Exhibit 10.1
SHAREHOLDERS AGREEMENT
among
ALLIED WORLD ASSURANCE HOLDINGS, LTD
and
THE SHAREHOLDERS NAMED HEREIN
November 21, 2001
Table of Contents
Page
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ARTICLE I
DEFINITIONS
1.1. Definitions...........................................................2
1.2. General Interpretation................................................2
ARTICLE II
CORPORATE GOVERNANCE
2.1. Board of Directors....................................................3
2.2. Alternate Directors...................................................6
2.3. Removal of Directors..................................................6
2.4. Replacement of Directors..............................................6
2.5. Initial Directors and Bye-laws........................................6
2.6. Action by Directors...................................................7
2.7. Quorum...............................................................10
2.8. Audit Committee; Committees..........................................12
2.9. Executive Officers...................................................13
2.10. Shareholders Meeting Chairman........................................13
2.11. Operating Company Board of Directors.................................13
2.12. Depletion of Specified Shareholders' Positions.......................15
2.13. Warrants.............................................................17
2.14. Waiver of Notice.....................................................18
ARTICLE III
CERTAIN SHAREHOLDER UNDERTAKINGS
3.1. Grant of Proxy.......................................................18
3.2. Restrictions on other Agreements.....................................18
3.3. Further Action.......................................................18
3.4. Exercise of Voting Rights Attributed by Law..........................19
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ARTICLE IV
TRANSFER RESTRICTIONS
4.1. Restrictions on Transfers of Shares..................................19
4.2. Transfers Under Certain Conditions...................................20
4.3. Transfers During Investment Period...................................20
4.4. General Conditions to Transfer.......................................21
4.5. Open Market Sales....................................................22
4.6. Freely Transferable Shares...........................................22
4.7. Effect of Transfer...................................................23
4.8. Compliance and Waiver................................................23
4.9. Minimum Ownership Amount.............................................24
4.10. Exchange of Non-Voting Common Stock for Voting Common Stock..........24
4.11. Preemptive Rights....................................................25
4.12. Drag-Along Rights....................................................27
4.13. Tag-Along Rights.....................................................28
4.14. Additional Shareholders..............................................30
ARTICLE V
RESTRICTIONS ON SHARE OWNERSHIP
5.1. Ownership Limits.....................................................31
5.2. Prompt Disposition of Shares.........................................34
5.3. Manner of Disposition................................................34
5.4. Issuance of Additional Securities or Repurchase of Securities........35
ARTICLE VI
INITIAL PUBLIC OFFERING; REGISTRATION RIGHTS
6.1. Initial Public Offering..............................................35
6.2. Demand Rights........................................................35
6.3. Obligations of the Company...........................................37
6.4. Underwriters' Lockup.................................................39
6.5. "Piggy-Back" Rights..................................................40
6.6. Allocation of Securities Included in a Registered Public Offering....41
6.7. Indemnification......................................................42
6.8. Requirements with Respect to Registration............................45
6.9. Expenses.............................................................49
6.10. Exchange Act Filings, Rule 144.......................................50
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ARTICLE VII
MISCELLANEOUS
7.1. Accounting; Financial Statements and Other Information...............50
7.2. Legend on Stock Certificates, Etc....................................51
7.3. Acknowledgment.......................................................52
7.4. Waiver of Claims; Insurance..........................................52
7.5. Confidentiality......................................................52
7.6. Competition..........................................................54
7.7. Amendment and Termination of this Agreement and the Bye-laws.........55
7.8. Notices..............................................................56
7.9. Entire Agreement.....................................................56
7.10. Severability.........................................................57
7.11. Binding Effect; Benefit..............................................57
7.12. Assignability........................................................57
7.13. Headings.............................................................57
7.14. Counterparts.........................................................57
7.15. Applicable Law.......................................................57
7.16. Submission to Jurisdiction...........................................57
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EXECUTION COPY
SHAREHOLDERS AGREEMENT
SHAREHOLDERS AGREEMENT, dated as of November 21, 2001, among the
Shareholders (as such term and other capitalized terms used herein are defined
in Annex A) named in Schedule I and that may become parties hereto from time to
time hereafter, and to which Allied World Assurance Holdings, Ltd, a limited
liability company organized under the laws of Bermuda (together with any
successor thereto, the "Company"), has been made a party.
W I T N E S S E T H
WHEREAS, on the date hereof, the Company's authorized capital stock
consists of 600,000,000 shares of Common Stock, comprised initially of
300,000,000 shares of Voting Common Stock and 300,000,000 shares of Non-Voting
Common Stock (all Voting Common Stock and Non-Voting Common Stock issued from
time to time, together with any other class of stock of the Company hereinafter
created, and all shares of capital stock issued in exchange therefor, in
replacement thereof or otherwise in respect thereof, including Warrant Shares
but excluding the Warrants and other rights to acquire capital stock, being
referred to herein as "Common Stock");
WHEREAS, on the date hereof, the Company owns the entire outstanding
capital stock of Allied World Assurance Company, Ltd, a limited liability
company organized under the laws of Bermuda (the "Operating Company");
WHEREAS, each of the initial Shareholders has subscribed to
purchase, or purchased the number of shares of Voting and Non-Voting Common
Stock set forth opposite its name in Schedule I hereto;
WHEREAS, each of the Shareholders desires to promote the interests
of the Company and the mutual interests of the Shareholders by establishing
herein certain terms and conditions upon which the shares of Common Stock will
be held, including provisions relating to the election of directors and approval
of various corporate actions;
WHEREAS, each of the Shareholders has agreed to enter into this
Agreement in connection with its subscription to purchase shares of Common Stock
and, in the case of the Founders, Warrants;
WHEREAS, each of the Shareholders has agreed that AIG and Chubb
(each an "Industry Founder") and GSCP 2000 (the "Financial Founder" and,
together with the Industry Founders, the "Founders") shall be entitled to
certain rights set forth herein in recognition of their instrumental roles,
respectively, in the organization of the Company, the Operating Company and the
launch of the Operating Company's business, which rights are acknowledged by the
Shareholders to be customary and appropriate under the circumstances; and
WHEREAS, each of the Shareholders has agreed that Securitas Allied
Holdings, Ltd ("Securitas" and, together with the Industry Founders, the
"Designating Shareholders" and, together with the Founders, the "Specified
Shareholders") and its Affiliate, Swiss Re, shall be entitled to certain rights
hereunder in recognition of Securitas's investment in the Company and the
insurance industry expertise of Swiss Re, which rights are acknowledged by the
Shareholders to be customary and appropriate under the circumstances;
NOW, THEREFORE, the Shareholders and the Company agree as follows:
ARTICLE I
DEFINITIONS
1.1. Definitions. Capitalized terms used in this Agreement shall have
the meanings set forth in Annex A.
1.2. General Interpretation. For all purposes of this Agreement,
unless otherwise expressly provided or unless the context requires otherwise:
(a) the terms defined in Annex A to this Agreement may include both
the plural and singular, as the context may require;
(b) the words "herein", "hereto" and "hereby", and other words of
similar import, refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision of this Agreement;
(c) unless otherwise specified, references to Articles, Sections,
clauses, subclauses, subparagraphs, Annexes and Schedules are references to
Articles, Sections, clauses, subclauses, subparagraphs, Annexes and Schedules of
this Agreement;
(d) the words "including" and "include" and other words of similar
import shall be deemed to be followed by the phrase "without limitation";
(e) any reference herein to a statute, rule or regulation of any
governmental entity (or any provision thereof) shall include such statute, rule
or regulation (or provision thereof), including any successor thereto, as it may
be amended from time to time;
(f) the "holder" or "owner" of any Common Stock or other security of
the Company shall mean the Person shown as the registered holder thereof on the
securities record maintained by the Company or its agent, and the terms "hold"
or "own" shall have meanings correlative thereto, except as required by the
Ownership Limits and unless the context requires otherwise;
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(g) "outstanding" securities of the Company shall exclude those
securities held by it or any of its subsidiaries;
(h) any reference to Shareholders or Members electing Directors or
voting upon any matters shall be interpreted as referring only to Shareholders
or Members holding and entitled to vote Voting Common Stock, except as provided
in Sections 3.1 and 3.4; and
(i) any reference to the "Company" shall mean the Company, acting
through its authorized Officers or the Board of Directors and shall not, unless
otherwise expressly indicated or as required by applicable law, mean the Members
or imply any action or approval thereby.
ARTICLE II
CORPORATE GOVERNANCE
2.1. Board of Directors. (a) The total number of authorized directors
constituting the Board of Directors of the Company from time to time (each, a
"Director" and collectively, the "Board of Directors" or the "Board") shall at
all times equal eight. Initially, the Directors shall be those individuals
determined pursuant to Section 2.5. Thereafter, the Directors shall be elected
annually in accordance with clause (b) or (c) below, as applicable. Any Director
elected pursuant to clause (b)(i) of this Section shall constitute an A Director
for purposes of the Bye-laws. Any Director elected pursuant to clause (b)(ii) of
this Section shall constitute a B Director for purposes of the Bye-laws. Any
Director elected pursuant to clause (b)(iii) of this Section shall constitute a
C Director for purposes of the Bye-laws. Any Director elected pursuant to clause
(c) of this Section shall constitute a D Director for purposes of the Bye-laws.
(b) The Shareholders shall, during the term of this Agreement and
subject to Section 2.12, exercise their voting rights at the first Annual
General Meeting held on or after the date of this Agreement, and at each Annual
General Meeting held thereafter, to cause to be elected as Directors:
(i) One Director nominated by an AIG Person, who shall be an A
Director and shall be the Chairman of the Board of Directors (such Director from
time to time, the "AIG Director");
(ii) One Director nominated by a Chubb Person, who shall be a B
Director and shall be the Deputy Chairman of the Board of Directors (such
Director, from time to time, the "Chubb Director" and, together with the AIG
Director, the "Industry Founder Directors"); and
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(iii) One Director nominated by Swiss Re, who shall be a senior
officer of Swiss Re and shall be a C Director (such Director, from time to time,
the "Swiss Re Director" and, together with the Industry Founder Directors, the
"Designated Directors"). The right to nominate or appoint an individual to serve
as the Swiss Re Director pursuant to this Section 2.1 or Section 2.4 or
otherwise hereunder shall be exercisable and enforceable solely by Swiss Re.
References in this Agreement to an individual nominated or appointed by a
Designating Shareholder shall, in the case of Securitas, be a reference to an
individual nominated or appointed by Swiss Re. Such right shall not be
assignable or transferable to any Person, including any Person that succeeds to
the rights of Securitas pursuant to Section 4.7, and such right shall terminate
as provided in Section 2.12(a)(i).
(c) In addition, during the term of this Agreement and subject to
Section 2.12, at the first Annual General Meeting held on or after the date of
this Agreement and each Annual General Meeting thereafter, the Shareholders,
other than the Designating Shareholders and their respective Affiliates (the
"Non-Designating Shareholders") holding Voting Common Stock, shall cast their
votes to elect five individuals (subject to adjustment pursuant to Section
2.12(a)(i) and to the limitations in Section 2.1(f)) to serve as Directors in
addition to the Designated Directors (each such Director that is not a
Designated Director, a "Non-Designated Director"). The initial Non-Designated
Directors shall be D Directors. At each Annual General Meeting, each
Non-Designated Director shall be elected upon the approval of Members (including
any who are not Shareholders) holding a plurality of the votes cast at such
meeting for the election of such Non-Designated Director in accordance with the
Bye-laws, provided that, subject to Section 2.12, each of the Designating
Shareholders hereby agrees to abstain, and to cause its Affiliates to abstain,
from casting any vote at any such meeting in respect of the election of the
Non-Designated Directors and that, if any Designating Shareholder or any of its
Affiliates casts a vote in any such election of Non-Designated Directors, such
vote shall be disregarded and not counted in such election (it being understood
and agreed, however, that the Designating Shareholders and their Affiliates need
not be disregarded for the purpose of determining whether any quorum requirement
for a General Meeting is satisfied and need not abstain from casting a vote in
respect of any election of a Designated Director or any matter other than the
election of a Non-Designated Director). Prior to each Annual General Meeting,
the Non-Designated Directors shall nominate five individuals (subject to
adjustment pursuant to Section 2.12(a)(i)) to succeed them as Non-Designated
Directors (which nominees may include one or more of the Non-Designated
Directors then in office) and the Company and the Shareholders agree that such
nominees shall be presented to the Members for election at such meeting in
accordance with this Section 2.1. With respect to each Annual General Meeting,
the Members, other than the Designating Shareholders and their respective
Affiliates (the "Non-Designating Members"), may nominate, in accordance with the
Bye-laws and applicable law (but subject to the limitations in Section 2.1(f)),
such individuals as they wish to serve as Non-Designated Directors in lieu of
one or more of the individuals nominated by the Non-Designated Directors then in
office, or in the event of the latter's failure to make such nominations.
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(d) The Financial Founder may designate one individual to serve as
an observer to the Board of Directors, which observer may be designated as a
special consultant (the "Representative"), on the terms and conditions agreed to
by the Company and the Financial Founder. The Representative shall be entitled
to receive notice of, and to be present at, all regular and special meetings of
the Board of Directors, and any meeting of a committee thereof (including the
Audit Committee), but shall not have any right to vote at such meetings. The
Representative shall not be considered a "Director" of the Company for any
purposes hereunder, under the Bye-laws or otherwise. The Representative shall be
subject to the obligations concerning the use and disclosure of Information set
forth in Sections 7.5 and 7.6 and shall be entitled to the benefit of Section
7.4. In addition, the Company may, in its sole discretion, permit one or more
other Shareholder(s) to designate, respectively, an individual to serve as an
observer to the Board of Directors (and to the Operating Company Board, pursuant
to Section 2.11(c)), on such terms and conditions as the Company may agree with
such Shareholder and its observer, which terms and conditions shall (i) except
as otherwise agreed between the Company and the appointing Shareholder, be
identical to (but separate from) those applicable to the Financial Founder's
Representative under this Agreement (including Section 7.4, Section 7.5, Section
7.6 and Section 7.11) (and the Financial Founder's representative to the
Operating Company Board), such that each reference herein to the Representative
(and the Financial Founder's representative to the Operating Company Board)
shall be deemed also to apply to any such other Shareholder's observer appointed
from time to time in accordance with this Section 2.1(d), and (ii) in any event,
shall not afford such observer rights in respect of the Board of Directors or
the Operating Company Board that are greater than those afforded the
Representative under this Agreement. Accordingly, any such observer shall not
have any right to vote at meetings of the Board of Directors or the Operating
Company Board.
(e) Any election of any Director that takes place at a Special
General Meeting or pursuant to a written resolution of the Members shall be
effected in accordance with this Section 2.1.
(f) Notwithstanding Section 2.1(c), if at any time in the future the
Financial Founder and/or any of its Transferee Affiliates (but not including any
other Affiliate of the Financial Founder) acquires or owns shares of Voting
Common Stock which were owned at any time by the Financial Founder without
violating the Ownership Limits and proposes to vote such shares in any election
of Directors, such votes shall be cast for no more than one Non-Designated
Director in such election and, if any such shares are voted for more than one
Non-Designated Director, all votes relating to such shares shall be disregarded
and not counted in such election. In addition, neither the Financial Founder nor
any of its Transferee Affiliates shall nominate for election under this Section
2.1 or under Section 2.4, at any General Meeting, any individual to serve as a
Non-Designated Director, unless they are entitled to cast votes in such election
as provided in the prior sentence, in which event they shall be permitted (in
accordance with the Bye-laws) to nominate no more than one individual for any
such election. The Financial Founder shall cause its Transferee Affiliates to
comply with this Section 2.1(f).
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This Section 2.1(f) shall cease to apply at the first Termination Time for the
Financial Founder.
2.2. Alternate Directors. (a) Each Director may appoint an alternate
Director to act in his or her stead (an "Alternate Director") in accordance with
the Bye-laws. An Alternate Director to a Designated Director shall be deemed to
be such Designated Director (while serving as such in accordance with this
Agreement) for all purposes of this Agreement. An Alternate Director to a
Non-Designated Director shall be deemed to be such Non-Designated Director
(while serving as such in accordance with this Agreement) for all purposes of
this Agreement and references to any Director herein shall be deemed to include
any such Director's Alternate Director appointed and acting in accordance with
the Bye-laws. No Director shall appoint as his or her Alternate Director another
Director.
(b) Any Alternate Director to a Non-Designated Director who attends
more than one Board meeting in any year shall be subject to Bye-law 14(1) of the
Bye-laws.
2.3. Removal of Directors. (a) A Director may be removed from office
only in accordance with the Bye-laws or as specifically provided in Section
2.3(b), 2.12(a)(i) or Section 5.1(d)(iii).
(b) Each individual nominated or appointed by Swiss Re to serve as
the Swiss Re Director shall be a senior officer of Swiss Re at all times while
serving as the Swiss Re Director. If an individual who is serving as the Swiss
Re Director ceases to be a senior officer of Swiss Re, such individual shall
promptly resign, or, if he or she does not promptly resign, shall be promptly
removed by the Board (acting without such individual), from the Board and all
committees of the Board.
2.4. Replacement of Directors. Should the office of any Director become
vacant through death, removal, resignation or otherwise, a replacement Director
shall be appointed or nominated and elected as follows. In the case of any
Designated Director whose office becomes vacant, any Person that was entitled to
nominate such Designated Director pursuant to Section 2.1 shall be entitled to
appoint the successor to such Designated Director. In the case of any
Non-Designated Director whose office becomes vacant: (a) the remaining
Non-Designated Directors then in office (if any) shall be entitled to appoint
the successor to such Non-Designated Director; or (b) in the event of the
failure of such remaining Non-Designated Directors to act for any reason within
sixty (60) days after such vacancy occurs, or if no Non-Designated Directors
remain on the Board of Directors, the Non-Designating Members shall be entitled
to nominate and elect the successor to such Non-Designated Director, in each
case pursuant to the Bye-laws and applicable law. Any Director appointed (or
nominated and elected) to replace another Director shall serve for the remainder
of the term of the Director being replaced, subject to earlier death, removal,
resignation or other vacancy.
2.5. Initial Directors and Bye-laws
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(a) The initial Directors of the Company shall consist of the
individuals named on Schedule II hereto, who will serve as the A Director, the B
Director, the C Director and the D Directors, as set forth on such Schedule.
Such individuals have been appointed by the initial shareholder of the Company
prior to the Closing Date. Each Non-Specified Shareholder who executes and
delivers to the Company a subscription agreement by which such Shareholder
subscribes for Common Stock for purchase on the Closing Date (each a
"Subscription Agreement") has been asked to ratify and approve, or to
disapprove, the appointment of the initial Non-Designated Directors or to
propose alternate candidates for election to such offices, all in the manner
specified in the Subscription Agreements. Each Shareholder that is a Designating
Shareholder or an Affiliate of a Designating Shareholder has been asked to
ratify and approve, or to disapprove, the initial A Director , B Director or C
Director whose successor such Designating Shareholder will be entitled to
nominate or appoint pursuant to this Article II. Each Non-Designated Director
whose appointment is ratified and approved in this manner by the Non-Specified
Shareholders who own a majority of the Voting Common Stock outstanding and owned
by all Non-Specified Shareholders on the Closing Date shall be deemed to have
been ratified and approved as a Non-Designated Director by the Shareholders and
shall serve in such office until the first Annual General Meeting (or until his
or her earlier death, removal, resignation or other vacancy). Each Designated
Director whose appointment has been ratified and approved in this manner by the
relevant Designating Shareholder and its Affiliates who own shares of Voting
Common Stock outstanding on the Closing Date will be deemed to have been
ratified and approved as a Designated Director and shall serve in such office
until the first Annual General Meeting (or until his or her earlier death,
removal, resignation or other vacancy).
(b) In addition, prior to the Closing Date, the Bye-laws of the
Company shall be adopted by the initial shareholder of the Company substantially
in the form appended as Annex B hereto. Each Shareholder shall ratify the
adoption of the Bye-laws substantially in such form on the Closing Date pursuant
to the applicable Subscription Agreement. On the Closing Date, the Secretary
shall prepare and execute a certificate, substantially in the form of Annex C
hereto, certifying that the appointment of the initial eight Directors and the
adoption of the Bye-laws were ratified by the Shareholders in accordance with
this Agreement.
2.6. Action by Directors. (a) The Directors shall at all times have
weighted voting power, such that each A Director, B Director and C Director
shall have one vote on all matters before the Board of Directors and each of the
D Directors shall have one and six-tenths (1.6) votes on all matters before the
Board of Directors. Except as otherwise required by paragraph (b) of this
Section 2.6 or applicable law, any corporate action taken by the Board of
Directors shall be taken by the affirmative vote of a majority of the votes
represented by the Directors present and voting at a duly constituted meeting at
which a Quorum of the Board is present and acting throughout (or by written
consent of all Directors in the manner provided in the Bye-laws), and in the
case of an equality of votes the resolution upon which such vote is taken shall
fail. Any action required to be
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taken hereunder solely by the Non-Designated Directors shall be taken at a duly
constituted meeting of the Board of Directors at which both a Quorum of the
Board and a Quorum of Non-Designated Directors is present and acting throughout,
by the affirmative vote of a majority of the votes cast by the Non-Designated
Directors who are present and voting at such meeting of the Board, and in the
case of an equality of votes the resolution upon which such vote is taken shall
fail. No action required to be taken solely by the Non Designated Directors may
be taken by written consent. The vote or votes allotted to any particular
Director may be cast on any matter properly before such Director only in their
entirety and may not be divided or cast in part. Any action to be taken by a
committee of the Board shall be taken as provided in or pursuant to the
Bye-laws.
