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EXHIBIT 10.10
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REGISTRATION RIGHTS AGREEMENT
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Among
ODYSSEY RE HOLDINGS CORP.
and
ORH HOLDINGS INC.
and
TIG INSURANCE COMPANY
Dated as of May 1, 2001
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TABLE OF CONTENTS
PAGE
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SECTION 1. Definitions...................................... 1
SECTION 2. Request for Registration......................... 3
SECTION 3. Piggyback Registration........................... 5
SECTION 4. Shelf Registration............................... 6
SECTION 5. Rights to Purchase New Securities................ 6
SECTION 6. Expenses......................................... 7
SECTION 7. Holdback Agreement............................... 7
SECTION 8. Preparation and Filing........................... 7
SECTION 9. Indemnification; Contribution.................... 10
SECTION 10. Information by Holders of Registrable Shares.... 12
SECTION 11. Exchange Act Compliance......................... 12
SECTION 12. Termination..................................... 12
SECTION 13. Successors and Assigns.......................... 12
SECTION 14. Assignment...................................... 13
SECTION 15. Entire Agreement................................ 13
SECTION 16. Notices......................................... 13
SECTION 17. Modifications; Amendments; Waivers.............. 13
SECTION 18. Counterparts; Facsimile Signatures.............. 13
SECTION 19. Headings........................................ 13
SECTION 20. Severability; Governing Law..................... 13
SECTION 21. Waiver of Jury Trial............................ 13
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REGISTRATION RIGHTS AGREEMENT, dated as of May 1, 2001 (this "Agreement"),
among Odyssey Re Holdings Corp., a corporation organized under the laws of
Delaware (the "Corporation"), ORH Holdings Inc. ("ORH"), a corporation organized
under the laws of Delaware, and TIG Insurance Company ("TIG"), a corporation
organized under the laws of California.
RECITALS
WHEREAS the Corporation is offering shares of common stock of the
Corporation pursuant to an underwritten public offering (the "Offering").
WHEREAS the Corporation, ORH and TIG are entering into this Agreement to
provide for certain rights and obligations with respect to the common shares of
the Corporation held by each of ORH and TIG.
NOW, THEREFORE, in consideration of the mutual agreements covenants and
conditions hereinafter set forth, the parties agree as follows:
SECTION 1. Definitions. (a) As used in this Agreement, the following
terms shall have the following meanings:
"Affiliate" shall have the meaning specified in Rule 12b-2 under the
Exchange Act, as such rule is currently in effect.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in the State of New York are authorized or required by
law or executive order to close.
"Canadian Prospectus" means a prospectus (including a short form
prospectus) prepared in accordance with applicable Canadian securities Laws for
the purposes of qualifying securities for distribution or distribution to the
public, as the case may be, in any province or territory of Canada.
"Capital Stock" means, with respect to any Person at any time, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of capital stock, partnership interests (whether
general or limited), limited liability company interests or equivalent ownership
interests in such Person.
"Commission" means the U.S. Securities and Exchange Commission or any
successor agency.
"Common Shares" means the shares of common stock, par value $0.01 per
share, of the Corporation and any securities of the Corporation into which such
shares may be converted or exchanged.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder, all as the
same shall be in effect from time to time.
"Law" means any federal, state, provincial, local or foreign statute, law
ordinance, regulation, rule, code, order, other requirement or rule of law.
"New Securities" means any Capital Stock of the Corporation, whether now
authorized or not, and rights, options or warrants to purchase such Capital
Stock, and securities of any type whatsoever that are, or may become,
convertible into or exchangeable or exercisable for Capital Stock of the
Corporation; provided that the term "New Securities" does not include (i)
securities of the Corporation issued to its employees, consultants, officers or
directors of the Corporation, or which have been reserved for issuance, pursuant
to any employee stock option, restricted stock, stock purchase, stock bonus
plan, or other similar stock agreement or arrangement approved by the board of
directors of the Corporation, (ii) securities of the Corporation issued in
connection with any stock split, stock dividend or recapitalization of the
Corporation, (iii) securities of the Corporation issued upon the conversion or
exchange of convertible or exchangeable securities of the Corporation that are
outstanding as of the date of this Agreement, or (iv) any right, option or
warrant to acquire any security convertible into or exchangeable or exercisable
for the securities excluded from the definition of New Securities pursuant to
subclause (i) above if issued pursuant to any employee stock option, restricted
stock, stock purchase, stock bonus plan or other similar stock agreement or
arrangement approved by the board of directors.
