certain
Series A Preferred Stock Subscription Agreement, dated as of June 9, 1997, by
and among the Company and each holder of the Series A Shares and (ii) the
Company's Bye-Laws (the "Bye-Laws"), including, without limitation, Appendix A
thereto, each Series A Holder party hereto agrees with the Company as follows.
Capitalized terms used in this Agreement which are not otherwise defined herein
shall have the respective meanings ascribed thereto in the Bye-Laws (including
the Appendices thereto).
1. Each Series A Holder agrees that the Company shall have the right, at any
time and from time to time, to redeem any or all of such Series A Holder's
Series A Shares at a redemption price equal to the Series A Preferred Stated
Value per share plus dividends accrued but unpaid thereon through the date of
such redemption, subject to appropriate adjustment in the event of any share
split or combination with respect to such shares, payable in cash, provided that
any such redemption is effected as nearly as practicable pro rata from the
Series A Shares then held by all Series A Holders. For the avoidance of doubt,
each Series A Holder irrevocably waives any right to receive any redemption
premium or other additional amount in respect of any redemption of Series A
Shares effected pursuant to this Section 1.
2. The Company hereby agrees that if the Company shall consummate at any time
from and after the date hereof a public offering of shares of its Common Stock,
which public offering shall have been registered with the United States
Securities and Exchange Commission and shall have resulted in net proceeds to
the Company of not less than $50 million, the Company shall utilize the net
proceeds of such public offering to redeem Series A Shares held by the Series A
Holders pursuant to Section 1 of this Agreement.
3. Each Series A Holder agrees that it will not transfer any Series A Shares
held by it to any person unless and until such person agrees to become a party
hereto and to be bound by the provisions hereof by executing and delivering to
the Company a counterpart of this Agreement duly executed by such proposed
transferee. Any purported transfer of Series A Shares by a Series A Holder
signatory hereto other than in compliance with the provisions hereof shall be
deemed null and void and of no force or effect whatsoever.
4. The parties hereto agree to use their respective commercially reasonable
efforts to cause the Bye-Laws to be amended to incorporate the foregoing
provisions of this Agreement, which efforts shall include, in the case of the
Series A Holders, voting all
shares of voting stock of the Company then held by them in favor of any such
proposed amendment to the Bye-Laws.
5. This Agreement shall take effect and shall be binding upon the signatories
hereto when it shall have been executed by the Company and by the holders of all
of the Series A Shares issued and outstanding as of the date hereof. If this
Agreement shall not have been so executed by such parties by the date of the
Closing of the Rights Offering contemplated by the Offering Circular dated
January 21, 1999 (as supplemented on February 5, 1999, February 12, 1999 and
February 22, 1999), or April 15, 1999, whichever date is earlier, the provisions
hereof shall be deemed never to have come into effect and shall be of no force
or effect whatsoever. This Agreement shall be valid, binding and enforceable
when executed by all parties hereto as aforesaid and shall in no way be
construed as being conditional upon or, subject to, the amendments to the
Bye-Laws as contemplated by Section 4 of this Agreement.
6. This Agreement may only be amended or modified by written instrument
executed by the Company and Series A Holders signatory hereto who hold at the
time at least 90% of the Series A Shares held by all Series A Holders signatory
hereto.
7. This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York, without giving effect to the principles of
conflicts of law thereof.
8. This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and permitted assigns in
accordance with the terms hereof. Except as aforesaid, this Agreement shall not
be deemed to inure to the benefit of or create any rights in favor of any person
not a signatory hereto.
9. This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which together shall be deemed to
be one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
CGA GROUP, LTD.
By: /s/ XXXXXXX X. PRICE
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Xxxxxxx X. Price
President and Chief Executive Officer
Name of Series A Holder
Xxxxxx Fiduciary Trust Company on
behalf of its clients listed on
Attachment A
By: /s/ XXXX X. XXXXXX
------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
Attachment A:
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Xxxxxx Fiduciary Trust Company on behalf
of:
Xxxxxx High Yield Managed Trust
Xxxxxx High Yield Fixed Income Fund,
LLC
Name of Series A Holder
Xxxxxx Investment Management, Inc. on
behalf of its clients listed on Attachment A
By: /s/ XXXX X. XXXXXX
------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
Attachment A
Xxxxxx Variable Trust-Xxxxxx VT High
Yield Fund
Xxxxxx High Yield Trust
3
Xxxxxx Strategic Income Fund
Xxxxxx Funds Trust-Xxxxxx High Yield
Total Return Fund
Xxxxxx High Yield Advantage Fund
Xxxxxx Managed High Yield Trust
The Xxxxxx Xxxxxx Fund of Boston
Xxxxxx Income Fund
Xxxxxx Diversified Income Trust
Xxxxxx Variable Trust-Xxxxxx Diversified
Income Fund
Name of Series A Holder
Xxxxxxxxxxx Champion Income Fund
By: /s/ XXXXX XXXXX
---------------
Name: Xxxxx Xxxxx
Title: Vice President
Name of Series A Holder
Xxxxxxxxxxx Strategic Income Fund
By: /s/ XXXXX XXXXX
---------------
Name: Xxxxx Xxxxx
Title: Vice President
Name of Series A Holder
Xxxxxxxxxxx Variable Account Funds for
the account of Xxxxxxxxxxx Strategic Bond
Fund
By: /s/ XXXXX XXXXX
---------------
Name: Xxxxx Xxxxx
Title: Vice President
Name of Series A Holder
Xxxxxxxxxxx High Yield Fund
By: /s/ XXXXX XXXXX
---------------
4
Name: Xxxxx Xxxxx
Title: Vice President
Name of Series A Holder
Xxxxxxxxxxx Multi Sector Income Trust
By: /s/ XXXXX XXXXX
---------------
Name: Xxxxx Xxxxx
Title: Vice President
Name of Series A Holder
Capital Reinsurance Company
By: /s/ XXXX X. XXXXXXX
-------------------
Name: Xxxx X. Xxxxxxx
Title: SVP, General Counsel
and Secretary
Name of Series A Holder
Pacific Life Insurance Company
By: /s/ XXXX XXXXXXXXXXX
--------------------
Name: Xxxx Xxxxxxxxxxx
Title:
Name of Series A Holder
ACE Limited
By: /s/ XXXXXX XXXXXX
-----------------
Name: Xxxxxx Xxxxxx
Title: Vice Chairman
Name of Series A Holder
Lennar Capital Services, Inc.
By: /s/ XXXXXXX X. XXXXXXXX
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
5
Title: President
Name of Series A Holder
Mutual Discovery Fund
By: Franklin Mutual Advisers, Inc.
By: /s/ XXXXXXX X. XXXXXX
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
Name of Series A Holder
Mutual Qualified Fund
By: Franklin Mutual Advisers, Inc.
By: /s/ XXXXXXX X. XXXXXX
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
Name of Series A Holder
Third Avenue Trust on behalf of the Third
Avenue Value Fund Series
By: /s/ XXXXX XXXXX
---------------
Name: Xxxxx Xxxxx
Title: President