(b) Notwithstanding paragraph (a) above, the affirmative vote of the
Applicable Number of the votes entitled to be cast at a meeting of the Board of
Directors from time to time (a "Supermajority Vote") shall be required to carry
any resolution put to a vote at a meeting of the Board with respect to the
following matters:
(i) a public offering of any securities of the Company (whether made
for the account of the Company or any other person, whether or not registered
under the securities laws of any jurisdiction and whether or not effected in the
United States of America) or the granting of any registration rights, other than
in accordance with this Agreement;
(ii) prior to the consummation of an Initial Public Offering, the
authorization or issuance of additional common shares of the Company or
securities convertible into or exchangeable or exercisable for such common
shares;
(iii) the issuance of preferred shares, debt securities or any other
class of securities;
(iv) the repurchase, redemption or retirement of any common shares
of the Company or any Subsidiary of the Company or securities convertible into
or exchangeable or exercisable for such shares;
(v) the merger, amalgamation, consolidation or sale of substantially
all the assets of the Company or any Subsidiary of the Company, or any sale of a
majority of the outstanding common shares of the Company or any Subsidiary of
the Company by vote (calculated by reference to the total combined voting rights
attached to the issued common shares) or by value (calculated by reference to
the total combined value of such common shares determined by the Board);
(vi) any sale or purchase of assets of the Company or any Subsidiary
of the Company during a 12-month period with an aggregate value exceeding 15% of
the consolidated shareholders' equity of the Company, other than investment
activity in the ordinary course of business;
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(vii) the liquidation, dissolution or voluntary winding up of the
Company or any Subsidiary of the Company;
(viii) the creation or modification of Board committees or the
appointment of committee members, other than pursuant to paragraph (2) of
Bye-law 8 of the Bye-laws;
(ix) other than pursuant to Section 2.6(d), Section 4.10(b)(i) or
(ii) or Section 5.2 or 5.3, the exchange of Voting Common Stock for Non-Voting
Common Stock and vice versa;
(x) a change in the Auditor of the Company;
(xi) the approval or rejection of any Transfer of common shares of
the Company or securities convertible into or exchangeable or exercisable for
such shares requiring the Board of Directors' consent under Section 4.3(a)(i);
(xii) any amendment to the Memorandum of Association of the Company
or the Bye-laws;
(xiii) material transactions with a Member that, together with its
Affiliates, owns 10% or more of the outstanding common shares of the Company, or
with any Affiliate of such a Member, other than transactions in the ordinary
course of business and insurance or reinsurance transactions;
(xiv) the engagement in any line of business other than holding the
shares of the Operating Company and the engagement in any line of business by
the Operating Company other than insurance and reinsurance business;
(xv) any delegation by the Operating Company of binding underwriting
authority to a third party; and
(xvi) any other matter for which a Supermajority Vote is
specifically required by the provisions of this Agreement.
(c) For the purposes of any resolution put to the vote of the Board
of Directors concerning any of the matters enumerated in clauses (xii), (xiii),
(xiv) or (xv) of Section 2.6(b), the "Applicable Number" shall equal at least
7.92 votes (which represents 72% of the total number of votes that could be cast
by all eight Directors at a duly constituted meeting attended by all such
Directors). For the purposes of any resolution put to the vote of the Board of
Directors concerning any of the matters enumerated in the remaining clauses of
Section 2.6(b), the "Applicable Number" shall equal (subject to Section 4.13(f))
at least 7.37 votes (which represents 67% of the total number of votes that
could be cast by all eight Directors at such a meeting).
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(d) All application and administration of the provisions of this
Agreement, as well as all determinations to be made, waivers to be granted and
other decisions or actions to be taken by the Board of Directors (or any
committee, Officer or other Person duly authorized to act under authority of the
Board of Directors) pursuant to this Agreement (including pursuant to Section
4.8 (b)) shall be made, granted or taken, or omitted to be made, granted or
taken, as the case may be, in the sole discretion of the Board (or such
authorized committee, Officer or other Person), as applicable, and shall be
final and binding on all Shareholders. Notwithstanding anything to the contrary
provided in this Agreement, however, the authority of the Board to grant any
waiver shall be subject to the limitations in Section 7.7(a) and the authority
of the Board to make any determination, grant any waiver or take any other
decision or action that requires a resolution to be passed by a Supermajority
Vote of the Directors may not be delegated to any committee, Officer or other
Person acting under Board authority. In addition, notwithstanding anything to
the contrary provided in this Agreement, the approval of the Board of Directors,
acting by a simple majority, shall be required for any of the following: (i) any
reduction in voting power pursuant to Bye-law 51 of the Bye-laws, (ii) any
conversion of Common Stock pursuant to Section 5.2 or 5.3 or paragraph (2) or
(3) of Bye-law 64 of the Bye-laws or (iii) any disposition of Common Stock
pursuant to Section 5.2 or 5.3 or paragraph (2) or (3) of Bye-law 64 of the
Bye-laws. Upon request of any Director, the Board of Directors shall consider
whether to retain and, if it determines to do so, shall retain outside counsel
(after considering such factors relevant to the retention of counsel as it deems
appropriate), with regard to the application of the Ownership Limits, the
"related party insurance income" and "controlled foreign corporation" provisions
of the Code, and/or the application of the voting right cutback of Bye-law 51.
2.7 Quorum. (a) Subject to clauses (i) through (iii) of this
Section 2.7(a), to Section 2.7(b)(iii) to Section 2.12(a)(i) and to Section
5.1(d)(iii), five Directors, who shall include both Industry Founder Directors
and three additional Directors, shall constitute a quorum at any regular or
special meeting of the Board of Directors (a quorum constituted in accordance
with this Section 2.7(a), a "Quorum of the Board"). Notwithstanding the
preceding sentence, the requirements to constitute a Quorum of the Board may be
adjusted as follows:
(i) if any Industry Founder Director (or his or her Alternate
Director) fails to attend a meeting of the Board of Directors for which valid
and timely notice has been given in accordance with the Bye-laws (such initially
called meeting, the "Initial Meeting"), then such meeting shall be adjourned
until a later date to be determined by the Secretary, provided that such later
date shall not be more than ten Business Days after the date of the Initial
Meeting and provided, further that notice of such adjournment and the agenda for
the adjourned meeting shall be delivered to all Directors at least five Business
Days prior to the date on which the postponed meeting is scheduled to reconvene
(the meeting scheduled for such later date, the "Postponed Meeting");
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(ii) if any Industry Founder Director (or his or her Alternate
Director) fails to attend the Postponed Meeting, then such meeting shall be
further adjourned until a later date to be determined by the Secretary, provided
that such later date shall not be more than ten Business Days after the date of
the Postponed Meeting and provided, further that notice of such adjournment and
the agenda for the adjourned meeting shall be delivered to all Directors at
least five Business Days prior to the date on which such further adjourned
meeting is scheduled to reconvene (the meeting scheduled for such later date,
the "Second Postponed Meeting"); and
(iii) for purposes of a Second Postponed Meeting, four Directors
shall constitute a Quorum of the Board and there shall be no requirement that
any Industry Founder Director (or his or her Alternate Director) be among those
Directors in attendance in order to constitute such Quorum of the Board.
(b) Subject to clauses (i) through (iii) of this Section 2.7(b), the
quorum necessary for the Non-Designated Directors to take action required to be
taken solely by the Non-Designated Directors at any meeting of the Board of
Directors (a "Quorum of Non-Designated Directors") shall be the total number of
Non-Designated Directors then in office adjusted as follows:
(i) if such number of Non-Designated Directors (including any of
their Alternate Directors) fails to attend a meeting of the Board of Directors
for which valid and timely notice has been given in accordance with the Bye-laws
and at which the Non-Designated Directors are to take action required to be
taken solely by the Non-Designated Directors (such initially called meeting, the
"First Meeting"), or if a Quorum of the Board is not present at such meeting,
then such meeting shall be adjourned (with respect to such action only) until a
later date to be determined by the Secretary, provided that such later date
shall not be more than ten Business Days after the date of the First Meeting and
provided, further that notice of such adjournment and the agenda for the
adjourned meeting shall be delivered to all Directors at least five Business
Days prior to the date on which the postponed meeting is scheduled to reconvene
(the meeting scheduled for such later date, the "Second Meeting");
(ii) if such number of Non-Designated Directors (including any of
their Alternate Directors) fails to attend the Second Meeting, or if a Quorum of
the Board is not present at such meeting, then such meeting shall be further
adjourned (with respect to such action only) until a later date to be determined
by the Secretary, provided that such later date shall not be more than ten
Business Days after the date of the Second Meeting and provided, further that
notice of such adjournment and the agenda for the adjourned meeting shall be
delivered to all Directors at least five Business Days prior to the date on
which the postponed meeting is scheduled to reconvene (the meeting scheduled for
such later date, the "Third Meeting"); and
(iii) for purposes of a Third Meeting, Non-Designated Directors
holding a majority of the votes entitled to be cast at a meeting of the Board of
Directors
-11-
by all Non-Designated Directors then in office shall constitute a Quorum of
Non-Designated Directors for such action, provided that any four Directors are
in attendance at the Third Meeting, which four Directors shall constitute a
Quorum of the Board solely for purposes of any action required to be taken
solely by the Non-Designated Directors at such Third Meeting.
The Non-Designated Directors shall not take any action required to be taken
solely by the Non-Designated Directors other than at a duly constituted meeting
of the Board of Directors at which both a Quorum of the Board of Directors and a
Quorum of Non-Designated Directors (in each case, subject to adjustment in
accordance with this Section 2.7) is present and acting throughout to the extent
required by the foregoing. A Quorum of Non-Designated Directors shall not be
necessary for any action to be taken by the Board of Directors unless such
action is required to be taken solely by the Non-Designated Directors. The only
action required under this Agreement to be taken solely by the Non-Designated
Directors is such action as is necessary in order to nominate any person for
election as a Non-Designated Director at any General Meeting (or pursuant to a
written resolution of Members), or to appoint a person to fill a vacancy among
the Non-Designated Directors pursuant to Section 2.4.
2.8. Audit Committee; Committees. (a) The Board of Directors shall
annually, during the term of this Agreement, appoint an Audit Committee which
shall nominate the independent auditors of the Company and, in consultation with
such auditors, review and supervise the accounting policies and procedures of
the Company. The Audit Committee shall be comprised of at least four members,
the number of which, from time to time, shall be determined by the Board by
majority vote, subject to the following:
(i) Subject to Section 2.12(a)(i), each Designated Director who
wishes to be a member of the Audit Committee shall be a member; and
(ii) the AIG Director shall be the chairman of the Audit Committee,
unless he or she declines to serve as chairman or declines to be a member of
such committee, provided that, upon any loss by AIG of its rights as a Founder
pursuant to Section 2.12(a)(i), the chairman of the Audit Committee shall be
such Director as the Board of Directors may designate from time to time;
provided that upon and after an Initial Public Offering, the right of any
Director to be a member or Chairman of the Audit Committee shall cease if the
Board of Directors determines that such membership would be inconsistent with
compliance by the Company with applicable stock exchange or quotation system
rules pertaining to listed/quoted companies' audit committees.
(b) Every committee of the Board of Directors shall include each of
the Designated Directors should they each respectively elect to be members of
any such committee. A Director, other than a Designated Director, serving as a
member of any committee of the Board of Directors may be removed from membership
in such
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committee in the circumstances provided in, and in accordance with, the
Bye-laws. Any successor to such Non-Designated Director on such a committee
shall be appointed by the Board of Directors in accordance with the Bye-laws. A
Designated Director serving as a member of any committee of the Board of
Directors may be removed from membership in such committee (i) in connection
with and pursuant to such Designated Director's removal from office as a
Director in accordance with Section 2.3; and (ii) in the case of the Audit
Committee, if the Designated Director ceases to have the right to be a member of
the Audit Committee pursuant to the proviso of Section 2.8(a). Subject to the
proviso of Section 2.8(a), the successor to such Designated Director appointed
to the Board of Directors in accordance with Section 2.4 shall be the successor
to such Designated Director on such committee and shall serve on such committee
in a capacity identical to that of his or her predecessor (including, in the
case of an AIG Director, as chairman of the Audit Committee).
2.9. Executive Officers. The Board of Directors shall appoint such
officers of the Company ("Officers") as it may determine from time to time
pursuant to the Bye-laws. Such Officers shall serve subject to the pleasure of
the Board. Each of the Secretary and the principal representative of the Company
shall be Bermuda residents for so long as the Bermuda residency of two such
persons is required by Bermuda law, unless the Board determines from time to
time that such requirement has otherwise been satisfied. The initial Officers of
the Company shall be those individuals set forth on Schedule III hereto, unless
and until the Board of Directors determines otherwise.
2.10. Shareholders Meeting Chairman. The Chairman of the Board of
Directors shall have the right to act, or to designate an individual to act, as
chairman of each General Meeting at which the Chairman is present. If the
Chairman is absent, or shall fail to act as Chairman or to designate an
individual so to act at any such meeting, the Deputy Chairman of the Board of
Directors shall have the right to act as chairman of the General Meeting, or to
designate an individual so to act.
2.11. Operating Company Board of Directors. The board of directors
of the Operating Company (the "Operating Company Board") shall be constituted of
eight directors who shall be at all times the same individuals who are members
of, and be identical to, the Board of Directors. The Directors, in their
capacity as directors of the Operating Company Board, shall have weighted voting
power identical to the voting power exercised by each on the Board of Directors.
The Company shall take such actions as may be necessary to cause such
individuals to be elected or appointed to the Operating Company Board as is
contemplated in this Section 2.11.
The bye-laws and governance mechanisms of the Operating Company
shall be implemented so as to cause the management and governance of the
Operating Company to parallel, as closely as practicable, the management,
governance and exculpation provisions set forth in this Article II and Section
7.4. In furtherance of the foregoing, the bye-laws and governance mechanisms of
the Operating Company shall, in substance, provide, without limitation:
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(a) The Operating Company Board (including the chairman and the
deputy chairman and any committees thereof) shall at all times be identical to
the Board of Directors and the committees thereof, respectively; provided that
the Operating Company Board may have such additional committees as such board
may determine, and provided, further, that any director who is a Designated
Director shall be entitled to sit on any such committee if he or she so elects.
(b) Directors of the Operating Company may appoint alternate
directors, provided that such alternates must be the same person appointed as
such director's Alternate Director with respect to such Director's seat on the
Board of the Company.
(c) The Financial Founder shall have the right to appoint an
observer or special consultant to the Operating Company Board, who shall be the
same person as the Representative and who shall have the rights referred to in
Section 2.1(d) (as though references to the Board of Directors and the Company
therein were references to the Operating Company Board and the Operating
Company, respectively).
(d) Directors of the Operating Company may only be removed from the
Operating Company Board or any committee thereof as a result of, or in
connection with, their removal from the Board of the Company or the
corresponding committee thereof in accordance with Section 2.3.
(e) The same requirements for a quorum (those set forth in Section
2.7) shall be required for a meeting of the Operating Company Board. Any
corporate action taken by the Operating Company Board shall be taken by the
affirmative vote of the majority of the votes represented by the directors
present at a duly constituted meeting at which a quorum is present (or by
written consent of all Operating Company directors), except as required by law
and except that any action on a matter to be undertaken by the Operating Company
which, if taken by the Company's Board of Directors would require a
Supermajority Vote, shall require a corresponding supermajority vote of the
Operating Company Board.
(f) The Operating Company Board shall appoint such officers of the
Operating Company as it may determine from time to time pursuant to the bye-laws
of the Operating Company. Such officers shall serve subject to the pleasure of
the Operating Company Board. Each of the secretary and the principal
representative of the Operating Company shall be Bermuda residents for so long
as the Bermuda residency of two such persons is required by Bermuda law, unless
the Operating Company Board determines from time to time that such requirement
has otherwise been satisfied.
(g) The chairman of the Operating Company Board shall have the right
to act, or to designate an individual to act, as chairman of each shareholders
meeting at which the chairman is present. If the chairman is absent, or shall
fail to act as chairman or to designate an individual so to act at any such
meeting, the deputy chairman
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of the Operating Company Board shall have the right to act, or to designate an
individual to act, as chairman of the shareholders meeting.
In addition, the Company and the Operating Company shall enter into
an agreement whereby the Company shall waive any claim or right of action it
might have against any director, alternate director or officer of, or any
Financial Founder's representative to, the Operating Company, to at least the
same extent as Shareholders are waiving claims and rights of action against any
Director, Alternate Director, Officer or Representative under Section 7.4. The
Operating Company shall obtain and maintain directors' and officers' liability
insurance for the benefit of all the directors, alternate directors and officers
and the Financial Founder's representative (and, if the Operating Company Board
so determines in its sole discretion, any employees of the Operating Company) on
such terms and conditions as the Operating Company Board shall approve in its
sole discretion.
2.12. Depletion of Specified Shareholders' Positions. (a) Except
as otherwise provided below, the following shall apply at any Termination Time
for a Specified Shareholder:
(i) At the Termination Time for any Designating Shareholder: such
Designating Shareholder (including Swiss Re, in the case of Securitas) shall
cease to be entitled to nominate or appoint a Director (annually or to fill any
interim vacancy) pursuant to Section 2.1(b) or Section 2.4; the Shareholders
shall no longer be obligated to exercise their voting rights to elect a Director
nominated by such Designating Shareholder pursuant to Section 2.1(b); a Director
nominated or appointed by such Designating Shareholder shall no longer be
required to be in attendance at any meeting of the Board of Directors in order
to constitute a Quorum of the Board pursuant to Section 2.7 (if applicable); the
individual nominated or appointed by such Designating Shareholder to serve as
the A Director, B Director or C Director, as the case may be, shall promptly
resign (or if such Director does not promptly resign, shall be promptly removed
by the Board (acting without such individual)) from the Board, including any
committee of the Board, unless reappointed by the Non-Designated Directors
pursuant to Section 2.4 (acting without such individual and as if a vacancy were
being filled), in which event such individual may continue to serve as the A
Director, B Director or C Director, as the case may be, until his or her
successor is elected or appointed pursuant to this Agreement and the Bye-laws
(or until any earlier death, removal, resignation or other vacancy); the A
Director, B Director or C Director, as the case may be, shall become and at all
times thereafter be a Non-Designated Director for all purposes of this Agreement
and shall be subject to the nomination and election provisions governing
Non-Designated Directors set forth in Section 2.1(c), provided that such A
Director, B Director or C Director shall at all times continue to have one vote
on all matters before the Board of Directors; each of such Designating
Shareholder and its Affiliates that are Shareholders shall be entitled to vote
as a Non-Designating Shareholder in the election of Non-Designated Directors
pursuant to Section 2.1(c) for as long as such Person remains a Shareholder (to
the extent that such Shareholder holds Voting Common Stock); and thereafter the
Non-Designating
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Members shall be entitled to elect (A) in the case of the first Termination Time
for a Designating Shareholder, 6 Directors, 5 of whom will be D Directors, each
with 1.6 votes, and one of whom will be an A Director, a B Director or a C
Director, as the case may be, with one vote, (B) in the case of the second
Termination Time for a Designating Shareholder, 7 Directors, 5 of whom will be D
Directors, each with 1.6 votes, and two of whom will be an A Director, a B
Director or a C Director, as the case may be, each with one vote, and (C) in the
case of the third Termination Time for a Designating Shareholder, 8 Directors, 5
of whom will be D Directors and three of whom will be an A Director, a B
Director or a C Director, as the case may be, each with one vote.
(ii) at the Termination Time for any Founder, such Founder shall no
longer be entitled to acquire Common Stock in a Transfer pursuant to Section
4.3(a)(ii)(B);
(iii) at the Termination Time for any Founder, such Founder shall no
longer be entitled, in the capacity of a Founder, to demand registration of
Common Stock for an Initial Public Offering pursuant to Section 6.2(a)(i);
(iv) at the Termination Time for any Specified Shareholder, such
Specified Shareholder shall no longer be entitled, in the capacity of a
Specified Shareholder, to demand registration of Common Stock for any Subsequent
Registered Public Offering pursuant to Section 6.2(a)(ii);
(v) at the Termination Time for any Founder, such Founder shall no
longer be required to permit other Shareholders to participate in a Proposed
Private Sale pursuant to Section 4.13;
(vi) at the Termination Time for any Specified Shareholder, the
consent of such Specified Shareholder, in its capacity as a Founder or as
Securitas, as the case may be, shall no longer be required with respect to any
termination, amendment or waiver of this Agreement or any rescission, alteration
or amendment of the Bye-laws to the extent required by Section 7.7(a)(i) or (ii)
or Section 7.7(b)(i) or (ii), as the case may be; and
(vii) at the Termination Time for any Founder, such Founder shall no
longer be deemed to be a Founder for the purpose of triggering preemptive rights
for each Shareholder with respect to a Subject Issuance involving the issuance
of Common Stock (or rights to acquire Common Stock) at a price per share equal
to or greater than $11.40 pursuant to the proviso of Section 4.11(a) (although
any right that such Founder may have in its capacity as a Shareholder to
exercise any preemptive rights that otherwise may apply to each Shareholder
pursuant to Section 4.11(a) shall not be affected).
For purposes of this Section 2.12, the "Termination Time" for any Founder shall
be the first time after the Closing Date when such Founder and its Affiliates,
taken together, own shares of Common Stock on a Fully Diluted Basis in an amount
that is (i) less than 50% of such Founder's Original Number or (ii) solely for
the purposes of
-16-
Section 2.12(a)(iv) and (v) above, less than 25% of such Founder's Original
Number. For the purposes of this Section 2.12, the "Termination Time" for
Securitas shall be the first time after the Closing Date when Securitas and its
Eligible Affiliates, taken together, own shares of Common Stock on a Fully
Diluted Basis in an amount that is (i) less than 75% of Securitas's Original
Number or (ii) solely for the purposes of Section 2.12(a)(iv) and (vi) above,
less than 50% of Securitas's Original Number; provided, however, that the
Termination Time specified in clause (i) of this sentence (the "First Securitas
Termination Time") may also be deemed to have occurred as provided in Section
5.1(d).