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"Permitted Transferee" means a Shareholder who has acquired rights under
this Agreement pursuant to Section 14(b).
"Person" means any individual, partnership, firm, corporation, association,
trust, unincorporated organization or other entity, as well as any syndicate or
group that would be deemed to be a person under Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended.
"Primary Shares" means, at any time, the authorized but unissued Common
Shares; provided, however, that for the purposes of Section 2, the term "Primary
Shares" shall include Common Shares held by officers and directors of the
Corporation.
"Prospectus" means the Corporation's prospectus included in the
Corporation's registration statement on Form S-1 (File No. 333-57642), as
declared effective by the Commission.
The terms "register", "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of the effectiveness of such
registration statement.
In addition, unless inconsistent with the context: (i) the term
"registration" and any references to the act of registering include the
qualification under Canadian securities Laws of a Canadian Prospectus in respect
of a distribution or distribution to the public, as the case may be, of
securities; (ii) the term "registered" as applied to any securities includes a
distribution or distribution to the public, as the case may be, of securities so
qualified; (iii) the terms "registration statement" includes a Canadian
prospectus; and (iv) any references to a registration statement having become
effective, or similar references, shall include a Canadian prospectus for which
a final receipt has been obtained from the relevant Canadian securities
regulatory authorities.
"Registrable Shares" means the Common Shares held from time to time by the
Shareholders. For purposes of this Agreement, any Registrable Shares shall cease
to be Registrable Shares (i) when they have been registered under the Securities
Act (the registration statement in connection therewith has been declared
effective) and disposed of pursuant to such effective registration statement,
(ii) when they are sold by a Person in a transaction in which the rights under
the provisions of this Agreement are neither transferred nor assigned, or (iii)
when they have been sold or distributed pursuant to Rule 144 (including, without
limitation, Rule 144(k)).
"Registration Expenses" means all out-of-pocket expenses incident to the
Corporation's performance of, or compliance with, Sections 2, 3 and 4,
including, without limitation, all registration and filing fees (including
filing fees with respect to the National Association of Securities Dealers,
Inc.), all fees and expenses of complying with applicable securities Laws
(including reasonable fees and disbursements of underwriters' counsel in
connection with any "blue sky" memorandum or survey), all printing expenses, all
internal expenses, all "road show" and marketing expenses, all listing fees, all
registrars' and transfer agents' fees, the fees and disbursements of counsel for
the Corporation and of its independent public accountants, including the
expenses of any special audits and/or "comfort" letters required by or incident
to such performance and compliance, the reasonable fees and disbursements of one
outside counsel retained by the Holders holding Common Shares being registered
(which counsel shall be satisfactory to the holders of a majority of the
Registrable Shares being registered), but excluding Selling Expenses, if any,
which shall be borne by the Holders holding Common Shares being registered, in
all cases.
"Rule 144" shall mean Rule 144 as promulgated by the Commission under the
Securities Act, as such Rule may be amended from time to time, or any similar
successor rule that may be promulgated by the Commission.
"Rule 145" shall mean Rule 145 as promulgated by the Commission under the
Securities Act, as such Rule may be amended from time to time, or any similar
successor rule that may be promulgated by the Commission.
"Rule 415" shall mean Rule 415 as promulgated by the Commission under the
Securities Act, as such Rule may be amended from time to time, or any similar
successor rule that may be promulgated by the Commission.
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"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder, all as the same
shall be in effect from time to time.
"Selling Expenses" means all underwriting discounts, commissions or
brokers' commissions and applicable transfer taxes incurred in connection with
the sale or other disposition of Common Shares or other securities for or on
behalf of a Holder's account.
"Shareholder" means any of ORH or TIG, or any holder of Common Shares to
whom the registration rights conferred by this Agreement have been transferred
in compliance with Section 14 hereof, so long as such Person holds Common Shares
(each such Person a "Shareholder" and, collectively, the "Shareholders").
"Specified Assignee" means a Shareholder who has acquired rights under this
Agreement pursuant to Section 14(a).
"Subsidiary" of any party shall mean any corporation, partnership, joint
venture, association or other business entity of which such party now or
hereafter owns, directly or indirectly, securities or other ownership interests
having ordinary voting power to elect a majority of the board of directors or
other governing body thereof.
"Voting Interest" of the Corporation means one Common Share and any other
share or unit of Capital Stock issued by the Corporation, the holders of which
are ordinarily, in the absence of contingencies, entitled to one vote in the
election of the Corporation's directors (or Persons performing similar
functions), or the approval of its management and policies, even if the right to
vote has been suspended by the occurrence of a contingency.
SECTION 2. Request for Registration. (a) At any time after the date 180
days after the date of the Prospectus, if the Corporation shall receive from any
Shareholder (in such capacity, a "Requesting Shareholder"), a written request
that the Corporation effect any registration under the Securities Act, or,
mutatis mutandis, under the securities Laws then applicable in Canada, with
respect to the sale and distribution of all or a part representing not less than
5% of the Registrable Shares in a public offering, then if the then outstanding
Commission has not prior to the date of such request (the "Demand Date")
declared effective a shelf registration statement pursuant to Rule 415 with
respect to all of the Registrable Shares (a "Shelf Registration Statement")
which is effective as of the Demand Date, the Corporation will:
(i) promptly give written notice of the proposed registration,
qualification or compliance to each of the other Shareholders
(collectively, the "Non-Requesting Shareholders"); and
(ii) as soon as practicable but in any event within 90 days, use its
reasonable best efforts to effect such registration (including, without
limitation, the execution of an undertaking to file post-effective
amendments, appropriate qualification under applicable securities Laws,
including, without limitation, "blue sky" laws, and appropriate compliance
with applicable regulations issued under the Securities Act or the
securities Laws then applicable in Canada, as the case may be) as may be so
requested and as would permit or facilitate the sale and distribution of
all or such portion of such Registrable Shares as are specified in such
request, together with all or such portion of the Registrable Shares of the
Non-Requesting Shareholder(s) joining in such request as are specified in a
written request received by the Corporation within ten (10) Business Days
after written notice from the Corporation is given under clause 2(a)(i)
above; provided that the Corporation shall not be obligated to effect, or
take any action to effect, any such registration pursuant to this Section
2:
(A) for a period of up to 120 days (a "Deferral Period"), each of
which Deferral Periods may be renewed for one additional Deferral
Period, in the case of any Deferral Period (or its renewal), if the
board of directors of the Corporation (1) determines in good faith that
(a) it is in possession of material, nonpublic information concerning an
acquisition, merger, recapitalization, consolidation, reorganization,
financing or other material transaction by or of the Corporation or
concerning pending or threatened litigation, and (b) disclosure of such
information would jeopardize any such transaction or litigation and
would be seriously detrimental to the Corporation and (2) delivers
written notice to the Requesting Shareholders and Non-Requesting
Shareholders that, in
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its good faith judgment, it would not be in the best interests of the
shareholders of the Corporation for such Registration to be effected;
provided that the Corporation shall not defer its obligation in this
manner more than once in any twelve-month period.