(b) Except to the extent terminated pursuant to this Section 2.12 or
as may be specified elsewhere herein, a Specified Shareholder shall continue to
have the rights and obligations specifically provided for such Specified
Shareholder, as such Specified Shareholder, in this Agreement. Without limiting
the foregoing, any individual serving as a Designated Director who resigns at
the relevant Termination Time shall remain entitled to the benefits of Section
7.4 with regard to all acts taken or omitted to be taken by such individual in
his or her capacity as a Designated Director, as the case may be, prior to such
Termination Time and shall remain subject to any obligation regarding the use or
disclosure of Information obtained in his or her capacity as a Designated
Director that may exist at such Termination Time. Nothing in this Section 2.12
shall affect the rights or obligations of a Specified Shareholder in its
capacity as a Shareholder hereunder.
2.13. Warrants. Each of the Shareholders hereby acknowledges and
agrees that the Company shall have executed, or will execute, on or prior to the
date of this Agreement, and shall issue in favor of each of the Founders,
Warrants exercisable at the option of the holder thereof, upon the terms and
conditions set forth therein, for the purchase of shares of Common Stock, and
that a holder of Warrants shall be entitled to Transfer such Warrants to the
extent permitted thereby and hereby. Transfers of the Warrants shall be subject
to the same restrictions upon Transfer as apply to the Transfer of shares of
Common Stock under Article IV (it being understood and agreed that, for the
purpose of applying any Transfer restrictions in Article IV (other than the
Ownership Limits except to the extent so required by such limits) any Transfer
of a Warrant shall be deemed also to be a Transfer of the Warrant Shares
issuable upon exercise of such Warrants). Any Common Stock issued by the
Company, and any warrants, options or other rights to acquire Common Stock
(other than Warrants) issued by the Company, in each case, to a Person who is or
becomes a Shareholder after the Closing Date shall be subject to the Transfer
restrictions set forth in Article IV and may also be subject to any other
transfer restrictions approved or authorized by the Board of Directors;
provided, however, that any such rights issued to such a Person pursuant to an
employment agreement or employee benefit plan authorized or approved by the
Board (but not the shares of Common Stock issuable upon exercise of such rights)
may be subject to such transfer restrictions (if any) as the Board may authorize
or approve and need not be subject to the Transfer restrictions in Article IV
(other than Section 4.4(b)).
-17-
2.14. Waiver of Notice. Notwithstanding any other provision hereof,
any requirement in this Agreement that notice of a meeting or any other matter
be given to a Director, a Shareholder or any other Person may be waived by such
Person in any matter permitted in the Bye-laws and applicable law.
ARTICLE III
CERTAIN SHAREHOLDER UNDERTAKINGS
3.1. Grant of Proxy. Each Shareholder hereby grants a proxy to the
Chairman and the Deputy Chairman of the Board of Directors from time to time (or
either of them or any designee of either of them) for the purpose of casting
such Shareholder's vote at any General Meeting or any other meeting of holders
of capital stock of any class (and for the purpose of executing in the name of
such Shareholder any written resolution of Members), in each case for the sole
purpose of giving effect to the requirements set forth in Section 2.1(b) and
Section 3.4. The Person(s) exercising the foregoing proxy may do so by
delivering to the Secretary a writing in any form stating the number of shares
of Common Stock entitled to vote in respect of which the proxy is being
exercised, the Shareholder(s) on the behalf of whom it is being exercised, the
number of votes being cast and how they are being cast, which writing shall be
signed by the Person(s) exercising such proxy but shall not be required to be
signed or approved by any Shareholder(s) on whose behalf such proxy is being
exercised. The foregoing proxy shall be irrevocable and shall be deemed to be
coupled with an interest.
3.2. Restrictions on other Agreements. No Shareholder shall grant
any proxy or enter into or agree to be bound by any voting trust with respect to
the Common Stock other than those granted or established by this Agreement, nor
shall any Shareholder enter into any stockholder agreement or arrangements of
any kind with any Person with respect to the Common Stock or the Warrants, in
either case, on terms that are inconsistent with the provisions of this
Agreement, or that would interfere with the ability of any Shareholder to comply
with the provisions of this Agreement (whether or not such agreements and
arrangements are with other Shareholders or with holders of Common Stock that
are not parties to this Agreement), including agreements or arrangements with
respect to the acquisition, disposition or voting of shares of Common Stock on
terms that are inconsistent with the provisions of this Agreement, or that would
interfere with the ability of any Shareholder to comply with the provisions of
this Agreement or that would result in a violation of the Ownership Limits.
3.3. Further Action. Each Shareholder shall, so long as such
Shareholder owns any shares of Common Stock (other than Freely Transferable
Shares), take any and all action (on a timely basis) necessary in order to
ensure that such Shareholder performs its obligations under, and otherwise
complies with, the provisions of this Agreement, including by execution and
delivery of such instruments as may be requested. Notwithstanding the foregoing
but subject to Section 3.4, with respect to any proposition
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to be voted upon by the Shareholders, any Shareholder with a conflict of
interest may abstain from voting on such proposition, so long as such abstention
does not prevent the taking of any action by the Company (unless such
Shareholder's fiduciary duty under ERISA requires otherwise).
3.4. Exercise of Voting Rights Attributed by Law. In the event that,
at any General Meeting or in respect of any written resolution of Members,
Shareholders holding Non-Voting Common Stock are entitled under Bermuda law to
vote on any matter (such as an amalgamation), notwithstanding the fact that
their shares do not carry any voting rights under the Bye-laws, each such
Shareholder shall cast the votes corresponding to its Non-Voting Common Stock in
proportion to the votes cast by Members holding Voting Common Stock at such
meeting (or by such written resolution) for, against or abstaining from any
resolution on such matter. In such an event, the Chairman or Deputy Chairman (or
any designee of either of them) shall exercise the proxy granted by all
Shareholders pursuant to Section 3.1 to cause all Shareholders' Non-Voting
Shares to be voted in the manner required by this Section 3.4.
ARTICLE IV
TRANSFER RESTRICTIONS
4.1. Restrictions on Transfers of Shares. During the term of this
Agreement, no Shareholder may, directly or indirectly, sell, assign, transfer or
otherwise dispose of, or pledge or otherwise encumber, any shares of Common
Stock (any such transaction, a "Transfer" and any such Shareholder, a
"Transferor") to or in favor of any other Person (including by operation of law)
(a "Transferee"), except as provided in this Article IV and subject, in all
cases, to Section 4.4. It is understood and agreed that any issuance of Common
Stock or other securities by the Company shall not be subject to the
restrictions of this Article IV. It is further understood and agreed that a
change in the ownership or control of any Shareholder which is not an
individual, directly or indirectly, will not be deemed to be a Transfer of any
Common Stock (or rights to acquire Common Stock) held by such Shareholder unless
and until a majority of the voting interests in, or the power to direct the
policies, management and affairs of, such Shareholder, becomes held, directly or
indirectly, by any Person or group of Affiliated Persons that did not hold a
majority of such voting interests, or that did not hold such power, as the case
may be, directly or indirectly, at the time such Shareholder most recently
became a Shareholder (any such change, a "Change of Control" and any such Person
or group of Affiliated Persons that so held such voting interests or power
immediately prior to such Change of Control, the "Initial Control Person"),
whereupon a Transfer of such Common Stock (and any such rights) shall be deemed
to have occurred for the purposes of, and shall be required to comply with, this
Article IV, provided that in all cases a Change of Control of the Ultimate
Parent of such Shareholder shall not be such a Transfer, and provided further,
that such Shareholder shall be deemed to be the Transferee of all such Common
Stock (and rights) that it continues to own after such Transfer and the Initial
Control Person
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with respect to such Change of Control shall be deemed to be the Transferor
thereof. Any Transfer deemed to have occurred upon a Change of Control as
described in the preceding sentence shall be deemed to have been permitted if
such Transfer, had it occurred other than by virtue of such Change of Control,
would have been permitted under this Article IV.
4.2. Transfers Under Certain Conditions. (a) Except as provided in
Sections 4.3, 4.4 and 4.5, no Shareholder may Transfer any shares of Common
Stock, in whole or in part, prior to the fifth anniversary of the Closing Date
(the five-year period from (and including) the Closing Date to (but excluding)
such fifth anniversary, the "Investment Period").
(b) After the Investment Period, a Shareholder may Transfer any
shares of Common Stock, in whole or in part, subject to Sections 4.4 and 4.6.
4.3. Transfers During Investment Period. (a) During the Investment
Period, no Shareholder may Transfer any shares of Common Stock, in whole or in
part, unless the Transfer meets the requirements of any one of clauses (i)
through (vi) below (or is made pursuant to Section 4.12 or Section 4.13):
(i) the Transfer is effected with the prior approval of the Board of
Directors acting by a Supermajority Vote (which approval may be withheld in the
sole discretion of the Board for any reason); or
(ii) the Transfer is made by a Non-Specified Shareholder at any time
(or by Securitas or any of its Affiliates after the consummation of an IPO)
either (A) to a Transferee that, upon consummation of the Transfer and together
with its Affiliates, would not Beneficially Own (other than Beneficial Ownership
arising solely by virtue of being a party to this Agreement) a number of shares
of Common Stock that would equal or exceed 5% of the total number of shares of
Common Stock then outstanding on a Fully Diluted Basis or (B) to a Founder or
its Affiliates; or
(iii) the Transfer occurs in connection with a transaction in which
the Ultimate Parent of the Transferor consolidates, amalgamates or merges with,
or sells or otherwise conveys all or substantially all of its assets to, another
Person, such that all shares of Common Stock owned by the Transferor become
owned, directly or indirectly through one or more Subsidiaries, by the Person
surviving such consolidation, amalgamation or merger or acquiring all or
substantially all of such assets; or
(iv) the Transfer is made to any Affiliate or Related Person of the
Transferor; provided that, if the Transferee ceases to be an Affiliate or a
Related Person of the Transferor at any time after the Transfer, then (unless
the original Transfer would have been permitted under this Article IV if
effected immediately after such time) the Transferee shall promptly Transfer all
Common Stock (and any rights to acquire Common Stock) acquired in the original
Transfer either back to the Transferor or an Affiliate or Related Person of the
Transferor, which Transfer (for purposes of this
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clause (iv)) shall be treated as a Transfer to an Affiliate, provided that such
subsequent Transfer would comply with this Article IV, or to another Person in a
Transfer that complies with (x) Section 4.3(a)(i) (whether or not during the
Investment Period) and (y) the other applicable provisions of this Article IV,
and provided, further that, subject to Section 4.1, (A) no Transfer by Securitas
or any Eligible Affiliate shall be permitted pursuant to this clause (iv) unless
such Transfer is made to an Eligible Affiliate, (B) if any Common Stock is
Transferred to an Eligible Affiliate that thereafter ceases to be an Eligible
Affiliate, such Common Stock shall promptly be Transferred to an Eligible
Affiliate (or in a Transfer that complies with Section 4.3(a)(i), whether or not
during the Investment Period, and the other applicable provisions of this
Article IV) and (C) any Transfer of Common Stock by Securitas to Eligible
Affiliates shall in all cases be to Swiss Re and its Eligible Affiliates, on the
one hand, and Credit Suisse and its Eligible Affiliates, on the other hand, in
proportion to their respective ownership percentages of Securitas on the date
hereof; or
(v) the Transfer is made in an Initial Public Offering or any
subsequent Registered Public Offering effected in accordance with this
Agreement; or
(vi) the Transfer is made in an Open Market Sale after the
consummation of an Initial Public Offering, in accordance with Section 4.5.
(b) Continuing Effect of Transfer Restrictions. Following any
Transfer of shares of Common Stock in accordance with this Section 4.3, the
restrictions provided for in Section 4.2 shall continue to apply to the shares
of Common Stock so Transferred, other than shares of Common Stock that become
Freely Transferable Shares.
4.4 General Conditions to Transfer. Every Transfer of shares of
Common Stock, whether made during or after the Investment Period (other than a
Transfer of Freely Transferable Shares or a Transfer in an Open Market Sale, to
the extent so provided in Section 4.5 and 4.6) must comply with the following
requirements as applicable:
(a) unless the Transfer is made in a Registered Public Offering,
each Transferee shall be an "accredited investor" as defined in Regulation D
under the Securities Act;
(b) no Person shall be in violation of the applicable Ownership
Limits by reason of such Transfer, provided that, notwithstanding any other
provision of this Article IV, any Transfer of Voting Common Stock (other than
Freely Transferable Shares) to an investment partnership that is an Affiliate of
the Transferor shall be deemed to violate the Ownership Limits unless such
Transfer is by a Person that is not a natural person and a majority of the
equity ownership interest in such Transferee partnership and a majority of the
equity ownership interest in such Transferor are under common ownership, either
directly or indirectly;
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(c) unless the Transfer is made in a Registered Public Offering, no
registration of any securities shall be required under the Securities Act or the
Securities Exchange Act, or any other applicable securities or "blue sky" laws,
by reason of such Transfer;
(d) unless the Transfer is made in a Registered Public Offering,
each Transferee (other than the Company) shall expressly assume (in an
assumption agreement substantially in the form attached hereto as Annex E) the
rights and obligations of a Shareholder under this Agreement;
(e) the Transfer shall not violate any applicable Underwriters'
Lockup; and
(f) until such time as the Company shall become subject to Section
13 or 15(d) of the Securities Exchange Act, the Transfer shall be in accordance
with the requirements of Section 4.9 (Minimum Ownership Amount).
4.5. Open Market Sales. After the consummation of an Initial Public
Offering, a Shareholder may Transfer shares of Common Stock without regard to
the restrictions imposed by Sections 4.3 and 4.4 (other than Section 4.4(b)), if
the following conditions are satisfied:
(a) the shares of Common Stock Transferred shall be sold into the
open market in accordance with the applicable requirements of Rule 144 under the
Securities Act;
(b) the Transferor shall have delivered to the Company in advance of
the Transfer (i) a properly completed and signed certificate of the Transferor,
substantially in the form attached hereto as Annex D-1, and (ii) if required by
the terms of such Transferor's certificate, a properly completed and signed
certificate of the Transferee substantially in the form of Annex D-2, in the
case of any such Transfer during the Investment Period, or Annex D-3, in the
case of any such Transfer after the Investment Period (the certification(s)
required by clauses (i) and (ii), collectively, an "Open Market Transfer
Certificate"); and
(c) the Transfer shall not violate any applicable Underwriters'
Lockup.
The Company need not accept any Open Market Transfer Certificate if it has
reasonable grounds to believe that such certificate is false, in which case the
Shareholder shall not Transfer the shares of Common Stock. Neither the Company
nor the Transferor shall have any obligation to determine the identity of any
Transferee or otherwise investigate the circumstances in which the Transfer is
to occur.
4.6. Freely Transferable Shares. All shares of Common Stock
Transferred in compliance with Section 4.5 or in a Registered Public Offering
conducted in compliance with this Agreement shall, immediately upon consummation
of such Transfer, be "Freely
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Transferable Shares". A Transfer involving only Freely Transferable Shares shall
not be subject to the requirements of Sections 4.2 through 4.5 (other than
Section 4.4(b)).
4.7 Effect of Transfer. (a) The Company shall not register the
Transfer of any shares of Common Stock (other than shares of Common Stock that,
immediately after such Transfer, would be Freely Transferable Shares) unless the
Transferee is already a Shareholder (or the Company) or executes and delivers to
the Company an assumption agreement substantially in the form of Annex E. Upon
any such registration of a Transfer to a Transferee that was not previously a
Shareholder, the Transferee (whether or not such Person has executed and
delivered such assumption agreement for any reason) shall automatically and
without any further action become and assume all of the applicable rights and
obligations of a Shareholder under this Agreement. Notwithstanding the
foregoing, a Transferee of shares of Common Stock Transferred by a Founder or
Securitas shall not succeed to the rights of such Founder as a Founder, or of
Securitas as a Specified Shareholder, as the case may be, under this Agreement,
unless such Transfer involves all of the shares of Common Stock held by such
Founder or Securitas, as the case may be, at the time of the Transfer and is
made in compliance with Section 4.3(a)(iii) or (iv) (whether or not the Transfer
occurs during the Investment Period) and Section 4.4.
(b) If, following any Transfer, the Transferor no longer holds any
shares of Common Stock (other than Freely Transferable Shares) or any Warrant
(or any other rights to acquire Common Stock that may be subject hereto), such
Transferor (other than a Founder that has transferred Common Stock to one of its
Affiliates that continues to hold such Common Stock) shall cease to be a
Shareholder for all purposes of this Agreement, provided that any rights,
obligations and liabilities of such Shareholder arising hereunder prior to such
cessation shall be unaffected.
4.8. Compliance and Waiver. (a) In connection with any Transfer of
shares of Common Stock subject to Section 4.3 or 4.4 (other than Transfers in a
Registered Public Offering), the Company may require the Transferee and/or the
Transferor to provide such documentary or other evidence, in such form and
substance as the Company may reasonably request, in its sole discretion, in
order to ensure compliance with this Article IV. Without limiting the foregoing,
such evidence may include certificates as to ownership of shares of Common
Stock, as contemplated by Section 5.1 or otherwise, and an opinion of counsel
acceptable to the Company to the effect that registration of such shares of
Common Stock will not be required under the Securities Act in connection with
such Transfer (taking into account any other past or future Transfers which, in
such counsel's view, are appropriately integrated therewith, including, if
appropriate, sales pursuant to the Subscription Agreements).
(b) The Board of Directors, in a resolution passed by a
Supermajority Vote, in its sole discretion for any reason, may waive any
requirement of this Article IV (as well as Section 5.1 relating to the Ownership
Limits). The Board of Directors, in a resolution passed by a simple majority (in
accordance with Section 2.6(a)), may also
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apply and administer the provisions of this Article IV (as well as Section 5.1
relating to the Ownership Limits) in connection with any Transfer or class of
Transfers or any ownership of shares of Common Stock. In addition, the Board of
Directors may authorize any Officer to apply and administer the provisions of
this Article IV (as well as Section 5.1 relating to the Ownership Limits) in
connection with any Transfer or class of Transfers or any ownership of shares of
Common Stock. Notwithstanding the foregoing, the Board may not waive, apply or
administer any provision of this Article IV (or Section 5.1 relating to the
Ownership Limits) so as to permit a Transfer or any ownership of shares of
Common Stock that the Board, in its reasonable judgment, determines would be
reasonably likely to result in a violation of the Ownership Limits in a manner
that would be prejudicial to the U.S. federal income tax treatment of the
Members, or in violation of any applicable law. In addition, and notwithstanding
the foregoing, no Officer may apply or administer any provision of this Article
IV (or Section 5.1 relating to the Ownership Limits) so as to permit a Transfer
or any ownership of shares of Common Stock that such Officer, in his or her
reasonable judgment, determines would be reasonably likely to result in a
violation of the Ownership Limits or any applicable law, and no Officer shall be
authorized to grant or deny any approval of a Transfer pursuant to Section
4.3(a)(i) or to take any other action or make any other determination that
would, in the Board of Directors' reasonable judgment, require an exercise of
discretion by such Officer that is beyond the scope of the ministerial,
administrative and procedural authority appropriately delegated to such Officer
hereunder.
4.9. Minimum Ownership Amount. Until such time as the Company shall
become subject to Section 13 or 15(d) of the Securities Exchange Act, any
Transfer that would result in the Transferor or the Transferee owning less than
the Minimum Ownership Amount (except to the extent that, in such Transfer, the
Transferor Transfers all of its shares of Common Stock to a single Transferee
and, upon such Transfer, ceases to own any shares of Common Stock) shall be
prohibited. The "Minimum Ownership Amount" shall mean an amount of Common Stock
(subject to adjustment as indicated below) equal to the least of (a) 175,000
shares of Common Stock, (b) the aggregate amount of shares of Common Stock
purchased by the Transferor on the Closing Date (if any), and (c) solely with
respect to a Shareholder that Transfers shares in a Private Sale pursuant to
Section 4.13, the aggregate amount of shares of Common Stock owned by such
Shareholder immediately after such Private Sale. The Minimum Ownership Amount
shall be subject to adjustment by the Board of Directors as it may determine, in
its sole discretion, is necessary due to the issuance of additional shares of
Common Stock, to reflect any recapitalizations, stock splits, combinations and
other similar events, or for any other reason to ensure that the number of
holders of Common Stock does not exceed 455.
4.10. Exchange of Non-Voting Common Stock for Voting Common Stock. (a)
Except as provided in paragraph (b) of this Section 4.10 and without limiting
Section 5.2(b), the Company shall not be obligated, in connection with Transfers
of shares of Common Stock or otherwise, to exchange shares of Non-Voting Common
Stock for shares of Voting Common Stock or vice versa.
-24-
(b) In the event of a Registered Public Offering involving a
secondary component or in the event of an Open Market Sale, each Shareholder
participating therein shall dispose first of any shares of Non-Voting Common
Stock held by it before disposing of any shares of Voting Common Stock. The
requirement of this Section 4.10(b) shall not limit a Shareholder's right to
participate in the secondary component of a Registered Public Offering to the
extent provided in Article VI. Prior to any such Registered Public Offering or
Open Market Sale, the Company: (i) shall establish or authorize the
establishment of a reasonable mechanism whereby shares of Non-Voting Common
Stock disposed of in such an offering or sale shall be exchanged for shares of
Voting Common Stock prior to the delivery of such shares to the intended
Transferees thereof; (ii) shall establish or authorize the establishment of a
reasonable mechanism whereby any Shareholder continuing to hold shares of
Non-Voting Common Stock after the consummation of a Registered Public Offering
may exchange such shares for shares of Voting Common Stock; and (iii) may, to
the extent that the Board of Directors deems advisable in its sole discretion
(pursuant to a Supermajority Vote), establish or authorize the establishment of
a reasonable mechanism whereby any Shareholder or other Person acquiring shares
of Voting Common Stock may exchange such shares for shares of Non-Voting Common
Stock and/or exchange shares of Non-Voting Common Stock for shares of Voting
Common Stock, in each case (i), (ii) and (iii) subject to the Ownership Limits
and applicable law and on such terms and conditions as the Company (or, solely
in the case of clause (iii), the Board of Directors acting by a Supermajority
Vote) may approve or authorize as necessary or advisable in order to facilitate
Transfers or to ensure compliance with the Ownership Limits and applicable law.