(B) in any particular jurisdiction in which the Corporation would
be required to execute a general consent to service of process in
effecting such registration, qualification or compliance, unless the
Corporation is already subject to service in such jurisdiction and
except as may be required by the Securities Act or applicable rules or
regulations thereunder;
(C) with respect to any Shareholder (together with its Permitted
Transferees and Specific Assignees), after the Corporation has effected
three (3) registrations pursuant to this Section 2(a); provided,
however, that any request under Section 2(a) shall be deemed not to have
been made if (i) it does not result in a registration that is declared
or ordered effective by the applicable governmental authorities or
agencies, including without limitation, the Commission, and that remains
effective for not less than 30 days (or such shorter period as will
terminate when all Registrable Shares covered by such registration have
been sold or withdrawn), or, if such registration relates to an
underwritten offering, such longer period, if any, as in the opinion of
counsel for the underwriters a prospectus is required by law to be
delivered in connection with sales of the Registrable Shares by an
underwriter or dealer (in either case, such period being the "Demand
Period"), (ii) (x) during the Demand Period such registration is
terminated by any stop order, injunction or other order or requirement
of any governmental agency or court or (y) the conditions to closing
specified in the underwriting agreement, if any, entered into in
connection with such registration are not satisfied other than by reason
of a wrongful act, misrepresentation or breach of an applicable
underwriting agreement by the selling Shareholders, or (iii) the
Requesting Holders withdraw their request for registration and bear the
Registration Expenses, all in accordance with Section 6 below; or
(D) if on or prior to the Demand Date, the Corporation has filed
with the Commission a Shelf Registration Statement on Form S-3 covering
the Registrable Shares which is being diligently pursued by the
Corporation with the Commission as of the Demand Date.
The registration statement filed pursuant to the request of the Requesting
Shareholders and any Non-Requesting Shareholder may, subject to the provisions
of Section 2(b) below, include Primary Shares.
(b) The Corporation shall be entitled to select the managing underwriter
of the underwriting; provided, however, that any such managing underwriter shall
be an investment banking firm of nationally recognized reputation reasonably
acceptable to the selling Shareholders representing a majority of the
Registrable Shares to be included in such registration. The Requesting
Shareholders and the Non-Requesting Shareholders (collectively, the "Holders")
proposing to distribute their securities through such underwriting shall enter
into an underwriting agreement in customary form with the managing underwriter
or underwriters selected for such underwriting by the Corporation reasonably
acceptable to the Corporation. Notwithstanding any other provision of this
Section 2, if the managing underwriter advises the Requesting Shareholders in
writing that the inclusion of all Registrable Shares and/or Primary Shares
proposed to be included in such registration would interfere with the successful
marketing (including pricing) of the Registrable Shares proposed to be included
in such registration, then the number of Registrable Shares and/or Primary
Shares to be included in such registration shall be reduced to such number as
shall, in the managing underwriter's opinion, not be likely to have such an
effect, which shall be included in such registration in the following order:
(i) first, the Registrable Shares requested to be included in such
registration that are held by the Requesting Shareholders (or, if
necessary, such Registrable Shares pro rata among the holders thereof based
upon the number of Registrable Shares requested to be registered by each
such holder);
(ii) second, the Registrable Shares requested to be included in such
registration that are held by the Non-Requesting Shareholders (or, if
necessary, such Registrable Shares pro rata among the holders thereof based
upon the number of Registrable Shares requested to be registered by each
such holder); and
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(iii) third, the Primary Shares.
No Registrable Shares or Primary Shares excluded from the underwriting by
reason of the managing underwriter's marketing limitation shall be included in
such registration.
(c) In the event that a registration is requested under this Section 2 and
each of the Requesting Shareholders making such request later determine not to
sell their Registrable Shares in connection with the registration requested,
then the Requesting Shareholders shall give prompt notice to the Corporation and
the other Shareholders, as applicable, that the registration requested is no
longer required and the request is thereby withdrawn. Upon receipt of such
notice, the Corporation shall cease all efforts to secure registration and shall
take all action necessary and reasonably practicable to prevent the commencement
of effectiveness for any registration statement that it is preparing or has
prepared in connection with the withdrawn request.
SECTION 3. Piggyback Registration. (a) If the Corporation at any time
proposes to register any securities under the Securities Act that would permit
registration of Registrable Shares for sale to the public under the Securities
Act, or, mutatis mutandis, under the securities Laws then applicable in Canada
(whether for its own account or for the account of its shareholders), the
Corporation will, each such time, give prompt written notice to all holders of
Registrable Shares of its intention to do so, describing such securities and
specifying the form and manner and the other relevant facts involved in such
proposed registration (including, without limitation, whether or not such
registration will be in connection with an underwritten offering of Common
Shares and, if so, the identity of the managing underwriter and whether such
offering will be pursuant to a "best efforts" or "firm commitment"
underwriting). Upon the written request of any holder of Registrable Shares (in
such capacity, a "Requesting Shareholder") to include Registrable Shares in such
registration (which request (i) must be delivered to the Corporation within 30
days after delivery by the Corporation of any notice pursuant to this Section
3(a), (ii) shall specify the number of Registrable Shares proposed to be
included in such registration and (iii) shall state the intended method of
disposition of such Registrable Shares), the Corporation shall use its
reasonable best efforts to cause all such Registrable Shares to be included in
such registration on the same terms and conditions as the securities otherwise
being sold in such registration; provided, however, that:
(i) if, at any time after giving such written notice of its intention
to register any of such securities proposed to be registered by the
Corporation and prior to the effective date of the registration statement
filed in connection with such registration and/or the issuance of a receipt
for a final prospectus under Canadian securities Laws, the Corporation
shall determine for any reason not to register such securities, the
Corporation may, at its election, give written notice of such determination
to each holder of Registrable Shares that has requested to register
Registrable Shares and, thereupon, the Corporation shall be relieved of its
obligation to register any Registrable Shares in connection with such
registration (but not of its obligation to pay the Registration Expenses in
connection therewith to the extent provided in Section 6 below); and
(ii) if (A) the registration so proposed by the Corporation involves
an underwritten offering of the securities to be so registered, to be
distributed by or through one or more underwriters of nationally recognized
standing under underwriting terms appropriate for such a transaction, and
(B) the managing underwriter of such underwritten offering shall advise the
Corporation in writing that, in its judgment, the number of Registrable
Shares and any other securities proposed to be included in such offering by
the Corporation should be limited (1) due to market conditions or (2)
because inclusion of all Registrable Shares proposed to be included in such
registration is reasonably likely to have a significant adverse effect on
the successful marketing (including pricing) of the Primary Shares proposed
to be registered by the Corporation, then the Corporation will promptly
advise each such Holder of Registrable Shares thereof and may require, by
written notice to each such Holder accompanying such advice, that, to the
extent necessary to meet such limitation, the number of Primary Shares and
Registrable Shares proposed to be included in such registration shall be
reduced to such number as shall, in the managing underwriter's opinion, not
be likely to have such an effect, which shall be included in such
registration in the following order:
(x) first, the Primary Shares; and
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(y) second, the Registrable Shares requested to be included in
such registration (or, if necessary, such Registrable Shares pro rata
among the holders thereof based upon the number of Registrable Shares
requested to be registered by each such holder).
(b) The Corporation shall not be obligated to effect any registration of
Registrable Shares under this Section 3 that is incidental to the registration
of any of its securities in connection with any merger, acquisition, exchange
offer, transaction of the type specified in Rule 145(a), dividend reinvestment
plan or stock option, restricted stock or other employee benefit plan.
(c) The Corporation shall not be obligated to effect any registration of
Registrable Shares under this Section 3 after the Corporation has effected three
(3) registrations of Registrable Shares pursuant to this Section 3; provided,
however, that any registration under Section 3 shall be deemed not to have been
effected if (i) a registration of Registrable Shares is not declared or ordered
effective by the applicable governmental authorities or agencies, including
without limitation, the Commission, and remain effective for not less than 30
days (or such shorter period as will terminate when all Registrable Shares
covered by such registration have been sold or withdrawn), or, if such
registration of Registrable Shares relates to an underwritten offering, such
longer period, if any, as in the opinion of counsel for the underwriters a
prospectus is required by law to be delivered in connection with sales of the
Registrable Shares by an underwriter or dealer (in either case, such period
being the "Demand Period"), (ii) (x) during the Demand Period such registration
is terminated by any stop order, injunction or other order or requirement of any
governmental agency or court or (y) the conditions to closing specified in the
underwriting agreement, if any, entered into in connection with such
registration are not satisfied other than by reason of a wrongful act,
misrepresentation or breach of an applicable underwriting agreement by the
selling Holders of Registrable Shares, (iii) the Requesting Shareholders
withdraw their request for registration of Registrable Shares and bear the
Registration Expenses, all in accordance with Section 6 below, or (iv) more than
90% of the aggregate number of all Registrable Shares requested to be included
in such registration are excluded from the offering pursuant to Section
3(a)(ii).