4.11 Preemptive Rights. (a) Upon the issuance by the Company of any
Common Stock (or rights to acquire Common Stock) at any time prior to the
consummation of an Initial Public Offering, each Shareholder shall have
preemptive rights to purchase Common Stock (unless the Subject Issuance (as
defined below) involves rights to acquire Common Stock, in which case each
Shareholder shall have preemptive rights to purchase such rights) from the
Company, all as provided in this Section 4.11; provided, however, that in the
event of an issuance by the Company of any Common Stock (or rights to acquire
Common Stock) at any time prior to the consummation of an Initial Public
Offering, at a price per share equal to or greater than $11.40 (as adjusted by
the Board of Directors to reflect any recapitalizations, stock splits,
combinations and other similar events), Non-Founder Shareholders shall have
preemptive rights only if one or more Founders (or any of their Affiliates)
purchases (or irrevocably commits to the Company in writing to purchase) Common
Stock (or rights to acquire Common Stock, as the case may be) pursuant to an
exercise of preemptive rights arising in respect of the Subject Issuance.
Notwithstanding the foregoing, preemptive rights shall not apply with respect to
any of the following issuances (each an "Exempt Issuance"): (i) any issuance of
Common Stock upon exercise of any then-previously issued Warrants, options or
other similar rights, (ii) any issuance of Common Stock (or rights to acquire
Common Stock) pursuant to any employee benefit plan or agreement that has been
approved or authorized by the Board of Directors, (iii) any issuance
-25-
pursuant to Section 4.11(e) resulting from the prior exercise of preemptive
rights, or (iv) any issuance in connection with a business combination,
recapitalization or similar transaction. The Company may impose such conditions
upon the purchase of Common Stock (or rights to acquire Common Stock) pursuant
to this Section 4.11 as may be reasonably required to ensure compliance with the
Ownership Limits and applicable law. All shares of Common Stock purchased
pursuant to this Section 4.11 (including Common Stock purchased pursuant to any
exercise of rights to acquire Common Stock so purchased, and, to the extent
determined by the Board, any rights so purchased) shall be subject to the
provisions of this Agreement.
(b) If the Company proposes to issue Common Stock (or rights to
acquire Common Stock) other than in an Exempt Issuance and if all Shareholders
are entitled to exercise preemptive rights in respect of such issuance as
specified in Section 4.11(a) (in any such case, a "Subject Issuance"), the
Company shall give to the Shareholders, in advance of or promptly after such
Subject Issuance, written notice of such Subject Issuance setting forth the
price, amount and other terms on which such Common Stock (or rights to acquire
Common Stock) are to be issued. Each Shareholder shall thereafter have the
right, exercisable by written notice given to the Company no later than ten (10)
Business Days after the Company's notice is given to Shareholders, to purchase a
number of shares of Common Stock (or rights, as the case may be) set forth in
such Shareholder's exercise notice (subject to Section 4.11(c)), at the price
and on the other terms set forth in the Company's notice. Any such exercise
notice given by a Shareholder pursuant to this Section 4.11 shall constitute an
irrevocable commitment of such Shareholder to purchase from the Company the
shares of Common Stock (or rights) specified in such exercise notice, subject to
the conditions of this Section 4.11. The closing of the purchase of such Common
Stock (or rights to acquire Common Stock) shall take place at a location and on
a date selected by the Company, which date shall be a reasonable period of time
before or after the consummation of the Subject Issuance.
(c) The number of shares of Common Stock (or rights to acquire
Common Stock) that a Shareholder may purchase pursuant to an exercise of
preemptive rights under this Section 4.11 shall be no greater than the lesser of
(i) such number as is necessary to ensure, as nearly as practicable, that the
number of shares of Common Stock owned by such Shareholder on a Fully Diluted
Basis, as a percentage of all Common Stock outstanding on a Fully Diluted Basis,
immediately prior to the Subject Issuance (and any issuances pursuant to this
Section 4.11 in connection therewith) would equal such percentage immediately
thereafter, and (ii) the highest number that would be permitted under the
Ownership Limits. The Company shall determine the maximum allocation of shares
of Common Stock (or rights to acquire Common Stock) available to each
Shareholder pursuant to this Section 4.11 after taking into account the Subject
Issuance and the total number of shares of Common Stock (or rights to acquire
Common Stock) likely to be issued to all Shareholders pursuant to this Section
4.11 in connection therewith, in its sole discretion. Notwithstanding the
foregoing, no holder of warrants or other rights to acquire Common Stock issued
pursuant to an employee agreement or an employee benefit plan or otherwise
(other than the Warrants or any such rights held by a
-26-
Founder) shall be entitled to exercise preemptive rights except to the extent
that it owns Common Stock prior to such exercise, or except to the extent that
the Company approves such exercise, in its sole discretion (which it shall not
do if such exercise would result in more than 455 holders of Common Stock).
(d) If the Subject Issuance involves Voting Common Stock (or rights
to acquire the same), the Company shall permit a Shareholder exercising
preemptive rights to purchase Non-Voting Common Stock (or rights to acquire the
same, as the case may be) in lieu of Voting Common Stock to the extent necessary
to minimize any reduction in such Shareholder's allocation under this Section
4.11 that would otherwise be required pursuant to the Ownership Limits. In
addition, if the Shareholder so requests and the Company determines, in its sole
discretion, that such request is practicable, the Company may offer the
Shareholder, in lieu of securities of the kind being issued in the Subject
Issuance, rights to acquire such securities that are structured so as to
minimize the need to reduce such Shareholder's allocation in light of the
Ownership Limits.
(e) At any time during a period of 120 days following the expiration
of the 10 Business Day period referred to in Section 4.11(b), the Company may,
if it has not already done so, issue to any Person(s) shares of Common Stock (or
rights) in the Subject Issuance, in an amount no greater than that set forth,
and at a price and on other terms no more favorable to the acquiror than those
set forth in the notice of the Subject Issuance given by the Company to
Shareholders are to the Shareholders (without regard to reasonable underwriting,
sales agency and similar fees payable in connection therewith).
4.12. Drag-Along Rights. If, at any time prior to the consummation
of an Initial Public Offering, any one or more Shareholders propose to Transfer
Common Stock (and/or rights to acquire Common Stock) representing a majority of
all Common Stock then outstanding on a Fully Diluted Basis to any Person or
group of Persons, which Transfer has been approved by the Board of Directors by
a Supermajority Vote, then the Board of Directors, by Supermajority Vote, may,
in its sole discretion, require each Shareholder to sell all Common Stock (and
rights to acquire Common Stock) owned by such Shareholder to such Person or
group of Persons (and/or any members thereof and/or any Affiliates of any such
Person or members), provided that each such compelled Transfer shall occur on
terms and conditions that are no less favorable to each Shareholder (including
any Founder) than those upon which each Founder is Transferring its shares of
Common Stock (and/or rights to acquire Common Stock) in such transaction. Each
Shareholder shall cooperate with the Company in the event of such a sale and
shall take all necessary and appropriate actions in connection therewith as may
be reasonably requested by the Company (including entering into such agreements
and instruments as may be requested by the Company). Prior to the consummation
of such sale, each Shareholder shall deliver to the Company, or, at its written
direction, to an authorized representative or agent thereof, certificates
representing the shares of Common Stock (and/or rights to acquire Common Stock)
owned by such Shareholder, duly endorsed for transfer, and the Company shall
remit or cause to be remitted to each such Shareholder the total transaction
proceeds to which each such Shareholder is entitled pursuant thereto,
-27-
provided that the Company shall not be liable for any default by a Shareholder
or any transferee in connection with such a Transfer. This Section 4.12 shall
not apply with respect to (i) any issuance and sale of Common Stock by the
Company or (ii) any merger, consolidation, amalgamation or other similar
transaction of the Company that, under applicable Bermuda law, must be approved
by a vote of the Members.
4.13. Tag-Along Rights. (a) In the event that, prior to the
consummation of an Initial Public Offering, any Founder and/or any of its
Affiliates (collectively, a "Transferring Founder") Transfers shares of Common
Stock (and/or rights to acquire Common Stock) representing, on a Fully Diluted
Basis, 50% or more of such Founder's Original Number in a single transaction or
series of related transactions (a "Private Sale"), each Shareholder, other than
such Founder and its Affiliates (an "Other Transferor"), shall have the right,
in such Other Transferor's sole discretion, to sell a pro rata portion of its
shares of Common Stock (calculated as provided in clause (b) below) to the
Person or Persons to whom the Private Sale is to be made (collectively, the
"Proposed Transferee") on such terms and conditions (including executed sale
agreements and related documentation) as are, to the fullest extent practical,
no less favorable to the Other Transferor than those on which the Private Sale
is to be carried out are to the Transferring Founder, subject to the following
procedures:
(b) If a Transferring Founder intends to make a Private Sale, the
Transferring Founder shall give written notice to the Company (the "Private Sale
Notice"), at least twenty-five (25) Business Days prior to the proposed closing
date of the Private Sale (which Transfer Notice the Company shall promptly
forward to each Other Transferor), describing in detail the terms of the Private
Sale, including the class and number of shares of Common Stock to be Transferred
(including the number of shares of Common Stock underlying any rights to acquire
Common Stock to be Transferred), the amount of consideration to be received and
the identity of the Proposed Transferee, the contents of which Transfer Notice
shall be deemed Information for purposes of Section 7.5. Each Other Transferor
shall have the right, exercisable by written notice given to the Transferring
Founder (with a copy to the Company) within twenty (20) Business Days after the
Transfer Notice is forwarded by the Company, to participate in the Private Sale
on terms and conditions no less favorable than those on which the Private Sale
is to be carried out, with respect to such number of shares of Common Stock
(which may include (i) any Warrants or other rights to acquire Common Stock to
the extent the Transferor proposes to Transfer rights to acquire Common Stock
and (ii) shares of Common Stock issuable upon exercise of Warrants and other
rights that are exercised in connection with the Transfer) as are owned by the
Other Transferor and are specified by such Other Transferor in a timely notice
of exercise (a "Specified Amount"). Notwithstanding the foregoing, the number of
shares of Common Stock that each Other Transferor is permitted to Transfer in
the Private Sale (a "Private Sale Allocation") shall not be greater than the
product of: (i) the aggregate number of shares of Common Stock, on a Fully
Diluted Basis, owned and proposed to be Transferred by the Transferring Founder
in the Private Sale (the "Aggregate Amount"), and (ii) a fraction, the numerator
of which shall be (A) the number of shares of Common Stock on a Fully Diluted
Basis
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then owned by such Other Transferor, and the denominator of which shall be (B)
the aggregate number of shares of Common Stock then outstanding on a Fully
Diluted Basis. The Company shall determine such Other Transferor's Private Sale
Allocation after receiving all timely exercise notices and shall notify such
Other Transferor of its Private Sale Allocation. The number of shares of Common
Stock that the Transferring Founder may Transfer in the Private Sale shall be
reduced at the direction of the Company, such that the total amount of shares of
Common Stock to be Transferred by all Transferors (including the Transferring
Founder) in such Private Sale does not exceed the Aggregate Amount, provided,
however, that the Transferring Founder may increase the total number of shares
of Common Stock (and/or rights to acquire Common Stock) to be transferred in the
Private Sale, in which event the Private Sale Allocation of each Other
Transferor as well as the amount that the Transferring Founder may Transfer in
the Private Sale, shall be recalculated pursuant to this Section 4.13 based on
such increased Aggregate Amount. If any Other Transferor's Private Sale
Allocation exceeds its Specified Amount, the unused portion of such allocation
shall be reallocated by the Company, among the Transferring Founder and the
Other Transferors (if any) whose Specified Amounts exceed their Private Sale
Allocations, pro rata based on the respective fractions specified in clause (ii)
applicable to each such Person (including, for this purpose, the Transferring
Founder) (with such reallocation repeated until all unused Private Sale
Allocations are reallocated or no Other Transferor's Specified Amount exceeds
its Private Sale Allocation as so adjusted, whichever comes first).
(c) Any Other Transferor electing to participate in the Private Sale
pursuant to the provisions of this Section 4.13 shall be solely responsible, as
between the Transferring Founder and such Other Transferor, for ensuring the
consummation of the Transfer by the Other Transferor in the Private Sale,
provided that the Transferring Founder shall use its reasonable efforts to
facilitate the consummation thereof if the sale by the Transferring Founder is
consummated. The Company shall not be liable for any default by any Transferring
Founder, Other Transferor or transferee in connection with a Private Sale. Any
notice of such election given by a Other Transferor pursuant to this Section
4.13 shall constitute an irrevocable commitment of such Other Transferor to
sell, to the Person or Persons to which the Private Sale is to be made, shares
of Common Stock (or rights to acquire Common Stock) on the terms specified in
such Private Sale Notice, in an amount equal to the lesser of such Other
Transferor's Specified Amount and its final Private Sale Allocation, subject to
the conditions of this Section 4.13. The closing of the sale of such Common
Stock (or rights to acquire Common Stock) shall take place at a location and on
a date (not earlier than the fifth Business Day after the end of the exercise
period specified in the Private Sale Notice as selected by the Transferring
Founder, with the Company's approval (not to be unreasonably withheld), and set
forth in the Private Sale Notice or in a subsequent notice given to Other
Transferors at least 5 Business Days prior to the closing date for such Private
Sale, which closing date shall not be more than 20 Business Days after the
exercise period specified in the Private Sale Notice.
-29-
(d) If no Other Transferor elects to participate in a Private Sale
pursuant to this Section 4.13, the Transferring Founder may consummate the
Private Sale within sixty (60) Business Days after the end of the exercise
period specified in the Private Sale Notice, on terms and conditions that are no
more favorable to the Transferring Founder than the terms and conditions of the
Private Sale as specified in the Private Sale Notice.
(e) Participation in any Private Sale may be conditioned upon the
Transferring Founder and each Other Transferor transferring Voting Common Stock
(or rights to acquire the same, as the case may be) first, before transferring
any Non-Voting Common Stock (or rights to acquire the same, as the case may be),
or vice versa, provided that the foregoing shall not limit the number of shares
of Common Stock (or rights, as the case may be) included in the Private Sale
Allocation of any Other Transferor (and its Specified Number may include Voting
Common Stock and/or Non-Voting Common Stock (or rights to acquire either, as the
case may be)), and provided, further, that the consideration paid to the
Transferring Founder and each Other Transferor in respect of all shares of
Common Stock (or all rights to acquire such shares) included in the Private Sale
shall be equal on a per-share basis, for all shares of Common Stock (or all
rights to acquire such shares) transferred (taking into account the terms of any
such rights), regardless of whether or not such shares (or the shares underlying
such rights) have voting rights.
(f) The requirements of this Section 4.13 shall not apply to any
Transfer of Common Stock permitted by clauses (iii), (iv) or (v) of Section
4.3(a). In addition, the Board of Directors may, in its sole discretion
(exercised in a resolution passed by Supermajority Vote), (i) determine that
this Section 4.13 shall not apply in respect of any Private Sale, or that such
Section shall apply but shall be modified or waived to such extent as may be
necessary to effect a Private Sale, provided, however, that, with respect to any
Supermajority Vote contemplated by this Section 4.13(f), the Director nominated
by the Transferring Founder or any of its Affiliates (or, as the case may be,
his or her Alternate Director) shall abstain from voting on such proposition, in
which event such abstaining Director shall not be counted for the purposes of
determining whether a Supermajority Vote on such proposition has occurred (i.e.,
the Applicable Number for this purpose shall be equal to or greater than 67% of
the total number of votes entitled to be cast at a meeting of the Board of
Directors by all eight Directors, excluding such abstaining Director). All
determinations regarding the application of such procedures, including whether
or not the Private Sale or any participation therein by a Shareholder complies
with this Agreement, shall be made solely by the Board of Directors, in its sole
discretion, in a resolution passed by a Supermajority Vote, subject to the
proviso in the preceding sentence.
4.14. Additional Shareholders.The Company may permit other Members
(or holders of rights to acquire Common Stock) to become Shareholders from time
to time, in each case upon execution and delivery to the Company of an
assumption agreement substantially in the form of Annex E, pursuant to which
each such Member or holder
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assumes the obligations, and becomes entitled to the rights, of a Shareholder
for all purposes hereunder (except as otherwise expressly provided in Sections
2.13 and 4.11(c)), provided that no such Person shall be entitled to the
benefits of Article VI with respect to securities that are not Registrable
Securities, and such agreement may include such provisions as the Company
believes are necessary or appropriate in order to reflect: (i) such limitation
on the benefits of Article VI; or (ii) any other modification of the rights and
obligations of such Shareholder, but only to the extent that any such
modification pursuant to this clause (ii) shall not adversely affect any rights
and obligations of any other Shareholder without its consent.
ARTICLE V
RESTRICTIONS ON SHARE OWNERSHIP
5.1. Ownership Limits. (a) Notwithstanding Article IV, no Person at
any time may purchase, otherwise acquire or own any shares of Voting Common
Stock, either directly or by acquiring, directly or indirectly, an ownership
interest in any Member, if such purchase, other acquisition or ownership would
cause any Person to become a United States 9.09% Shareholder. For clarification,
the above determination shall be made without giving effect to any adjustments
to the voting rights of any Member under Bye-law 51 of the Bye-laws.
(b) Notwithstanding Article IV hereof, no Person at any time may
purchase, otherwise acquire or own any shares of Common Stock, either directly
or by acquiring, directly or indirectly, an ownership interest in any Member, if
such purchase, other acquisition or ownership would cause: (i) any Founder, any
Affiliate of a Founder or any Person to whom shares of Common Stock of a Founder
are attributed under Section 318(a)(3) of the Code (giving effect to Treasury
Regulations Section 1.958-2(d)), to own (after taking into account the Founder
Back-Attribution Convention but not the Designating Shareholder Voting Power
Convention), directly or by application of the constructive and indirect
ownership rules of Sections 958(a) and 958(b) of the Code, more than 24.5% of
the shares of Common Stock or (ii) any U.S. Person who is a Non-Founder
Shareholder, to own, directly or by application of the constructive and indirect
ownership rules of Sections 958(a) and 958(b) of the Code, more than 9.09% of
the shares of Common Stock or (iii) any U.S. Person who is not a Member, to own,
by application of the constructive and indirect ownership rules of Sections
958(a) and 958(b) of the Code, more than 9.09% of the shares of Common Stock,
but only (for purposes of this Section 5.1(b)(iii)) if such Person who is not a
Member owns, or is deemed to own by application of Section 958(a) of the Code,
any stock in the Company.
(c) Notwithstanding Article IV hereof, (1) no U.S. Person other than
the Industry Founders may purchase, otherwise acquire or own (within the meaning
of Section 958(a) of the Code) any shares of Common Stock if such Person: (i) is
directly insured by the Company or related (within the meaning of Section 953(c)
of the Code) to such an insured; (ii) knows or has reason to know that it is a
party to a contract of insurance that is reinsured by the Company (a
"reinsured") or that it is related (within the meaning of Section 953(c) of the
Code) to
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such a reinsured; and (2) no Person that is not a U.S. Person may purchase,
otherwise acquire or own any shares of Common Stock if such Person knows or has
reason to know that such shares are or would be (as the case may be) attributed
(under the rules of Section 958(a) of the Code) to a U.S. Person that is either
an insured or reinsured of the Company or related (within the meaning of Section
953(c) of the Code) to a Person that is an insured or reinsured of the Company.
(d) In the event that: (i) Under the ownership attribution rules of
Section 958(a) or (b) of the Code, shares of Voting Common Stock owned by
Securitas or any of its Affiliates are attributed to a Founder or a
Non-Specified Shareholder to whom Voting Shares of a Founder are attributed
under those ownership attribution rules (a "Burdened Non-Specified
Shareholder");
(ii) such Founder or Burdened Non-Specified Shareholder would as a
result of such attribution be treated as a United States 10% Shareholder; and
(iii) such Founder or Burdened Non-Specified Shareholder would
remain a United States 10% Shareholder after application of the voting rights
adjustment of Bye-law 51 (the occurrence of all conditions (i), (ii) and (iii)
being referred to as a "10% Shareholder Violation"), then, notwithstanding any
other provision of the Bye-laws and this Agreement:
(A) the Swiss Re Director shall promptly resign (or if such
Director does not promptly resign, shall be promptly removed by the Board
(acting without such individual)) from the Board, including any committee of the
Board, and the resulting vacancy in the C Director office shall remain unfilled,
(B) the Quorum of the Board requirement for five Directors
specified in the first sentence of Section 2.7(a) shall fall to four Directors,
who shall include both Industry Founder Directors and two additional Directors
(subject to adjustment pursuant to the remainder of Section 2.7(a)),
(C) the vote on all matters before the Board of Directors that
would have been exercisable by the Swiss Re Director shall be apportioned
equally among the Non-Designated Directors, and
(D) neither Swiss Re nor Securitas shall be entitled to
designate a Director until such time as there would no longer be a 10%
Shareholder Violation if Swiss Re or Securitas were entitled to designate a
Director (whereupon the rights of Swiss Re to nominate or appoint a C Director
pursuant to Article II shall be restored and clauses (A), (B), (C) and (D) above
shall cease to apply unless and until another 10% Shareholder Violation occurs);
provided, however, that if any 10% Shareholder Violation occurs and is not
eliminated on or prior to the 365th day after Securitas becomes aware of
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such occurrence, the First Securitas Termination Time shall be deemed to have
occurred on such 365th day.
(e) For the purposes of the Ownership Limits, the following
conventions will apply (collectively, the "Founder Conventions"):
(i) Designating Shareholder Voting Power Convention - for the
purposes of Section 5.1(a), each Designating Shareholder (unless and until the
Termination Time for such Designating Shareholder for the purposes of Section
2.12(a)(i) occurs) shall be deemed to own no less than 9.09% of the total
combined voting power of all classes of stock entitled to vote (the convention
set forth in this paragraph (i), the "Designating Shareholder Voting Power
Convention"); and
(ii) Founder Back-Attribution Convention - for the purposes of
Section 5.1(b)(i), in applying the constructive ownership rules of Section
958(b) of the Code, the rules of Section 318(a)(3) and Treas. Regs. 1.958-2(d)
of the Code shall only apply with respect to Founders and their Affiliates to
the extent that the rules would attribute to a Founder, or its Affiliate, the
Common Stock owned (directly or by application of the constructive and indirect
ownership rules of Sections 958(a) and 958(b) of the Code) by (i) a Person which
owns 25% or more of such Founder, by vote or value, or (ii) an Affiliate of such
Founder (the convention set forth in this paragraph (ii), the "Founder
Back-Attribution Convention").