SECTION 4. Shelf Registration. The Corporation shall, at the request of a
Shareholder owning at least 35% of the Registrable Securities, use its best
efforts to qualify for registration on Form S-3 or any comparable or successor
form or forms or the Canadian shelf prospectus system. If the Corporation has
qualified for the use of Form S-3 or the Canadian shelf prospectus system, the
Corporation shall, promptly after the request of a Shareholder use its best
efforts to file with the Commission or the securities regulators of all the
Canadian provinces, as the case may be, and make and keep effective until all
Registrable Shares have been sold by the Shareholder a shelf registration
statement pursuant to Rule 415 or the shelf registration provisions of National
Instrument 44-102, as the case may be, with respect to all of the Registrable
Shares. Unless otherwise requested in writing by the Shareholder, the
Corporation shall include the Registrable Shares in the first registration
statement on Form S-3 or shelf prospectus filed by the Corporation following the
date hereof. The Corporation shall not be obligated to qualify, or to take any
action to qualify, for registration pursuant to this Section 4 if the offering
size would be for a value of less than U.S.$3,000,000.
SECTION 5. Rights to Purchase New Securities. (a) In the event that the
Corporation proposes to issue New Securities (other than in connection with the
Offering), each Shareholder shall have the right to purchase in lieu of the
Person to whom the Corporation proposed to issue such New Securities, in
accordance with paragraph 5(b) below, a number of Common Shares or other New
Securities which the Corporation proposes to issue equal to the product of (i)
the total number or amount of Common Shares or other New Securities which the
Corporation proposes to issue at such time and (ii) a fraction, the numerator of
which shall be the total number of Voting Interests which such Shareholder holds
or beneficially owns at such time, and the denominator of which shall be the
total number of Voting Interests then outstanding. The rights given by the
Corporation under this Section 5 shall terminate if unexercised within 30 days
after receipt of the Notice of Issuance referred to in paragraph 5(b) below.
(b) In the event that the Corporation proposes to undertake an issuance of
New Securities (other than in connection with the Offering), it shall give
written notice (a "Notice of Issuance") of its intention to each Shareholder,
describing all material terms of the New Securities, the price and all material
terms upon which
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the Corporation proposes to issue such New Securities. Each Shareholder shall
have 30 days from the date of the Notice of Issuance to agree to purchase all or
any portion of its pro rata share of such New Securities (as determined pursuant
to paragraph 5(a) above) for the same consideration, if such consideration shall
consist solely of cash, or for cash, cash equivalents or marketable securities
having an equivalent value to the consideration payable by the Person to whom
the Corporation proposes to issue such New Securities at the time of payment,
and otherwise upon the terms specified in the Notice of Issuance by giving
written notice to the Corporation, and stating therein the quantity of New
Securities to be purchased by such Shareholder.
SECTION 6. Expenses. Except as provided for in Section 2(a)(ii)(C) and
Section 3(c), all Registration Expenses incurred in connection with any
registration, qualification or compliance pursuant to this Agreement shall be
borne by the Corporation, and all Selling Expenses shall be borne by the Holders
of the securities so registered pro rata on the basis of the number of their
shares so registered.
SECTION 7. Holdback Agreement. (a) If the Corporation at any time shall
register Common Shares under the Securities Act pursuant to Section 2 or 3
hereof for sale to the public, any Shareholders that participate in such
registration shall not sell publicly, or otherwise dispose publicly of, any
Registrable Shares (other than those Common Shares included in such registration
pursuant to Section 2 or 3 hereof) without the prior written consent of the
Corporation, for a period as shall be determined by the relevant managing
underwriters. The Corporation shall obtain the agreement of any Person permitted
to sell shares of stock in such registration to be bound by and to comply with
this Section 7 as if such Person were a Shareholder hereunder.