(f) All determinations to be made under this Agreement in connection
with any application of the limits set forth in this Section 5.1 (collectively,
the "Ownership Limits"), including whether a Member has Transferred or acquired,
or owns, shares of Common Stock in violation of the Ownership Limits and whether
and how any violation of such limits is to be remedied, shall be made by the
Board in its sole discretion, and any such determination shall be binding on all
Members. The Company may, at any time and from time to time, request such
evidence of compliance with the Ownership Limits as shall be reasonably
satisfactory to the Company. Each Shareholder agrees to provide, promptly upon
the Company's transmittal to such Shareholder of a request therefor, any such
evidence as the Company may reasonably require.
(g) Any proposed Transfer that the Company has reasonable grounds to
believe would result in a violation of the Ownership Limits (or as to which
requested evidence of compliance with the Ownership Limits has not been provided
to the Company) will not be registered in the share register of the Company. In
the event that such a Transfer is registered, such Transfer will, upon
determination by the Company that such violation has occurred, be reversed.
Neither the Company nor the Board of Directors shall be obligated to investigate
the circumstances pertaining to any proposed acquisition or any ownership in
order to determine compliance with the Ownership Limits.
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5.2. Prompt Disposition of Shares. (a) If the Company has
reasonable grounds to believe that as a result of a Person's direct or indirect
purchase or other acquisition or ownership of shares of Common Stock (or any
rights to acquire Common Stock), one or more Members are in violation of the
Ownership Limits (or if the Company has requested evidence of compliance with
the Ownership Limits but has not received it in a timely manner), the Board of
Directors shall determine as soon as practicable and in its sole discretion
whether, and to what extent, to require any, or all, Shareholders, including the
aforementioned Person (if such Person is a Shareholder, the "Offending
Shareholder") either (i) to convert some or all of their Voting Common Stock, if
any, into Non-Voting Common Stock or vice versa but only, in the case of a
Shareholder other than the Offending Shareholder, if the conversion would not
cause the converting Shareholder to become subject to a material tax liability
or (ii) to require the Offending Shareholder to dispose of shares of Common
Stock, provided, however, that a disposition under this clause (ii) shall be
required only if the Board determines (in its sole discretion) that it would
have been reasonably practicable for such Offending Shareholder to determine
that its actions (including its activities unrelated to its ownership in the
Company) would likely result in a violation of the Ownership Limits and,
provided, further, that under no circumstances shall a Founder, or any of its
Affiliates, be required to dispose of shares of Common Stock pursuant to this
clause (ii) except to the extent that such violation relates to Section 5.1(a)
or 5.1(b) and such Founder, together with its Affiliates, has caused such
violation by increasing its direct or indirect ownership (within the meaning of
Section 958(a) of the Code but without application of Sections 958(b) of the
Code) of shares of Common Stock.
(b) Any disposition pursuant to this Section 5.2 should occur no
later than the 28th calendar day after the date on which the Board of Directors
first received notice that the aforementioned Member exceeded the Ownership
Limits and the disposing Shareholder shall make all reasonable efforts to effect
such disposition within such 28-day period. Each Shareholder agrees, upon
written request of the Company pursuant to this Section 5.2, to exchange shares
of Voting Common Stock owned by such Shareholder for shares of Non-Voting Common
Stock or vice versa as required by the Company pursuant to this Section 5.2, and
to take such further action as would be necessary to effectuate the foregoing.
To the extent practicable in the Board's sole discretion, any exchange of Voting
Common Stock for shares of Non-Voting Common Stock or vice versa required
pursuant to the foregoing shall be on a pro rata or other equitable basis.
5.3. Manner of Disposition. Any shares of Common Stock required to
be disposed of pursuant to Section 5.2 shall: (a) if purchased from a
Shareholder or Shareholders, be resold to such Shareholder or Shareholders at
the original purchase price; or (b) if otherwise acquired, be sold to any Person
(including the Company, if a sale to the Company would not cause any other
Member to exceed the Ownership Limits and the Company elects to purchase shares
of Common Stock), subject in all cases to the applicable requirements of Article
IV. In the event that a Shareholder is required to dispose of shares of
Non-Voting Common Stock pursuant to Section 5.2 hereof, to the
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extent that the Board of Directors deems practicable in its sole discretion, the
Company shall provide a mechanism whereby such shares shall be exchanged for
shares of Voting Common Stock upon the Transfer thereof, subject to the
Ownership Limits.
5.4. Issuance of Additional Securities or Repurchase of Securities.
If the Company issues or repurchases Common Stock or any other securities, the
Company may do so only in a manner that would not cause any Member to exceed the
Ownership Limits. The foregoing provisions of this Article V shall be modified
to the extent that the Board of Directors determines (in its sole discretion)
may be reasonably necessary to reflect additional issuances, the creation of new
classes of stock, recapitalizations or other similar events.
ARTICLE VI
INITIAL PUBLIC OFFERING; REGISTRATION RIGHTS
6.1. Initial Public Offering. In the future, the Company may effect
an Initial Public Offering of Common Stock and, from time to time thereafter,
one or more other Registered Public Offerings of Common Stock. The decision
whether and when to effect a Registered Public Offering, whether Shareholders
shall be allowed to participate in any such offering and the number of shares of
Common Stock to be offered in such offering for the account of the Company, if
any (a "primary component"), and the accounts of any participating Shareholders,
if any (a "secondary component"), shall be made, in each case, by the Board of
Directors in its sole discretion, to be exercised by a Supermajority Vote in
accordance with the Bye-laws. Having made such determination, with regard to a
Registered Public Offering, the Board of Directors may authorize an Officer of
the Company to determine the other terms and conditions on which such offering
shall occur. Notwithstanding the foregoing, the authority of the Board of
Directors to make such determinations contemplated in this Section 6.1 shall be
subject to the rights of Shareholders set forth in Sections 6.2 and 6.5, to the
extent necessary to give effect to such rights.
6.2. Demand Rights. (a) Subject to Section 6.3, (i) at any time
prior to the consummation of an Initial Public Offering and (A) on or after the
first anniversary of the Closing Date, any two Founders, or Shareholders
including at least two Founders, (B) on or after a date that is 18 months after
the Closing Date, any one Founder, or Shareholders including at least one
Founder or (C) on or after the fifth anniversary of the Closing Date,
Shareholders holding shares of Common Stock on a Fully Diluted Basis that
represent, in the aggregate, not less than 10% of all shares of Common Stock
then outstanding on a Fully Diluted Basis (in the case of (A), (B) or (C) of
this paragraph, individually or collectively, as the case may be, a "Demanding
Shareholder"), shall have the right to require the Company to use its best
efforts to fulfill such requirements as may be necessary to permit an Initial
Public Offering (on a firm-commitment, underwritten basis) of Registrable
Securities for the account(s) of Shareholders; and (ii) at any time after an
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Initial Public Offering has been consummated, any one Specified Shareholder, or
Shareholders including at least one Specified Shareholder (individually or
collectively, also a "Demanding Shareholder", but only, in the case of
Securitas, with respect to one Subsequent Registered Public Offering as provided
in Section 6.2(b)), shall have the right to require the Company to use its best
efforts to fulfill such requirements as may be necessary to permit a Subsequent
Registered Public Offering (on a firm-commitment, underwritten basis) of
Registrable Securities for the account(s) of Shareholders; in each case (i) and
(ii), as provided in this Article VI, by delivering written notice of such
demand to the Company specifying the number of Registrable Securities that are
held of record, and are proposed to be sold in such offering, by the Demanding
Shareholder (a "Demand Request"). If more than one Demand Request is submitted
to the Company before the Company delivers a Notice of Demand Request in respect
thereof pursuant to Section 6.2(c), then all such Demand Requests and their
Demanding Shareholders shall be treated collectively, as a single Demand Request
and a single Demanding Shareholder, respectively, provided that, if a Demand
Request is permitted to be withdrawn under Section 6.3(a), (b) or (c), and if
such request involves individual Demand Requests that have been submitted by
more than one Demanding Shareholder and are being treated collectively as a
single Demand Request under this sentence, then each such Demanding Shareholder
that submitted such an individual request shall be entitled to withdraw its own
individual request, and its determination whether or not to withdraw shall apply
solely with respect to its own individual request, provided, further, that any
such individual request or requests that are not withdrawn need not be withdrawn
and shall continue to be counted as a single Demand Request as long as,
collectively, they satisfy any requirement that may apply under Section 6.2(b)
and, if they do not, they shall be deemed to have been withdrawn as well, and
provided, further, that all Joining Requests (as defined below) shall (except as
provided in the next sentence) remain in effect as long as any one or more of
such individual Demand Requests remain in effect. Notwithstanding the foregoing,
a Founder (or, solely with respect to one Subsequent Registered Public Offering,
Securitas as provided in Section 6.2(b)) making a Joining Request shall have the
right to withdraw such request if at such time a Demand Request is permitted to
be withdrawn under Section 6.3(a), (b) or (c).
(b) Notwithstanding the foregoing, if the total number of
Registrable Securities specified in any Demand Request other than a Demand
Request for an Initial Public Offering, is less than a number of shares of
Common Stock equal to the lesser of (i) 10% of all shares of Common Stock
outstanding as of the date of such Demand Request, or (ii) shares of Common
Stock having a value of $100 million, based on the Current Market Price as of
the date of such Demand Request, then neither the rights of any Shareholder, nor
the obligations of the Company set forth in this Article VI, shall arise in
respect of such Demand Request(s), which shall be deemed null and void and
without effect and will not be counted as a Demand Request for any purpose
hereunder. Notwithstanding any provision hereof, Securitas shall be entitled to
make a Demand Request only once and only in respect of a Subsequent Registered
Public Offering (whether or not any such request is joined with another Demand
Request made by a Founder, but excluding any such request that is withdrawn and
nullified pursuant to
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Section 6.3(a), 6.3(b) or 6.3(c)), and all rights that Securitas may have under
this Article VI in its capacity as a Seller Specified Shareholder shall apply
solely with respect to one Subsequent Registered Public Offering as to which it
has made an effective Demand Request.
(c) The Company shall give prompt written notice (the "Notice of
Demand Request") of its receipt of any such Demand Request to all Shareholders
who hold of record any Registrable Securities and thereupon the Company shall
use its best efforts to effect the registration under the Securities Act of: (i)
the Registrable Securities included in the Demand Request for disposition in a
firm-commitment, underwritten public offering; and (ii) all other Registrable
Securities as to which Shareholders who are the holders thereof shall have made
a written request (a "Joining Request") to the Company for registration thereof
within fifteen (15) days after the transmittal of such Notice of Demand Request
by the Company, in each case as necessary to permit such holders, together with
a Demanding Shareholder (each, a "Seller" and, collectively, the "Sellers"), to
sell Registrable Securities in such firm-commitment, underwritten public
offering.
6.3. Obligations of the Company. The Company's obligations pursuant to
Section 6.2 above are subject to the following limitations and conditions:
(a) the Company shall not be obligated to file a registration
statement, or otherwise fulfill the requirements of Section 6.2, in response to
a Demand Request made (i) at any time within 6 months after a Registered Public
Offering effected in response to a prior Demand Request has been consummated (or
after an offering proposed in response to a prior Demand Request has been
terminated or abandoned without such prior Demand Request having been withdrawn
and nullified pursuant to Section 6.3(a), 6.3(b) or 6.3(c)), or (ii) at any time
when the Company is using its best efforts to effect a Registered Public
Offering pursuant to Section 6.2 or 6.5 but such a Registered Public Offering
has not been consummated, terminated or abandoned; provided that, if an offering
proposed to be effected in response to such Demand Request is terminated or
abandoned (A) due to the failure of the Company to perform its obligations
hereunder in any material respect or (B) due to a material decline in the market
price of the Common Stock, a material change in or affecting the business or
affairs of the Company or the Operating Company or the insurance industry, or a
material change in U.S. or international financial, political, economic or
securities market conditions that, in the good faith judgment of the managing
underwriter, after consultation with the Company and each Specified Shareholder
that proposes to sell Common Stock in such offering (a "Seller Specified
Shareholder", provided that such term shall include Securitas only with respect
to one Subsequent Registered Public Offering as to which it has made an
effective Demand Request as provided in Section 6.2(b) and shall not include
Securitas in respect of any other offering), would prevent or materially
interfere with the successful completion of the offering, then, in either case
(A) or (B), the Demanding Shareholder may withdraw such Demand Request and,
subject to the last two sentences in Section 6.2(a), such Demand Request shall
not be
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counted as a Demand Request for any purpose hereunder and, together with any
Joining Request related thereto, shall be null and void and of no further
effect;
(b) if a Demand Request is made in any period during which the Board
of Directors has determined, in its sole discretion, that filing a registration
statement (or, if one has been filed, that proceeding otherwise to fulfill the
requirements of Section 6.2) in response to such Demand Request would not be in
the best interests of the Company (because the negotiation or consummation of a
transaction by the Company is pending or other circumstances have arisen, which
negotiation, consummation or other circumstances would require disclosure by the
Company in the registration statement of material information that the Company
has a bona fide business purpose for keeping confidential and the nondisclosure
of which in the registration statement might cause the registration statement to
fail to comply with applicable disclosure requirements, or because the Company
wishes to proceed with an offering of securities for its own account or with a
recapitalization, business combination or transaction involving a distribution
of its securities), then the Company may decline to proceed with such filing or
fulfilling such requirements for such period of time as the Board of Directors
may determine, which period shall not in any event exceed 120 days during any
12-month period, provided that if, prior to the expiration of any period of time
referred to in this Section 6.3(b), the Demanding Shareholder withdraws such
Demand Request, subject to the last two sentences in Section 6.2(a), such
request shall not be counted as a Demand Request for any purpose hereunder and,
together with any Joining Request related thereto, shall be deemed null and void
and of no further effect;
(c) the Company shall be entitled to select any nationally
recognized investment bank(s) to be the managing underwriter(s) for each
Registered Public Offering in its sole discretion (subject to contractual
commitments it may have with respect thereto) and, in consultation with such
managing underwriter(s) and each Seller Specified Shareholder, to approve the
terms and conditions of each such offering (including the public offering price
and the price paid by the underwriters); provided that, if all Seller Specified
Shareholders notify the Company that such terms and conditions are unacceptable
(or if all Seller Specified Shareholders approve such terms and conditions but
the Company does not), the Demanding Shareholder may promptly withdraw its
Demand Request, in its sole discretion, whereupon, subject to the last two
sentences in Section 6.2(a), such Demand Request shall not be counted as a
Demand Request for any purpose hereunder and, together with any Joining Request,
shall be deemed null and void and of no further effect; and provided, further,
that without limiting the foregoing provisions of this paragraph regarding
consultation and approval or disapproval of the terms and conditions of any such
Registered Public Offering, in connection with any Registered Public Offering
effected pursuant to Section 6.2 in which Registrable Securities held by the
Financial Founder represent 20% or more of the Registrable Securities that are
proposed to be sold in such Registered Public Offering, the Financial Founder
shall be entitled to appoint Xxxxxxx, Xxxxx & Co. to act as the lead managing
underwriter for such Registered Public Offering (notwithstanding the fact that
the Company's preexisting contractual commitment to Xxxxxxx, Sachs & Co. may
have
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expired or been terminated, unless the arrangement set forth in paragraph 20 of
the Placement Agency Agreement has been terminated for cause, in which case the
Financial Founder shall not be entitled to appoint Xxxxxxx, Xxxxx & Co. in such
capacity).
(d) in connection with any Registered Public Offering, the Company
may require the underwriters to use their best efforts to sell their offered
securities in such a manner as does not, to their knowledge, result in any
Person owning Common Stock in excess of the Ownership Limits; and
(e) the number of shares of Common Stock to be sold in any
Registered Public Offering shall not exceed the number which the managing
underwriters consider, in good faith (after consultation with the Company and
all Seller Specified Shareholders), based on market conditions and other
relevant factors, to be the maximum number that may be sold at a price
acceptable to all Seller Specified Shareholders (the "Maximum Number"), and
shares of Common Stock shall be allocated among Shareholder participants to give
effect to this limit as provided in Section 6.6.
6.4. Underwriters' Lockup. (a) With respect to an Initial Public Offering
and the first two Subsequent Registered Public Offerings, each of the
Shareholders and the Company hereby agrees (such agreement with respect to each
such offering, an "Underwriters' Lockup"), for a period beginning on and
including the pricing date for, and ending on but excluding a day not later than
the 180th day following the consummation of, an Initial Public Offering (or, in
the case of either of the first two Subsequent Registered Public Offerings, a
day not later than the 90th day following the consummation of such offering),
whether or not effected pursuant to this Article VI, and whether or not such
Shareholder is participating or entitled to participate in such offering, to the
extent requested by the managing underwriter of such offering, not to offer,
sell, contract to sell, pledge, grant any option to purchase, make any short
sale or otherwise dispose of any shares of Common Stock, or any options or
warrants to purchase any shares of Common Stock, or any securities convertible
into, exchangeable for or that represent the right to receive shares of Common
Stock, whether then owned directly by the Shareholder (including holding as a
custodian) or with respect to which the Shareholder has Beneficial Ownership.
Notwithstanding the foregoing, no Underwriters' Lockup shall prohibit the
following:
(i) in the case of the Company, issuances of Common Stock upon the
exercise of then-previously issued Warrants, options or other rights, pursuant
to an employee benefit plan or agreement and in the Registered Public Offering
to which the Underwriters Lockup applies, and any other transaction permitted by
the managing underwriters for such offering;
(ii) in the case of any Shareholder, (A) Transfers made in the
Registered Public Offering to which the Underwriters' Lockup applies, (B) a bona
fide gift or gifts, (C) Transfers made to any trust for the direct or indirect
benefit of such Shareholder or (if applicable) the immediate family of such
Shareholder, (D) Transfers
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made to any Affiliate or Related Person of such Shareholder, or (E) Transfers
made in accordance with Section 4.3(a)(iii), whether or not during the
Investment Period; and provided, that any such Transfer pursuant to clauses (B)
through (D) above shall not involve a disposition for value and that the
Transferor in the case of a Transfer pursuant to any of clauses (B) through (D)
agrees in writing to be bound by the restrictions set forth in this Section 6.4
with respect to such offering; and
(iii) Transfers with the prior written consent of the managing
underwriter acting as such in respect of the Registered Public Offering;
provided, however, that if, during any period prior to the expiration of the
Underwriters' Lockup, the managing underwriter consents to any Transfer by a
Shareholder holding 7.5% or more of the Common Stock then outstanding on a Fully
Diluted Basis, the managing underwriter shall thereafter give consent to any
Transfer that would otherwise be prohibited by the Underwriters' Lockup by any
other Shareholder and/or the Company, to the extent that it or any one of them
elect(s) to effect a Transfer during such period.
(b) Notwithstanding the foregoing, at any time after an Initial
Public Offering and one Subsequent Registered Public Offering have been
consummated, any Shareholder that, together with its Affiliates, owns shares of
Common Stock on a Fully Diluted Basis representing less than 1% of all Common
Stock outstanding on a Fully Diluted Basis shall no longer be subject to this
Section 6.4. With respect to any Registered Public Offering, the Underwriters'
Lockup shall become effective automatically upon prior notice of the pricing
date given by the Company to the Shareholders, but shall terminate automatically
in the event that the offering is terminated or abandoned prior to the
consummation thereof.
6.5. "Piggy-Back" Rights. If the Company registers shares of Common
Stock under the Securities Act on a registration statement on Form S-1, Form S-2
or Form S-3 (or an equivalent general registration form then in effect) for
purposes of a firm-commitment, underwritten public offering of Common Stock
(other than issuances pursuant to any employee benefit plan or agreement, an
exercise of Warrants or other rights to acquire Common Stock or any merger,
amalgamation, recapitalization, exchange offer or other similar transaction and
other than pursuant to Section 6.2), the Company shall give prompt written
notice of such offering to each Shareholder who holds of record Registrable
Securities. Subject to Section 6.3, upon the written request of any such
Shareholder, given within 10 days after the transmittal of any such written
notice (which request shall specify the Registrable Securities intended to be
disposed of by such Shareholder), the Company will use its best efforts to
include in such Registered Public Offering any or all of the Registrable
Securities then owned by such Shareholder (and so specified in such request) to
the extent necessary to permit the sale or other disposition of such Registrable
Securities by such Shareholder (each, also a "Seller"), provided that any
participation in such offering by each Seller shall be on substantially the same
terms as the Company's participation therein (to the extent the Company
participates therein), and provided, further, that the number of Registrable
Securities to be included in any such Registered Public Offering, together with
any other shares of Common Stock that the
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Company wishes to be included for its own or any other Person's account, shall
not exceed the Maximum Number, and shares of Common Stock shall be allocated to
give effect to this proviso as provided in Section 6.6. Any Seller shall have
the right to withdraw a request to include Registrable Securities in any
Registered Public Offering pursuant to this Section 6.5 by giving written notice
to the Company of its election to withdraw such request, but only if the Company
receives notice of such withdrawal at least 15 days before it proposes to price
the offering. The Company may terminate or abandon any proposed Registered
Public Offering that is not effected in response to a Demand Request at any time
and for any reason in its sole discretion.
6.6. Allocation of Securities Included in a Registered Public
Offering. If the managing underwriter for any Registered Public Offering
effected pursuant to Section 6.2 or Section 6.5 shall advise the Company and the
Seller Specified Shareholders in writing that the number of shares of Common
Stock sought to be included in such offering (including those sought to be
offered by the Company or by any other Person) exceeds the Maximum Number, the
Company shall allocate shares of Common Stock to be included in such offering
pursuant to the following procedures:
(a) if such Registered Public Offering is effected pursuant to
Section 6.2, (i) first, Registrable Securities included in the Demand Request
and any Joining Requests shall be allocated pro rata among the Sellers in
proportion to the respective numbers of Registrable Securities held by such
Sellers on a Fully Diluted Basis (but not to exceed, with respect to any such
Seller, the number of Registrable Securities included by such Seller in such
Seller's Demand Request or Joining Request, as the case may be), with the unused
portion of any allocation made pursuant to this clause (i) being reallocated
among the Sellers whose allocations are smaller than the amounts of Registrable
Securities they have included in such requests ("Cutback Sellers") pro rata in
proportion to such Cutback Sellers' respective numbers of such Registrable
Securities on a Fully Diluted Basis, and repeating the procedure set forth in
this clause (i) until the Maximum Number is reached or, if earlier, all
Registrable Securities sought to be included in such offering by the Sellers are
allocated; and (ii) second, if the number of securities to be included in the
Registered Public Offering pursuant to clause (i) above is less than the Maximum
Number, any additional securities sought to be included by the Company for its
own account or that of any other Person; provided, however, that if three prior
Demand Requests have been made (and not withdrawn and nullified pursuant to
Section 6.3(a), (b) or (c) or rendered ineffective pursuant to Section 6.2(b))
as of the date of the pricing of such offering, then the Company shall receive
an initial allocation of shares of Common Stock, prior to any allocations
pursuant to clause (i) above, equal to the lesser of (A) the number of shares of
Common Stock sought to be included by it in such offering for sale for its own
account, and (B) 25% of the Maximum Number, and the allocations pursuant to
clause (i) shall be adjusted such that they apply to the balance of the Maximum
Number; and provided, further, that the Maximum Number is not exceeded, or
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(b) if such Registered Public Offering is pursuant to Section 6.5,
(i) first, Common Stock sought to be included by the Company for its own
account, (ii) second, if the number of shares of Common Stock to be registered
under clause (i) is less than the Maximum Number, Registrable Securities sought
to be included by Sellers pursuant to proper written requests shall be allocated
pro rata among the Sellers in proportion to the respective numbers of
Registrable Securities held by such Sellers on a Fully Diluted Basis (but not to
exceed, with respect to any such Seller, the number of Registrable Securities
included by such Seller in such Seller's written request), with the unused
portion of any allocation made pursuant to this clause (ii) being reallocated
among the Cutback Sellers pro rata in proportion to such Cutback Sellers'
respective numbers of such Registrable Securities on a Fully Diluted Basis, and
repeating the procedure set forth in this clause (ii) until the Maximum Number
is reached or if earlier, all Registrable Securities sought to be included in
such offering by the Sellers are allocated; and (iii) third, if the number of
shares of Common Stock to be included in the offering pursuant to clauses (i)
and (ii) above is less than the Maximum Number, any additional shares of Common
Stock sought to be included by the Company for the account of any Persons, up to
the Maximum Number.
Subject to the Ownership Limits, any shares of Common Stock to be sold for the
account of a Seller in a Registered Public Offering may include any shares of
Common Stock issuable upon the exercise of Warrants or other rights, provided
that such Seller has given the Company written notice of its intention to
exercise such rights (which may be made subject to sale of the underlying shares
in the offering) no later than the date of the Demand Request or other required
notice specifying a number of shares of Common Stock for inclusion in the
offering for the account of such Seller.
6.7. Indemnification. (a) In the event that the Company shall effect
any registration under the Securities Act of any shares of Common Stock pursuant
to Section 6.2 or Section 6.5 of this Agreement, the Company shall indemnify and
hold harmless, to the extent permitted by law, any Seller whose Registrable
Securities are included in such registration statement and any underwriter or
placement agent (each an "underwriter", provided that such term shall not be
deemed to include a seller acting in its capacity as a Seller hereunder) of such
Registrable Securities, against any losses, claims, damages or liabilities,
joint or several, or actions in respect thereof ("Claims"), to which such
indemnified party may become subject, under the Securities Act or otherwise,
insofar as such Claims arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the registration
statement or any preliminary or final prospectus contained therein, or any
amendment or supplement to the registration statement or any such prospectus
(collectively, "Registration Documents", which term shall be deemed to include
documents incorporated therein by reference), or insofar as such Claims arise
out of or are based upon the omission or alleged omission to state in any
Registration Document a material fact required to be stated therein or necessary
to make the statements made therein not misleading, and will reimburse any such
indemnified party for any legal or other expenses reasonably incurred by such
indemnified party in investigating or defending any such Claim as such expenses
are
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incurred; provided that the Company shall not be liable in any such case to the
extent that any such Claim arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any
Registration Document in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such indemnified party
specifically for use in the preparation of such Registration Document; and
provided, further, that the Company shall not be liable to any underwriter for
such indemnification with respect to any preliminary prospectus to the extent
that any such Claim results from the fact that such underwriter sold securities
to a Person as to whom it shall be established that there was not sent or given,
at or prior to the written confirmation of such sale, a copy of the prospectus
and any amendment or supplement thereto in any case where such delivery is
required by the Securities Act if the Company has previously furnished copies
thereof in sufficient quantity to such underwriter and the Claim to which such
underwriter is subject results from an untrue statement or omission of a
material fact contained in the preliminary prospectus that was identified in
writing at such time to such underwriter and corrected in such prospectus or
such amendment or supplement thereto.
(b) In connection with any registration in which any Seller is
participating, each Seller, severally and not jointly, shall indemnify, to the
extent permitted by law, and hold harmless the Company and each other Seller and
each underwriter against any Claims to which each such indemnified party may
become subject under the Securities Act or otherwise, insofar as such Claims
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any Registration Document, or insofar as any
claims arise out of or are based upon the omission or alleged omission to state
in any Registration Document a material fact required to be stated therein or
necessary to make the statements made therein not misleading; provided, however,
that such indemnification shall be payable only if, and to the extent that, any
such Claim arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Registration Document in
reliance upon and in conformity with written information furnished to the
Company by such Seller specifically for use in the preparation thereof.
(c) Any Person entitled to indemnification under Section 6.7(a) or
(b) above shall notify promptly the indemnifying party in writing of the
commencement of any Claim if a claim for indemnification in respect thereof is
to be made against an indemnifying party under this Section 6.7, but the failure
so to notify shall not relieve the indemnifying party from any liability which
it may have to any indemnified party otherwise than under Section 6.7(a) or (b),
except to the extent that the indemnifying party has actually been prejudiced by
such failure. In case any action is brought against an indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in, and, to the extent that
it chooses, to assume the defense thereof with counsel satisfactory to the
indemnified party; and, after notice from the indemnifying party to the
indemnified party that it so chooses, the indemnifying party shall not be liable
for any legal or other expenses subsequently incurred by the indemnified party
in connection with the defense thereof other than
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reasonable costs of investigation. Notwithstanding the foregoing, the Company
shall not be obligated to pay the expenses of more than one counsel (plus one
local counsel) for all indemnified parties in respect of any one Claim or action
or group of similar Claims or actions.
(d) If for any reason the foregoing indemnity is unavailable, or is
insufficient to hold harmless, an indemnified party in respect of any Claim, (i)
if the indemnified party is an underwriter, then each indemnifying party shall
contribute to the amount paid or payable by the indemnified party as a result of
any Claim in such proportion as is appropriate to reflect the relative benefits
received by the Sellers and the Company, on the one hand, and the indemnified
party, on the other, from the offering of securities to which such Registration
Documents relate, (ii) as between the Company and each Seller, the indemnifying
party shall contribute to the amount paid or payable by the indemnified party as
a result of any Claim in such proportion as is appropriate to reflect the
relative fault of the indemnifying party, on the one hand, and the indemnified
party, on the other, in connection with the statements or omissions that
resulted in such Claims, as well as any other relevant equitable considerations.
If, however, the allocation provided in clause (i) of the immediately preceding
sentence is not permitted by applicable law, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the indemnifying party and the indemnified party in
connection with the statements or omissions that resulted in such Claims as well
as any other relevant equitable considerations. The relative benefits received
by the Sellers and the Company, on the one hand, and by the underwriters, on the
other, shall be deemed to be in the same proportion as the total net proceeds
from the offering of the securities of the Company (before deducting expenses)
received by the Sellers and the Company, on the one hand, bear to the total
underwriting discounts and commissions received by the underwriters on the other
hand, in connection with such offering. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the indemnifying party or by
the indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable in respect of any Claim shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such Claim. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
(e) As a condition to their obligations under this Section 6.7, each
of the Company and the Sellers shall have received from each underwriter of
Registrable Securities included in a registration statement filed under the
Securities Act pursuant to Section 6.2 or 6.5 an undertaking to indemnify and
hold harmless, to the extent permitted by law, the Company and the Sellers
against (or if such indemnity is unavailable or is
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insufficient to hold harmless an indemnified party, to provide contribution, on
substantially the same basis provided to such underwriter in accordance with
Section 6.7(d), in respect of) any Claims to which each such indemnified party
may become subject under the Securities Act or otherwise, insofar as such Claims
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any Registration Document, or insofar as any
claims arise out of or are based upon the omission or alleged omission to state
in any Registration Document a material fact required to be stated therein or
necessary to make the statements made therein not misleading; provided, however,
that such indemnification (or contribution, as the case may be) shall be payable
only if, and to the extent that, any such Claim arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged omission
made in any Registration Document in reliance upon and in conformity with
written information furnished to the Company by such underwriter specifically
for use in the preparation thereof. Notwithstanding the foregoing, no
underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Registrable Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such underwriter otherwise has been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. The
obligation of any underwriters to provide indemnification (or contribution, as
the case may be) pursuant to this paragraph (e) shall be several in proportion
to their respective underwriting commitments and not joint.
(f) The obligations of the Company pursuant to this Section 6.7
shall be in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each officer, director,
employee and general partner of any underwriter or Seller and to each Person, if
any, who controls any underwriter or Seller within the meaning of the Securities
Act. The obligations of each Seller pursuant to this Section 6.7 shall be in
addition to any liability which such Seller may otherwise have and shall extend,
upon the same terms and conditions, to each officer, director, employee and
general partner of the Company, any underwriter or any other Seller and to each
Person, if any, who controls the Company, any underwriter and any other Seller
within the meaning of the Securities Act. The obligations of any underwriter
pursuant to this Section 6.7 shall be in addition to any liability which such
underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each officer, director, employee and general partner of the
Company or any Seller and to each Person, if any, who controls the Company or
any Seller within the meaning of the Securities Act.
6.8. Requirements with Respect to Registration. Subject to Section 6.3,
if and whenever the Company is required by the provisions of this Article VI to
use its best efforts to register any Registrable Securities under the Securities
Act, the Company shall, as promptly as practicable:
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(a) prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become and remain effective;
(b) 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 keep such registration statement current and to comply with
the provisions of the Securities Act, and any regulations promulgated
thereunder, with respect to the sale or disposition of such Registrable
Securities, but in no event shall the Company be required to do so for a period
of more than nine (9) months following the effective date of the registration
statement;
(c) furnish, to the Sellers participating in the Initial Public
Offering or other Registered Public Offering, as the case may be, copies (in
reasonable quantities) of summary, preliminary, final, amended or supplemented
prospectuses, in conformity with the requirements of the Securities Act and any
regulations promulgated thereunder, and other documents as reasonably may be
required in order to facilitate the disposition of such Registrable Securities,
but only while the Company is required under the provisions hereof to keep the
registration statement current;
(d) use its best efforts to register or qualify the Registrable
Securities covered by such registration statement under such other securities or
blue sky laws of such jurisdictions in the United States as the Sellers
participating in the offering or the managing underwriter shall reasonably
request, and do any and all other acts and things which may be reasonably
necessary to enable each participating Seller or underwriter to consummate the
disposition of the Registrable Securities in such jurisdictions; provided,
however, that in no event shall the Company be required to qualify to do
business as a foreign corporation in any jurisdiction where it is not so
qualified; to execute or file any general consent to service of process under
the laws of any jurisdiction; to take any action that would subject it to
service of process in suits other than those arising out of the offer and sale
of the securities covered by the registration statement; or to subject itself to
taxation in any jurisdiction where it has not theretofore done so unless the
Company shall have received a reasonably satisfactory indemnity in respect
thereto;
(e) notify each Seller selling Registrable Securities, at any time
when a prospectus relating to any such Registrable Securities covered by such
registration statement is required to be delivered under the Securities Act, of
the Company's becoming aware that 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
then existing, and promptly prepare and furnish to each such Seller selling
Registrable Securities and each underwriter a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter delivered to the
purchasers of such Registrable 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
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necessary to make the statements therein not misleading in the light of the
circumstances then existing;
(f) as soon as practicable after the effective date of such
registration statement, and in any event within eighteen (18) months thereafter,
make generally available to Sellers participating in the Registered Public
Offering an earning statement (which need not be audited) covering a period of
at least twelve (12) consecutive months beginning after the effective date of
the registration statement, which earning statement shall satisfy the provisions
of Section 11(a) of the Securities Act, including at the Company's option, Rule
158 thereunder;
(g) deliver promptly to each Specified Shareholder (notwithstanding
the application of Section 2.12) that is a Seller participating in the offering
and to one attorney (if any) who has been selected to represent all Sellers
participating in the offering pursuant to Section 6.9(c), upon such Specified
Shareholder's or such counsel's written request, copies of all correspondence
between the SEC and the Company, its counsel or auditors and all memoranda
relating to discussions with the SEC or its staff with respect to the
registration statement and permit each such Seller to do such investigation,
upon reasonable advance notice, with respect to information contained in or
omitted from the registration statement as it deems reasonably necessary. Each
such Seller agrees that it will use its best efforts not to interfere
unreasonably with the Company' business when conducting any such investigation;
(h) provide a transfer agent and registrar for all such Registrable
Securities covered by such registration statement not later than the effective
date of such registration statement, which transfer agent and registrar may be
the Company, subject to any applicable law or regulations;
(i) obtain an opinion from the Company's counsel and "cold comfort"
letters from the Company's independent public accountants (including one letter
when such registration statement goes effective and one at the closing) in
customary form and covering such matters of the type customarily covered by such
opinions and "cold comfort" letters;
(j) use its best efforts in connection with an Initial Public
Offering to have such Registrable Securities listed on a U.S. securities
exchange or included for quotation in the Nasdaq Stock Market, as selected by
the Board of Directors in its sole discretion, and thereafter, in connection
with any other Registered Public Offering, to have such Registrable Securities
listed or included for quotation, as the case may be, on the market that at such
time is the primary market for the Common Stock as determined by the Board of
Directors in its sole discretion;
(k) make available its employees and personnel (including senior
executive officers of the Company) to the managing underwriters for meetings
with prospective investors and otherwise provide assistance and cooperation in
connection with any road show or other marketing efforts with respect to an
offering or sale of the
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Registrable Securities (in each case, at such time and under such circumstances
as would not unreasonably disrupt the conduct of the business of the Company or
the Operating Company);
(l) make available for inspection by any Specified Shareholder
including Registrable Securities in such Registration, any managing underwriter
participating in such disposition pursuant to such registration statement, the
attorney, accountant or other agent representing any such Specified Shareholder
or managing underwriter in connection with such registration and such counsel
(if any) as may be appointed to represent all Sellers pursuant to Section
6.9(c), all financial and other records, pertinent corporate documents and
properties of the Company, if any, as shall be reasonably necessary to enable
them to exercise their due diligence responsibility, and cause the Company's
officers, directors and employees to supply all information reasonably requested
by such Specified Shareholder, managing underwriter or attorney in connection
with such registration statement (in each case, at such time and under such
circumstances as would not unreasonably disrupt the conduct of the business of
the Company or the Operating Company);
(m) provide a CUSIP number for all Registrable Securities, not
later than the effective date of the registration statement;
(n) if required by the underwriters for any underwritten offering
pursuant to this Article VI, the Company and each Seller participating in such
offering shall enter into an underwriting agreement with the managing
underwriter, and each such Seller shall sell its Registrable Securities on the
basis provided in such underwriting agreement and shall execute and deliver its
shares and all questionnaires, powers of attorney, custody agreements and other
similar documents reasonably required under the terms of such underwriting
agreement; any such underwriting agreement shall also contain such
representations, warranties, indemnities and contributions as are customary in
agreements of that type and are consistent with this Article VI;
(o) if Xxxxxxx, Xxxxx & Co. serves as the managing underwriter for
a Registered Public Offering, to the extent required by applicable law, a
Qualified Independent Underwriter (as defined in Conduct Rule 2710 of the
National Association of Securities Dealers, Inc., a "QIU") shall be retained,
and the Company shall pay such fees and expenses (other than underwriting
discounts and commissions) of such QIU as are customary for a QIU acting in its
capacity as a QIU; and
(p) if Xxxxxxx, Sachs & Co. serves as the managing underwriter for
a Registered Public Offering and proposes thereafter to act as a market-maker in
the Common Stock, the Company and Xxxxxxx, Xxxxx & Co. will enter into an
agreement providing for a market-maker prospectus on customary terms and
conditions, provided that nothing shall limit the right of the Board of
Directors to determine the primary securities market on which the Common Stock
is listed or quoted.
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The Company may require each Seller of Registrable Securities as to which any
registration is being effected to furnish the Company such information regarding
such Seller and the distribution of such securities as the Company may from time
to time reasonably request in writing in order to satisfy disclosure
requirements relating to selling shareholders.
6.9. Expenses. (a) The Company shall be obligated to pay
Registration Expenses incurred only in connection with the first three Demand
Requests made by any particular Founder pursuant to Section 6.2, provided that,
if more than one Founder makes a Demand Request in connection with a particular
offering, only one such Founder shall be treated for this purpose as having made
a Demand Request in such offering, which Founder shall be the one that has made
the fewest number of Demand Requests or, if there is more than one such Founder,
as such Founders may agree or, if they do not agree, any such Founder selected
by the Company, and provided, further, that in determining the number of Demand
Requests made by any Founder for the purpose of this sentence, a Demand Request
shall be counted unless (i) such Demand Request is withdrawn and nullified
pursuant to Section 6.3(a), (b) or (c), (ii) the Registration Statement fails to
become effective (other than because such Demand Request has been withdrawn
without being permitted to be nullified as aforesaid) or (iii) the Registered
Public Offering fails to be consummated due to the failure of the Company to
perform its obligations hereunder. The Company shall be obligated to pay
Registration Expenses incurred in connection with a Demand Request made by a
Founder and described in any of the foregoing clauses (i), (ii) and (iii), prior
to such Founder's fourth Demand Request. The Company shall be obligated to pay
Registration Expenses in connection with Securitas's Demand Request made
pursuant to Section 6.2. In determining when Securitas's Demand Request shall
have taken place for the purpose of the preceding sentence, a Demand Request
made by Securitas shall be counted as Securitas's one Demand Request unless any
of the foregoing clauses (i), (ii) and (iii) applies. The Company shall be
obligated to pay Registration Expenses incurred in connection with a Demand
Request made by Securitas and described in any of the foregoing clauses (i),
(ii) and (iii). The Company shall pay Registration Expenses incurred in
connection with each Registered Public Offering effected pursuant to Section
6.5.
(b) Registration Expenses incurred in connection with the fourth or
any subsequent Demand Request for a Registered Public Offering made by the same
Founder (or by Shareholders including the same Founder), shall be payable by the
Sellers in proportion to the amount of shares of Common Stock sold for their
respective account(s) in such offering, or pursuant to such other arrangements
as the Company and the Sellers may agree.
(c) If one or more Seller Specified Shareholders are participating
in a Registered Public Offering pursuant to this Article VI, they shall be
entitled to select one counsel (reasonably acceptable to the Company) to
represent all Sellers in connection with such offering, and the reasonable fees
and expenses of such counsel shall be deemed to be Registration Expenses for
such offering, payable as provided in this Section 6.9. If
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no Seller Specified Shareholders are participating in such offering or if they
are participating in such offering but do not agree to a selection of such
counsel, the Company shall be entitled to select such counsel. Nothing in this
Section 6.9 shall prohibit a Seller from retaining separate counsel at such
Seller's own expense.
(d) All expenses incurred by any Seller in connection with a
Registered Public Offering pursuant to this Article VI that are not Registration
Expenses shall be payable by such Seller.
6.10. Exchange Act Filings, Rule 144. If at any time the Company
registers any of the Shares pursuant to Section 12(b) or 12(g) of the Securities
Exchange Act, the Company will thereafter (until such time, if any, as the
Shares are deregistered under the Securities Exchange Act) file reports in
compliance with the Securities Exchange Act and will, at the Company' expense,
forthwith upon the request of any Shareholder seeking to transfer Shares
pursuant to Section 4.5, deliver to such Shareholder a certificate, signed by an
Officer of the Company, containing the statement contemplated by the third
sentence of paragraph (c)(1) of Rule 144 (unless the Company has already made
the statement contemplated by the second sentence of said paragraph (c)(1)).
ARTICLE VII
MISCELLANEOUS
7.1. Accounting; Financial Statements and Other Information. The
Company will maintain a system of accounting established and administered in
accordance with United States generally accepted accounting principles ("U.S.
GAAP"), and will set aside on its books all such proper reserves as shall be
required by U.S. GAAP. Prior to the consummation of an Initial Public Offering,
the Company will deliver to each Shareholder:
(a) within 90 days after the end of each fiscal year of the Company,
consolidated balance sheets of the Company as at the end of such year and the
related consolidated statements of income, stockholders' equity and cash flows
of the Company for such fiscal year, setting forth in each case in comparative
form figures for the previous fiscal year, all in reasonable detail and
accompanied by a report thereon of independent certified public accountants of
recognized standing selected by the Company which report shall state that such
consolidated financial statements present fairly in all material respects the
financial position of the Company as at the dates indicated and the results of
its operations and its cash flows for the periods indicated in conformity with
U.S. GAAP applied on a basis consistent with prior years (except as otherwise
specified in such report) and that the audit by such accountants in connection
with such consolidated financial statements has been made in accordance with
generally accepted auditing standards;
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(b) within 45 days after the end of each of the first three fiscal
quarters of the Company, consolidated balance sheets of the Company as at the
end of such quarter and the related consolidated statements of income,
stockholders' equity and cash flows of the Company for such fiscal quarter,
setting forth, in each case in comparative form, figures for the previous fiscal
quarter, all in reasonable detail; and
(c) within 90 days after the end of each fiscal year of the Company,
a statement of whether the Company believes, based upon reasonable inquiry, that
it is or is not a "passive foreign investment company" for U.S. federal income
tax purposes under the Code.