(b) If the Corporation shall at any time pursuant to Section 2 or 3 of
this Agreement register under the Securities Act Registrable Shares for sale to
the public pursuant to an underwritten offering, the Corporation shall not
effect any public sale or distribution of securities similar to those being
registered (excluding any transaction of the type identified or contemplated in
Section 3(b) above), or any securities convertible into or exercisable or
exchangeable for such securities, for such period as shall be determined by the
managing underwriters.
SECTION 8. Preparation and Filing. (a) If and whenever the Corporation is
under an obligation pursuant to the provisions of this Agreement to use its
reasonable best efforts to effect the registration of any Registrable Shares,
the Corporation shall, with respect to such registration (which, for the
avoidance of doubt, shall be a registration in the jurisdiction requested by the
Requesting Shareholder pursuant to Section 2(a) in the case of a registration
under Section 2 hereof), as expeditiously as is reasonable:
(i) prepare and file a registration statement, in the case of a
registration request pursuant to Section 2 within 90 days of such request,
under the Securities Act or similar such document under applicable Canadian
securities Laws that registers such Registrable Shares to become and remain
effective for a period of 30 days or, if earlier, until all of such
Registrable Shares have been disposed of; provided, however, that (i) such
30 day period shall be extended for a period of time equal to the period
the Holder refrains from selling any securities included in such
registration at the request of an underwriter of Common Shares (or other
securities) of the Corporation; and (ii) in the case of any registration of
Registrable Shares on Form S-3 or the Canadian shelf prospectus system,
such 30 day period shall be extended, if necessary, to keep the
registration statement effective until the earlier of the date that all
such Registrable Shares are sold or the five year anniversary of the date
of filing, provided that Rule 415 or any successor rule under the
Securities Act or any corresponding rule or regulation under Canadian
securities Laws permits an offering on a continuous or delayed basis, and
provided further that applicable rules under the Securities Act or other
applicable securities laws governing the obligation to file a post
effective amendment permit, in lieu of filing a post-effective amendment
that (I) includes any prospectus required by Section 10(a)(3) of the
Securities Act or (II) reflects facts or events representing a material or
fundamental change in the information set forth in the registration
statement, the incorporation by reference of information required to be
included as described in (I) and (II) above to be contained in periodic
reports filed pursuant to Section 13 or 15(d) of the Exchange Act or
corresponding continuous disclosure requirements under Canadian securities
Laws in the registration statement;
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(ii) prepare and file with the Commission or with the applicable
Canadian securities regulatory authorities, as the case may be, such
amendments (including post-effective amendments) and supplements to such
registration statement or similar such document under applicable Canadian
securities Laws and the prospectus relating thereto as may be necessary,
or, in the opinion of the managing underwriter, advisable to keep such
registration statement or similar such document effective for at least a
period of 30 days or, if earlier, until all of such Registrable Shares have
been disposed of, and to comply with the provisions of the Securities Act
or applicable Canadian securities Laws with respect to the sale or other
disposition of such Registrable Shares;
(iii) use its reasonable best efforts to register or qualify such
Registrable Shares under such other securities or "blue sky" Laws of such
jurisdictions as the holders of the Registrable Shares reasonably request
and do any and all other acts and things which may be reasonably necessary
or advisable to enable such holders to consummate the disposition in such
jurisdictions of such holders' Registrable Shares; provided, however, that
the Corporation will not be required (A) to qualify generally to do
business, subject itself to general taxation or consent to general service
of process in any jurisdiction where it would not otherwise be required to
do so but for this paragraph (iii) or (B) to provide any material
undertaking or make any changes in its bylaws or certificate of
incorporation which the board of directors of the Corporation determines to
be contrary to the best interests of the Corporation;
(iv) notify the holders of such Registrable Shares on a timely basis
of the happening of any event as a result of which a prospectus relating to
such Registrable Shares, as then in effect, includes an untrue statement of
a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light
of the circumstances then existing and, at the request of such holders,
prepare and furnish without charge to such holders a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be
necessary to cause such prospectus, as so supplemented or amended, not to
include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
(v) furnish without charge to each seller of such Registrable Shares
and other securities such number of conformed copies of such registration
statement under the Securities Act, or similar such document under