7.2. Legend on Stock Certificates, Etc. Each certificate
representing shares of Common Stock shall contain a legend, and the Company will
add on each such certificate hereafter issued by the Company during the term of
this Agreement, legends, in addition to any other legend required by the Board
of Directors or the Company pursuant to the Bye-laws or applicable law, reading
substantially as follows:
"Any sale, assignment, transfer or other disposition, or any pledge
or other encumbrance, of the securities represented by this certificate is
restricted by, and the rights of the holder of such securities are subject
to, the terms and conditions contained in the Shareholders' Agreement,
dated as of November 21, 2001, as it may be amended from time to time, and
the Bye-laws, which are available for examination at the registered office
of the corporation. In addition to the foregoing restrictions, these
securities have not been registered under the U.S. Securities Act of 1933
(the "Securities Act") or the securities laws of any U.S. state or other
jurisdiction and may not be sold, assigned, transferred or otherwise
disposed of, or pledged or otherwise encumbered, except in accordance with
an available exemption from registration under the Securities Act and in
accordance with the applicable securities laws of any U.S. state or other
jurisdiction."
In connection with any Transfer of Shares that, upon the
consummation thereof, would become Freely Transferable Shares, and in respect of
any shares of Common Stock that have already become Freely Transferable Shares,
the Company shall, upon the request of any Shareholder or other holder thereof,
exchange the certificates representing such shares for certificates from which
the legend provided in this Section 7.2 shall have been removed, provided that
if the Board or the Company so determines, such certificate may include any
legend permitted pursuant to Bye-law 56 of the Bye-laws (including with regard
to restrictions on Transfers in violation of the Ownership Limits).
The Company will maintain an executed counterpart of this Agreement
on file in its principal office and will make such counterpart available for
inspection. The Company shall not transfer on its books any certificates
representing shares of Common
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Stock, or other shares of capital stock, nor issue any certificates in lieu
thereof unless all the conditions hereof have been complied with, and a
purported transfer not in accordance with the terms hereof shall be void.
7.3 Acknowledgment. Each Shareholder acknowledges and agrees that none of
the Founders nor any of their respective Affiliates is a guarantor of, or is
otherwise responsible for, the Company's profitability or viability. Each
Shareholder further acknowledges that the organization of the Company and the
provisions of this Agreement are designed to ensure that no Shareholder,
together with its Affiliates, has control over, or exercises a controlling
influence over, the business or affairs of the Company. Each Shareholder further
acknowledges that the Company and the Founders have executed an agreement with
Xxxxxxx, Sachs & Co. pursuant to which Xxxxxxx, Xxxxx & Co. is appointed as
exclusive placement agent for the initial, private offering of the Common Stock
(the "Placement Agency Agreement"), which agreement provides for the Founders to
transfer to the Company, and for the Company to assume, all of the Founders'
obligations and liabilities under or pursuant to the Placement Agency Agreement
effective upon the execution by the Company of such agreement, as of the Closing
Date.
7.4 Waiver of Claims; Insurance. (a) Each Shareholder agrees to waive any
claim or right of action it might have, whether individually or by or in the
right of the Company or the Operating Company, against any Director, any
Alternate Director, any Officer or the Representative on account of any action
taken or failure to take action by any such Person in his or her capacity as a
Director, Alternate Director or Representative, provided that such waiver shall
not extend to any matter with respect to any fraud or dishonesty, which may
attach to any such Person.
(b) The Company shall obtain and maintain directors' and officers'
liability insurance for the benefit of all the Directors, Alternate Directors
and Officers and the Representative (and, if the Board of Directors so
determines in its sole discretion, any employees of the Company or the Operating
Company) on such terms and conditions as the Board of Directors shall approve in
its sole discretion.
7.5 Confidentiality. (a) Each Shareholder acknowledges that it has
acquired, and may in the future acquire, and the Company acknowledges that it
and the Operating Company have acquired and may in the future acquire,
non-public information with respect to the Company, the Operating Company, the
Founders and their respective Affiliates and/or the affairs of each of the
foregoing Persons (the "Information"). Each Shareholder shall, and shall cause
each of its Affiliates and its and their respective directors, officers,
members, partners, employees, representatives and agents (and the Company shall,
and shall cause each of its Affiliates and its and their respective directors,
officers, employees, representatives, agents and consultants (including the
Representative)) (all such Persons, including each Shareholder, collectively,
the "Covered Persons") to, refrain from disclosing Information to any Person
other than in accordance with this Section 7.5. This Section 7.5 shall continue
to apply regarding any Information with respect to any Specified Shareholder
and/or its Affiliates whether or not
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any of such Specified Shareholder's rights hereunder have terminated pursuant to
Section 2.12.
(b) In addition, each Shareholder shall refrain, and shall cause
each of its Covered Persons to refrain, from using Information to compete with
the business conducted by the Company or the Operating Company anywhere
worldwide, except (i) for Information that was developed or provided by such
Shareholder, and (ii) with the written consent of the Person who developed or
provided such Information to the Shareholder proposing to use it (or to permit
it to be used).
(c) The foregoing restrictions shall not apply with respect to any
Information to the extent that such Information was (i) previously known to a
Shareholder through a source (other than any Founder, the Company, the Operating
Company or any Covered Person) not known by the Shareholder to be bound by any
obligation to keep the Information confidential, or (ii) is later lawfully
obtained by such Shareholder from sources (other than any Founder, the Company,
the Operating Company or any Covered Person) not known by the Shareholder to be
bound by any obligation to keep such Information confidential. Notwithstanding
any provision of this Article VII, however, the obligation to keep Information
confidential, and to otherwise use Information in accordance with this Section
7.5, shall apply, in respect of any Information developed by a Shareholder and
provided by such Shareholder to the Company, the Operating Company or another
Shareholder (and/or to their respective Covered Persons), to all Persons other
than the Shareholder developing and providing such Information (which
Shareholder shall be permitted to disclose and use such Information without
regard to this Section 7.5) until such time as such developing or providing
Shareholder shall indicate otherwise in writing.
(d) Information may be disclosed to the Covered Persons (other than
partners) of any Shareholder who need to know such Information (and, in the case
of partners of any Shareholder, summary Information that is not competitively
sensitive may be disclosed to the partners of such Shareholder), in each case in
connection with the evaluation of the Shareholder's investment in the Company,
so long as the Person making the disclosure informs such Covered Persons of the
non-public nature of such Information and instructs them to treat such
Information confidentially and to use such Information for no purpose other than
the purposes contemplated in this clause (d), and so long as the Shareholder and
any of its Affiliates take and direct such Covered Persons to take (as
applicable) all reasonable steps necessary to restrict access to such
Information and to guard its confidentiality. It is understood that the Swiss Re
Director may share Information that he or she receives as a Director with
Securitas and Conning, in each case while such entity is a Shareholder, and each
such entity shall treat such shared Information as Information that is received
from the Company and that is subject to this Section 7.5. The prior sentence is
not intended to limit any fiduciary duty that the Swiss Re Director may have as
a Director of the Company with regard to any Information other than to permit
such Director to share Information as specified in the prior sentence.
-53-
Securitas agrees to be liable for any action of the Swiss Re Director that does
not comply with the prior two sentences.
(e) Prior to an Initial Public Offering, a Shareholder proposing to
Transfer shares of Common Stock may request the Company to provide to a proposed
transferee the Information regularly made available to Shareholders by the
Company (and/or, in the case of a Specified Shareholder or a Shareholder that,
together with its Affiliates, owns 5% or more of the outstanding Common Stock on
a Fully Diluted Basis, such additional Information as such Specified Shareholder
or Shareholder may reasonably request) as may reasonably be required in
connection with such Transfer. Subject to the execution of confidentiality
agreements acceptable to the Company (and, if applicable, acceptable to any
other Shareholder that developed or provided such Information to the Company),
any reasonable limitations imposed by the Board and other applicable legal
considerations, the Company shall comply with such requests.
(f) Any Information may be disclosed if and as required as a result
of any governmental investigation, court order, subpoena, deposition,
interrogatory, request for documents, civil investigative demand, or similar
legal duress, provided that, if reasonably practicable, prior to disclosure the
Shareholder contemplating disclosure gives the Company (and, if applicable, any
Founder that developed or provided such Information to the Company or the
disclosing Shareholder) prompt written notice of such requirement so that the
Company (and such Founder, if applicable) has a reasonable opportunity prior to
disclosure to seek a protective order and the disclosing Shareholder, if
requested by the Company, shall assist the Company, and/or shall cause Covered
Persons to assist the Company in obtaining protective orders or undertakings
that confidential treatment will be afforded any of such Information so
furnished and, if disclosure of any such Information is required, only that
portion of such Information as to which disclosure is so required shall be
disclosed.
(g) Any Information may be disclosed to the extent reasonably
necessary for any Shareholder to comply with applicable securities laws and
regulations and stock exchange requirements and the applicable regulations of
other regulatory agencies having jurisdiction over such Shareholder.
(h) Information may be disclosed with the prior written consent of
the Company and, if applicable, of the Shareholder that developed or provided
such Information to the Company or the Shareholder proposing to disclose it or
to permit it to be disclosed.
7.6 Competition. (a) The Shareholders agree that each Shareholder
and its Affiliates, officers, directors, employees and agents may, alone or in
combination with any other person, engage in activities or businesses, make
investments in and acquisitions of any person, and enter into partnerships and
joint ventures with any person, whether or not competitive now or in the future
with the businesses or activities of the Company, and neither the Company nor
any Shareholder shall have the right to disclosure of any
-54-
information in regard thereto (except to the extent required by, or reasonably
necessary to ensure each Shareholder's and the Company's compliance with,
applicable law, including the Code), to participate therein, or to derive any
profits therefrom. Notwithstanding the foregoing, this Section 7.6 shall not
permit any Shareholder to use Information in a manner prohibited by Section 7.5,
unless such Information was developed by or provided to the Company or another
Person by such Shareholder.
(b) The Shareholders agree that no Shareholder, nor any Affiliate,
officer, director, employee and agent thereof, shall have any obligation to
refer to the Company any business opportunities presented or developed by any of
them.
(c) The Shareholders acknowledge that certain Shareholders
(including AIG, Chubb and Affiliates of Securitas) are, and may in the future
be, engaged in businesses and activities which, directly or indirectly, compete
with the businesses of the Company and the Operating Company. The Shareholders
agree that no violation of this Agreement shall exist as a result of, and no
inference of any such violation may be drawn from: (i) the fact that a director,
officer or employee of a Shareholder or any Affiliate thereof that is familiar
with the activities and operations of the Company or the Operating Company (as a
director, officer or employee of the Company or the Operating Company or
otherwise) engages in, or participates in a supervisory capacity relating to, a
similar or competing activity (it being understood that such circumstances are
expected to occur); or (ii) the existence of any activity or business of any
Shareholder or Affiliate thereof which is similar to or competes with, directly
or indirectly, the business of the Company or the Operating Company.
7.7 Amendment and Termination of this Agreement and the Bye-laws.
(a) Neither this Agreement nor any provision hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
(i) each of the Founders, (ii) Securitas, but only if such change, waiver,
discharge or termination materially and adversely affects the rights of
Securitas hereunder as a Specified Shareholder (including the rights of Swiss Re
under this Agreement) and (iii) Non-Founder Shareholders (which may include
Securitas if it is a Shareholder) holding in the aggregate 50% of all shares of
outstanding Common Stock held by Non-Founder Shareholders as of a date within
sixty (60) days prior to the date of such instrument. Notwithstanding the
foregoing, (i) the Board of Directors (or any Officer authorized by the Board)
may apply and administer, and the Board of Directors may waive (in writing or
orally, except that any such oral waiver shall be recorded in writing) the
provisions of this Agreement, in each case to the extent expressly permitted by
this Agreement (including by Section 4.8(b) and Section 5.1(e)) and (ii) the
Company may, when authorized by a Board resolution, modify in a writing signed
by the Secretary any of the provisions of this Agreement in order to cure any
ambiguity, to correct or supplement any provision herein that may be defective
or inconsistent with any other provision herein or in the Bye-laws or to make
any other provisions with respect to matters or questions arising hereunder or
under the Bye-laws, provided that any such action pursuant to this clause (ii)
shall not adversely affect the
-55-
rights or obligations of the Company or any Shareholder hereunder in any
material respect.
(b) No provision of the Bye-laws may be rescinded, altered or
amended and no new Bye-law may be made except by an instrument in writing signed
by (i) each of the Founders, (ii) Securitas, but only if such rescission,
alteration or amendment materially and adversely affects the rights of Securitas
hereunder as a Specified Shareholder (including the rights of Swiss Re
hereunder) and (iii) Non-Founder Shareholders (which may include Securitas if it
is a Shareholder) holding in the aggregate 50% of all shares of outstanding
Common Stock held by Non-Founder Shareholders as of a date within sixty (60)
days prior to the date of such instrument.
(c) Any Shareholder who holds no Common Stock (other than Freely
Transferable Shares), no Warrants and no other rights to acquire Common Stock
that are subject to this Agreement shall cease to be a Shareholder and a party
to this Agreement, provided that such cessation shall not affect any rights,
obligations or liabilities that have arisen hereunder prior thereto.
(d) Notwithstanding the foregoing, the rights and obligations of a
party to this Agreement may be modified or waived by the Company with the prior
written consent of such party, but only if such modification or waiver does not
adversely affect the rights or obligations of any other party hereto.
7.8 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed, unless otherwise specified
herein, to have been duly given if delivered or mailed, first class postage
prepaid, or transmitted by telex or facsimile (a) if to the Shareholders, at
their respective addresses appearing in Schedule I hereto or at such other
address as any of the Shareholders may have furnished to the other Shareholders
and the Company in writing, and (b) if to the Company at Allied World Assurance
Holdings, Ltd, American International Building, 00 Xxxxxxxx Xxxx, Xxxxxxxx XX 00
Xxxxxxx, Xxxxxxxxx: Secretary, with a copy to Xxxxxxxx & Xxxxxxxx, 000 Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxx Xxxxx, or such other address as the
Company may have furnished to the Shareholders in writing. Any notice, request,
demand or other communication delivered hereunder will be conclusively deemed to
have been given: (i) if by personal delivery, upon the actual delivery thereof;
(ii) if by certified or registered mail, on the fifth Business Day following the
deposit thereof in the mail; and (iii) if by electronic means, on the day of
transmittal thereof if given on a Business Day during normal business hours or
on the next succeeding Business Day if given at other times. A party giving
notice, request, demand or other communication by electronic means shall send
the original thereof by personal delivery or by certified or registered mail
unless the intended recipient agrees otherwise.
7.9 Entire Agreement. This Agreement (including the Annexes,
Schedule and Exhibit hereto) constitutes the entire agreement between the
parties hereto and supersedes
-56-
all prior agreements and understandings, oral and written, between the parties
hereto with respect to the subject matter hereof.
7.10 Severability. Any provision of this Agreement that is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or lack of authorization without invalidating the remaining
provisions hereof or affecting the validity, unenforceability or legality of
such provision in any other jurisdiction.
7.11 Binding Effect; Benefit. This Agreement shall inure to the
benefit of and be binding upon the parties hereto, and their respective
successors, legal representatives and permitted assigns. Nothing in this
Agreement, expressed or implied, is intended to confer, on any person other than
the parties hereto (and (a) solely to the extent specified in Section 6.7(f),
the officers, directors, general partners and controlling Persons of any
underwriter or Seller or of the Company, (b) solely to the extent specified in
Sections 7.4, 7.5 and 7.6 the Directors, Alternate Directors, Officers and
Representatives) and (c) solely to the extent specified in Sections 2.1(b)(iii),
2.3(b), 2.4, 2.5, 2.6, 2.8, 2.11, 2.12(a)(i), 5.1(d)(iii), 7.4, 7.5, 7.6, 7.7,
7.15 and 7.16, Swiss Re), and their respective successors, legal representatives
and permitted assigns, any rights remedies, obligations or liabilities under or
by reason of this Agreement.
7.12 Assignability. Except as contemplated by Section 4.7, this
Agreement shall not be assignable by any party without the prior written consent
of each other party hereto (or by any beneficiary hereunder without the prior
written consent of the Company).
7.13 Headings. The headings contained in this Agreement are for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
7.14 Counterparts. 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.
7.15 Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
7.16 Submission to Jurisdiction. Each of the Shareholders and the
Company as parties hereto hereby irrevocably agrees that any legal suit, action
or proceeding arising out of or based upon this Agreement or the transactions
contemplated hereby may be instituted in any state or federal court in The
Borough of Manhattan, The City of New York with respect to actions brought
against it, irrevocably waives, to the fullest extent it may effectively do so,
any objection which it may now or hereafter have to the laying of venue of any
such proceeding in any state or federal court in The Borough of Manhattan, The
City of New York and irrevocably submits to the non-exclusive jurisdiction of
such courts in any such suit, action or proceeding.
-57-
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
ALLIED WORLD ASSURANCE HOLDINGS, LTD
By
--------------------------------------
Name:
Title:
AMERICAN INTERNATIONAL GROUP, INC.
By
--------------------------------------
Name:
Title:
By
--------------------------------------
Name:
Title:
THE CHUBB CORPORATION
By
--------------------------------------
Name:
Title:
-58-
GS CAPITAL PARTNERS 2000, L.P.
By: GS Advisors 2000, L.L.C.
Its General Partner
By
--------------------------------------
GS CAPITAL PARTNERS 2000 OFFSHORE, L.P.
By: GS Advisors 2000, L.L.C.
Its General Partner
By
--------------------------------------
GS CAPITAL PARTNERS 2000 GmbH&
CO. BETEILIGUNGS KG
By: Xxxxxxx Xxxxx Management GP GmbH
Its General Partner
By
--------------------------------------
GS CAPITAL PARTNERS 2000
EMPLOYEE FUND, L.P.
By: GS Employee Funds 2000 GP, L.L.C.
Its General Partner
By
--------------------------------------
STONE STREET FUND 2000, L.P.
By: Xxxxx Xxxxxx 0000, X.X.X.
Its General Partner
By
--------------------------------------
BRIDGE STREET SPECIAL
OPPORTUNITIES FUND 2000, L.P.
By: Bridge Street Special Opportunities
2000, L.L.C.
Its General Partner
By
--------------------------------------
-59-
SECURITAS ALLIED HOLDINGS, LTD
By
--------------------------------------
Name:
Title:
-60-
Annex A
DEFINITIONS
"A Director" shall have the meaning ascribed to such term in
the Bye-laws.
"Affiliate" shall mean with respect to any Person, any other
person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, such Person.
Except as provided in the next sentence, for all purposes of this Agreement, any
Common Stock or other security of the Company that is acquired, held or owned
by, or Transferred to, an Affiliate of a Shareholder, which Affiliate holds such
Common Stock or security for the benefit of a Person (including a customer of
such Affiliate) that is not an Affiliate of such Shareholder, shall be deemed in
all cases to have been acquired, held or owned by, or Transferred to, as the
case may be, such Person or customer, and not such Affiliate. The preceding
sentence shall be given no effect in interpreting or applying the provisions of
Article V, or Bye-laws 51, 63 or 64 of the Bye-laws.
"Aggregate Amount" shall have the meaning ascribed to such
term in Section 4.13(b).
"AIG" shall mean American International Group, Inc., and its
successors, but shall not include any Transferee of shares of Common Stock owned
by AIG, unless such Transferee succeeds to AIG's status as a Founder pursuant to
Section 4.7.
"AIG Director" shall have the meaning ascribed to such term in
Section 2.1(b)(i), and shall include any successor to such Director nominated
and elected in accordance with Article II.
"AIG Person" shall mean any one of AIG and its Affiliates.
"Alternate Director" shall have the meaning ascribed to such
term in Section 2.2.
"Annual General Meeting" shall mean an annual general meeting
of the Company convened in accordance with Bye-law 32 of the Bye-laws.
"Applicable Number" shall have the meaning ascribed to such
term in Section 2.6(b).
"Audit Committee" shall mean the committee of the Board of
Directors appointed pursuant to Section 2.8 and in accordance with the Bye-laws,
and any successor committee thereto.
"Auditor" shall have the meaning ascribed to such term in the
Bye-laws.
X-0
"X Director" shall have the meaning ascribed to such term in
the Bye-laws.
"Beneficial Ownership" shall have the meaning ascribed to such
term in Rules 13d-3 and 13d-5 under the Securities Exchange Act, whether or not
applicable, except that, solely for the purpose of determining "Beneficial
Ownership," (i) a Person shall be deemed to have "Beneficial Ownership" of all
shares of Common Stock that such Person has the right to acquire, whether such
right is exercisable immediately or only after the passage of time, (ii) shares
of Voting Common Stock and Non-Voting Common Stock shall be deemed to be part of
a single class of Common Stock and (iii) "Beneficial Ownership" shall be
determined without regard to any disclaimer of beneficial ownership and without
regard to the fact that the Common Stock is not registered under the Securities
Exchange Act. Correlative meanings shall also be ascribed to the terms
"Beneficially Own" and "Beneficial Owner".
"Board of Directors" or "Board" shall have the meaning
ascribed to such term in Section 2.1(a), as the same may be composed from time
to time in accordance with this Agreement and the Bye-laws.
"Burdened Non-Specified Shareholder" shall have the meaning
ascribed to such term in Section 5.1(d)(i).
"Business Day", shall mean any day other than a Saturday or
Sunday which is not a day on which banking institutions in New York City or
Bermuda are authorized or obligated by law or executive order to close.
"Bye-laws" shall mean the Bye-laws of the Company, adopted on
November 13, 2001 and appended as Annex E hereto, as the same may be amended
from time to time in accordance therewith.
"C Director" shall have the meaning ascribed to such term in
the Bye-laws.
"Chairman" shall mean the Chairman of the Board of Directors
appointed in accordance with the Bye-laws.
"Chubb" shall mean The Chubb Corporation, and its successors,
but shall not include any Transferee of shares of Common Stock owned by Chubb,
unless such Transferee succeeds to Chubb's status as a Founder pursuant to
Section 4.7.
"Chubb Director" shall have the meaning ascribed to such term
in Section 2.1(b)(ii), and shall include any successor to such Director
nominated and elected in accordance with Article II.
"Chubb Person" shall mean any one of Chubb and its Affiliates.
A-2
"Claims" shall have the meaning set forth in Section 6.7(a).
"Closing Date" shall mean the date of this Agreement.
"Closing Price" of the Common Stock on any date of
determination means the daily closing sale price (or, if no closing sale price
is reported, the last reported sale price) for the Common Stock as reported on
the Nasdaq Stock Market-National Market ("Nasdaq") on such date of determination
or, if the Common Stock is not traded on Nasdaq on any such date, as reported in
the composite transactions for the principal United States securities exchange
on which the Common Stock is so listed, or if the Common Stock is not so listed
on a United States national or regional securities exchange, the last quoted bid
price for the Common Stock in the over-the-counter market as reported by the
National Quotation Bureau or similar organization, provided that if any Dilution
Event occurs prior to the determination date, the Closing Price as determined
pursuant to the foregoing will be appropriately adjusted to reflect the
occurrence of such event.
"Code" shall mean the United States Internal Revenue Code of
1986 and the rules and regulations promulgated thereunder.
"Common Stock" shall have the meaning ascribed to such term in
the recitals to this Agreement.
"Company" shall have the meaning ascribed to such term in the
recitals to this Agreement.
"Conning" shall mean CCP Allied, LDC and its successors, but
shall not include any Transferee of shares of Common Stock owned by Conning.
"Covered Persons" shall have the meaning ascribed to such term
in Section 7.5(a).
"Credit Suisse" shall mean Credit Suisse First Boston and its
successors, but shall not include any Transferee of shares of Common Stock owned
by Credit Suisse, Swiss Re or Securitas.
"Current Market Price" per share of Common Stock as of any
determination date means the average Closing Price of a share of Common Stock
during any 15 consecutive Trading Days ending within 30 days prior to but not
including such date.
"Cutback Sellers" shall have the meaning ascribed to such term
in Section 6.6(a).
"D Director" shall have the meaning ascribed to such term in
the Bye-laws.
A-3
"Demand Request" shall have the meaning ascribed to such term
in Section 6.2(a).
"Demanding Shareholder" shall have the meaning ascribed to
such term in Section 6.2(a).
"Deputy Chairman" shall mean the Deputy Chairman of the Board
of Directors appointed in accordance with the Bye-laws.
"Designated Director" shall have the meaning ascribed to such
term in Section 2.1(b)(iii) and shall include any successor to such Director
nominated and elected or appointed by the relevant Industry Founder or Swiss Re,
as the case may be, in accordance with Article II.
"Designating Shareholder" shall have the meaning ascribed to
such term in the recitals to this Agreement and shall include any successor to
such Designating Shareholder, but shall not include any Transferee of shares of
Common Stock owned by a Designating Shareholder unless such Transferee succeeds
to such Designating Shareholder's status as a Designating Shareholder pursuant
to Section 4.7.
"Designating Shareholder Voting Power Convention" shall have
the meaning ascribed to such term in Section 5.1(e)(i).
"Dilution Event" shall mean any of the following events
occurring after the Closing Date: (1) the payment by the Company of a stock
dividend or the making by the Company of a distribution with respect to Common
Stock in shares of such stock; (2) the subdivision or split of the outstanding
shares of Common Stock into a greater number of shares of Common Stock; (3) the
combination of the outstanding shares of Common Stock into a smaller number of
shares; (4) the issuance, by reclassification of shares of its Common Stock, of
any shares of other capital stock of the Company; (5) the issuance of rights or
warrants to all holders of Common Stock entitling them to subscribe for or
purchase shares of Common Stock; or (6) the occurrence of a record date in
respect of any such event.
"Director" shall have the meaning ascribed to such term in
Section 2.1(a), and shall include, in each case, any successor to a Director
nominated and elected in accordance with Section 2.4.
"Eligible Affiliate" shall mean any of Swiss Re, a Subsidiary
of Swiss Re, Credit Suisse or a Subsidiary of Credit Suisse, but in each case
only if such Person is not a U.S. Person.
"ERISA" shall mean the United States Employee Retirement
Income Security Act of 1974 (together with the rules, regulations and class
exemptions of the United States Department of Labor thereunder).
A-4
"Executive Officer" shall mean the Chief Executive Officer and
any other officer who performs a policy making function.
"Exempt Issuance" shall have the meaning ascribed to such term
in Section 4.11(a).
"Financial Founder" shall have the meaning ascribed to such
term in the recitals to this Agreement.
"First Meeting" shall have the meaning ascribed to such term
in Section 2.7(b)(i)(A).
"First Securitas Termination Time" shall have the meaning
ascribed to such term in Section 2.12(a).
"Founder" shall have the meaning ascribed to such term in the
recitals to this Agreement and shall include any Founder's successor, but shall
not include any Transferee of Shares owned by a Founder unless such Transferee
succeeds to such Founder's status as a Founder in accordance with Section 4.7.
"Founder Back-Attribution Convention" shall have the meaning
ascribed to such term in Section 5.1(e)(ii).
"Founder Conventions" shall have the meaning ascribed to such
term in Section 5.1(e).
"Freely Transferable Shares" shall have the meaning ascribed
to such term in Section 4.6.
"Fully Diluted Basis" shall mean (i) with respect to the
shares of Common Stock outstanding on any date, the total number of shares of
Common Stock previously issued and then held by all Persons other than the
Company and its subsidiaries, plus the total number of Warrant Shares issuable
upon exercise of all Warrants and the total number of all other shares of Common
Stock issuable upon the exercise, conversion or exchange of any securities
(other than Warrants) previously issued by the Company and then held by all
Persons (but only, in the case of such securities other than Warrants, to the
extent that such other securities are exercisable, convertible or exchangeable
by their terms on such date); and (ii) with respect to the shares of Common
Stock held or owned by any Person as of any date, the number of such shares then
held by such Person, plus all Warrant Shares issuable upon exercise of Warrants
then held by such Person and all other shares of Common Stock issuable upon
exercise, conversion or exchange of securities (other than Warrants) previously
issued and then held by such Person (but only, in the case of such securities
other than Warrants, to the extent that such other securities are exercisable,
convertible or exchangeable by their terms on such date).
A-5
"General Meeting" shall mean any Special General Meeting or
Annual General Meeting.
"GSCP 2000" shall mean, collectively, GS Capital Partners
2000, L.P., GS Capital Partners 2000 Offshore, L.P., GS Capital Partners 2000
GmbH & Co. Beteiligungs KG, GS Capital Partners 2000 Employee Fund, L.P., Stone
Street Fund 2000, L.P., and Bridge Street Special Opportunities Fund 2000, L.P.
(or any one of them authorized to act on behalf of the others under this
Agreement) and their respective successors, but shall not include any Transferee
of shares of Common Stock held by GSCP 2000, unless such Transferee succeeds to
GSCP 2000's status as a Founder pursuant to Section 4.7.
"Industry Founder" shall have the meaning ascribed to such
term in the recitals to this Agreement.
"Industry Founder Director" shall have the meaning ascribed to
such term in Section 2.1(b)(ii), and shall include any successor to such
Director nominated and elected or appointed by the relevant Industry Founder in
accordance with Article II.
"Information" shall have the meaning ascribed to such term in
Section 7.5(a).
"Initial Control Person" shall have the meaning ascribed to
such term in Section 4.1.
"Initial Meeting" shall have the meaning ascribed to such term
in Section 2.7(a)(i).
"Initial Public Offering" shall mean the first Registered
Public Offering.
"Investment Period" shall have the meaning ascribed to such
term in Section 4.2.
"Joining Request" shall have the meaning ascribed to such term
in Section 6.2(c).
"Maximum Number" shall have the meaning set forth in Section
6.3(e).
"Member" shall have the meaning ascribed thereto in the
Bye-laws.
"Minimum Ownership Amount" shall have the meaning ascribed to
such term in Section 4.9, as the same may be adjusted from time to time in
accordance therewith.
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"Non-Designated Director" shall have the meaning ascribed to
such term in Section 2.1(c), and shall include any such Director, and any
successor to any such Director, nominated and elected or appointed in accordance
with Section 2.4 or 2.12.
"Non-Designating Shareholders" shall mean the Shareholders
other than the Designating Shareholders and their respective Affiliates.
"Non-Founder Shareholders" shall mean the Shareholders other
than the Founders and their respective Affiliates.
"Non-Industry Founder Director" shall mean a Director other
than an Industry Founder Director.
"Non-Designating Member" shall have the meaning ascribed to
such term in Section 2.1(c).
"Non-Specified Shareholder" shall mean the Shareholders other
than the Specified Shareholders and their respective Affiliates.
"Non-Voting Common Stock" shall mean the Company's authorized
shares of Non-Voting Common Stock, U.S. $0.01 par value.
"Notice of Demand Request" shall have the meaning ascribed to
such term in Section 6.2(c).
"Offending Shareholder" shall have the meaning ascribed to
such term in Section 5.2(a).
"Officer" shall have the meaning ascribed to such term in
Section 2.9 and shall include all such persons designated or appointed as such
from time to time in accordance with Section 2.9 and the Bye-laws.
"Open Market Sale" shall mean any Transfer of Shares in
accordance with Section 4.5.
"Open Market Transfer Certificate" shall have the meaning
ascribed to such term in Section 4.5(b).
"Operating Company" shall have the meaning ascribed to such
term in the recitals to this Agreement, including any successor thereto.
"Operating Company Board" shall have the meaning ascribed to
such term in Section 2.11.
"Original Number" shall equal (i) for any Founder, the sum of
(A) the number of shares of Common Stock owned by such Founder and its
Affiliates, in the aggregate, on the Closing Date and (B) the number of Warrant
Shares issuable upon
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exercise of the Warrants held by such Founder and its Affiliates, in the
aggregate, on the Closing Date (in each case (A) and (B) as adjusted by the
Board of Directors as necessary to reflect any recapitalizations, stock splits,
combinations and other similar events) and (ii) for Securitas, the number of
shares of Common Stock owned by Securitas on the Closing Date (as adjusted by
the Board of Directors as necessary to reflect any recapitalizations, stock
splits, combinations and other similar events).
"Other Transferor" shall have the meaning ascribed to such
term in Section 4.13(a).
"Ownership Limits" shall mean the ownership limitations set
forth in Section 5.1.
"Person" shall mean any firm, corporation, partnership or
other business, entity or person.
"Placement Agency Agreement" shall have the meaning ascribed
to such term in Section 7.3.
"Postponed Meeting" shall have the meaning ascribed to such
term in Section 2.7(a)(i).
"primary component" shall have the meaning ascribed to such
term in Section 6.1
"Private Sale" shall have the meaning ascribed to such term in
Section 4.13(a).
"Private Sale Allocation" shall have the meaning ascribed to
such term in Section 4.13(b).
"Private Sale Notice" shall have the meaning ascribed to such
term in Section 4.13(b).
"Proposed Transferee" shall have the meaning ascribed to such
term in Section 4.13(a).
"QIU" shall have the meaning ascribed to such term in Section
6.8(o).
"Quorum of Non-Designated Directors" shall have the meaning
ascribed to such term in Section 2.7(b).
"Quorum of the Board" shall have the meaning ascribed to such
term in Section 2.7(a).
"Registered Public Offering" shall mean a public offering of
Common Stock (for the account of the Company and/or other Person(s)) that is
effected pursuant to
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an effective registration statement under the Securities Act and on a
firm-commitment, underwritten basis, including any block trade of Common Stock
on a firm-commitment, underwritten basis. The term "Registered Public Offering"
includes an Initial Public Offering and any Subsequent Registered Public
Offering. A Registered Public Offering shall be deemed to have been
"consummated" when the shares of Common Stock to be purchased by the
underwriters from the Company and/or from any other participating sellers have
been delivered to and paid for by the underwriters.
"Registrable Securities" shall mean (i) any shares of Common
Stock issued pursuant to the Subscription Agreements, (ii) any shares of Common
Stock issued pursuant to, or issuable upon exercise of, the Warrants, (iii) any
shares of Common Stock issued pursuant to an exercise of preemptive rights under
Section 4.11 and (iv) any shares of Common Stock issued in exchange for, in
replacement of or otherwise in respect of any such shares in clauses (i) (ii),
and (iii) above. As to any particular Registrable Securities, such securities
shall cease to be Registrable Securities (1) 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 disposed of in accordance
with such registration statement, (2) when such securities shall have been sold
under Rule 144 under the Securities Act or (3) (a) in the case of unissued
shares issuable pursuant to the Warrants, upon the expiration of such Warrants,
and (b) otherwise, when such shares of Common Stock shall have ceased to be
outstanding.
"Registration Documents" shall have the meaning ascribed to
such term in Section 6.7(a).
"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance with the demand rights set forth in
Section 6.2 and the piggy-back rights set forth in Section 6.5, including: (1)
all SEC and stock exchange or National Association of Securities Dealers, Inc.
registration and filing fees, (2) all fees and expenses of complying with state
securities or blue sky laws (including reasonable fees and disbursements of
counsel for the underwriters in connection with blue sky qualifications of the
Registrable Securities), (3) the cost of printing or preparing any registration
statement, prospectus, offering circular, agreement among underwriters,
underwriting agreement, blue sky memorandum, share certificates and any other
documents in connection with the offering, purchase, sale and delivery of the
Shares, (4) the costs and charges of any transfer agent and registrar and any
custodian or attorneys-in-fact appointed to act on behalf of the Sellers, (e)
all messenger and delivery expenses, (5) the reasonable fees and disbursements
of counsel for the Company and the Company's independent public accountants,
including the expenses of any special audits and/or "cold comfort" letters
required by or incident to such performance and compliance, (6) the cost of
listing Registrable Securities on a U.S. securities exchange or having them
included for quotation in the Nasdaq Market in connection with the offering, (7)
the reasonable fees and expenses of one counsel selected to represent the
Sellers in connection with a Registered Public Offering as provided in Section
6.9(c) and (8) the fees and expenses of a QIU payable to the extent provided in
Section 6.8(o).
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Notwithstanding the foregoing, the term "Registration Expenses" shall not
include the fees and expenses of any counsel retained by one or more Sellers
(other than pursuant to Section 6.9(c)), or any underwriting discounts,
commissions and transfer taxes relating to the sale or disposition of
Registrable Securities for the account of one or more Sellers, nor will it
include the compensation of regular employees of the Company or any Shareholder,
which shall be paid by the Company and such Shareholder, respectively, in any
event.
"Related Person" shall mean, (a) with respect to any
individual, any other individual who is related to such individual as a sibling,
spouse or former spouse, is a direct lineal descendant or ancestor by birth or
adoption of such individual or is a spouse of such descendant or ancestor, or
any foundation, charitable organization or trust established by or for the
benefit of any of the foregoing and (b) with respect to any foundation,
charitable organization or trust, the individuals for which such foundation,
organization or trust has been established.
"Representative" shall have the meaning ascribed to such term
in Section 2.1(d).
"SEC" shall mean the United States Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act or the Securities Exchange Act.
"secondary component" shall have the meaning ascribed to such
term in Section 6.1
"Second Meeting" shall have the meaning ascribed to such term
in Section 2.7(b)(ii)(A).
"Second Postponed Meeting" shall have the meaning ascribed to
such term in Section 2.7(a)(ii).
"Secretary" shall mean the Secretary of the Company, as such
office may be occupied from time to time by a Person appointed in accordance
with Section 2.9 and the Bye-laws.
"Securitas" shall mean Securitas Allied Holdings, Ltd, and its
successors, but shall not include any Transferee of shares of Common Stock owned
by Securitas Allied Holdings, Ltd. unless such Transferee succeeds to Securitas
Allied Holdings, Ltd.'s status as a Specified Shareholder in accordance with
Section 4.7.
"Securities Act" shall mean the United States Securities Act
of 1933 and the rules and regulations promulgated thereunder.
"Securities Exchange Act" shall mean the United States
Securities Exchange Act of 1934 and the rules and regulations promulgated
thereunder.
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"Seller" shall have the meaning ascribed to such term in
Section 6.2(c).
"Seller Specified Shareholder" shall have the meaning ascribed
to such term in Section 6.3(a).
"Shareholders" shall mean; (a) all Members identified in
Schedule I hereto, including, in each case, any such Member's successor; (b) any
Transferee of shares of Common Stock who becomes a Shareholder pursuant to
Section 4.7; and (c) any other Member who becomes a Shareholder pursuant to
Section 4.14; in each case (a), (b) and (c) until such time as such Person
ceases to be a Shareholder under the terms of this Agreement.
"Specified Amount" shall have the meaning ascribed to such
term in Section 4.13(b).
"Special General Meeting" shall mean a special general meeting
of the Company convened in accordance with Bye-law 33 of the Bye-laws.
"Specified Shareholder" shall have the meaning ascribed to
such term in the recitals to this Agreement and shall include any successor to a
Specified Shareholder, but shall not include any Transferee of shares of Common
Stock of a Specified Shareholder unless such Transferee succeeds to such
Specified Shareholder's status as a Specified Shareholder pursuant to Section
4.7.
"Subject Issuance" shall have the meaning ascribed to such
term in Section 4.11(b).
"Subscription Agreement" shall have the meaning ascribed to
such term in Section 2.5.
"Subsequent Registered Public Offering" shall mean any
Registered Public Offering conducted after the consummation of the Initial
Public Offering.
"Subsidiary" of any Person shall mean (i) a corporation more
than 50% of the outstanding voting stock of which is owned, directly or
indirectly, by such Person or by one or more other Subsidiaries of such Person
or by such Person and one or more Subsidiaries thereof or (ii) any other Person
(other than a corporation) in which such Person, or one or more other
Subsidiaries of such Person or such Person and one or more other Subsidiaries
thereof, directly or indirectly, has the power to direct the policies,
management and affairs thereof.
"Supermajority Vote" shall have the meaning ascribed to such
term in Section 2.6(b).
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"Swiss Re" shall mean The Swiss Reinsurance Company and its
successors, but shall not include any Transferee of shares of Common Stock owned
by Swiss Re or Securitas.
"Swiss Re Director" shall have the meaning ascribed to such
term in Section 2.1(b)(iii).
"10% Shareholder Violation" shall have the meaning ascribed to
such term in Section 5.1(d)(iii).
"Termination Time" shall have the meaning ascribed to such
term in Section 2.12.
"Third Meeting" shall have the meaning ascribed to such term
in Section 2.7(b)(i)(B).
"Trading Day" means a day on which the Common Stock (A) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (B) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of such security.
"Transfer" shall have the meaning ascribed to such term in
Section 4.1 and shall also include any issuance, sale or other transfer of
shares of Common Stock by the Company to any Person.
"Transferee" shall have the meaning ascribed to such term in
Section 4.1 and shall also include any Person acquiring shares of Common Stock
from the Company.
"Transferee Affiliate" shall mean, at any time, a Person that
is at such time an Affiliate of the Financial Founder and owns Common Stock
which was owned at any time by the Financial Founder.
"Transferor" shall have the meaning ascribed to such term in
Section 4.1.
"Transferring Founder" shall have the meaning ascribed to such
term in Section 4.13.
"Ultimate Parent" shall mean (i) in the case of AIG or Chubb
while AIG or Chubb, as the case may be, holds Common Stock directly, AIG and
Chubb respectively (but not any Transferees thereof), and (ii) in the case of
any Person other than AIG or Chubb (or AIG and/or Chubb, in each case after they
have ceased to hold Common Stock directly), any other Person of which such
Person is a Subsidiary and that is not itself a Subsidiary of any other Person.
"U.S. GAAP" shall have the meaning ascribed to such term in
Section 7.1.
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"U.S. Person" shall mean (i) an individual who is a citizen or
resident of the United States, (ii) a corporation or partnership that is, as to
the United States, a domestic corporation or partnership, (iii) an estate or
trust that is subject to U.S. federal income tax on its income regardless of its
source and (iv) the United States and the states thereof, including any of their
political subdivisions.
"Underwriters' Lockup" shall have the meaning ascribed to such
term in Section 6.4.
"United States 9.09% Shareholder" shall mean any U.S. Person
who, after taking into account the Designating Shareholder Voting Power
Convention but not the Founder Back-Attribution Convention, both (i) owns, or is
deemed to own by application of Sections 958(a) and 958(b) of the Code, more
than 9.09% of the total combined voting power of all classes of stock of the
Company entitled to vote or more than 9.09% of the total number of shares of
Voting Common Stock, and (ii) owns, or is deemed to own by application of
Section 958(a) of the Code, any stock in the Company.
"United States 10% Shareholder" shall mean any United States
person (as defined in Section 957(c) of the Code) who, after taking into account
the Designating Shareholder Voting Power Convention but not the Founder
Back-Attribution Convention, both (i) owns, or is deemed to own by application
of Sections 958(a) and 958(b) of the Code, 10% or more of the total combined
voting power of all classes of shares of the Company entitled to vote or 10% or
more of the total number of shares of Voting Common Stock and (ii) owns, or is
deemed to own by application of Section 958(a) of the Code, any shares in the
Company.
"Voting Common Stock" shall mean the Company's authorized
shares of Voting Common Stock, U.S. $0.01 par value.
"Warrant" shall mean the warrants to acquire additional shares
of Common Stock granted or to be granted by the Company to the Founders in
connection with their subscription for shares of Common Stock on or prior to the
Closing Date.
"Warrant Shares" shall mean, as of any date, shares of Common
Stock that have been issued upon exercise of unexpired Warrants.
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