applicable Canadian securities Laws and of each such amendment and
supplement thereto (in each case including all exhibits), such number of
copies of the prospectus included in such registration statement or similar
such document (including each preliminary prospectus), in conformity with
the requirements of the Securities Act or applicable Canadian securities
Laws, as the case may be, such documents incorporated by reference in such
registration statement or prospectus, and such other documents, as such
seller may reasonably request in order to facilitate the sale or
disposition of such Registrable Shares or other securities;
(vi) furnish to each seller of Registrable Shares a signed
counterpart, addressed to such seller, of (A) an opinion of counsel
reasonably acceptable to a majority of selling Holders for the Corporation
in customary form, scope and substance, dated the effective date of such
registration statement or similar such document (or, if such registration
includes an underwritten public offering, dated the date of the closing
under the underwriting agreement), received by the Corporation in
connection with such registration statement, and (B) "comfort" letters
signed by the independent public accountants in customary form, scope and
substance who have issued a report on the Corporation's financial
statements included in such registration statement or similar such document
received by the Corporation in connection with such registration statement
or similar such document;
(vii) immediately notify each seller of Registrable Shares and other
securities covered by such registration statement at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act or applicable Canadian securities Laws, of the happening of
any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing or if it is necessary to
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amend or supplement such prospectus to comply with Law, and at the request
of any such seller prepare and furnish without change to such seller a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Shares or other 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 necessary to make the
statements therein not misleading in the light of the circumstances then
existing and shall otherwise comply in all material respects with Law and
so that such prospectus, as amended or supplemented, will comply with Law;
(viii) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, or the applicable rules and
regulations of any securities regulatory authorities in Canada, and make
available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least 12 months, beginning
with the first month of the first fiscal quarter after the effective date
of such registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act;
(ix) use its best efforts to list such Registrable Shares on each
securities exchange on which the Common Shares are then listed, if such
Registrable Shares are not already so listed and if such listing is then
permitted under the rules of such exchange, and provide a transfer agent
and registrar and a CUSIP number for such Registrable Shares not later than
the effective date of such registration statement under the Securities Act,
or similar such document under applicable Canadian securities Laws;
(x) deliver to any underwriter to which any Holder of Registrable
Shares may sell such Registrable Shares in connection with any such
registration (and to any direct or indirect transferee of any such
underwriter) certificates evidencing such shares without bearing any
restrictive legend;
(xi) make every reasonable effort to prevent or obtain the withdrawal
of any stop order or other order suspending the use of any preliminary or
final prospectus or suspending any qualification of the Registrable Shares
at the earliest possible moment;
(xii) make such representations and warranties to the holders of
Registrable Shares being registered, and the underwriters or agents, if
any, in form, substance and scope as are customarily made by issuers in
secondary underwritten public offerings; and
(xiii) enter into such customary agreements (including underwriting
and indemnification agreements) and take all such other actions as the
holders of at least a majority of any Registrable Shares being sold or the
managing underwriter or agent, if any, reasonably request in order to
expedite or facilitate the registration and disposition of such Registrable
Shares.
The Corporation may require each seller of Registrable Shares as to which any
registration is being effected to furnish the Corporation with such information
regarding such seller and the distribution of such securities as the Corporation
may from time to time reasonably request and as shall be required by Law or by
the Commission or applicable Canadian securities regulatory authorities, as the
case may be, in connection therewith.
(b) Each holder of the Registrable Shares, upon receipt of any notice from
the Corporation of any event of the kind described in Section 8(a)(iv) hereof,
shall forthwith discontinue disposition of the Registrable Shares pursuant to
the registration statement under the Securities Act, or similar such document
under applicable Canadian securities Laws covering such Registrable Shares until
such holder's receipt of the copies of the supplemented or amended prospectus
contemplated by Section 8(a)(iv) hereof, and, if so directed by the Corporation,
such holder shall deliver to the Corporation all copies, other than permanent
file copies then in such holder's possession, of the prospectus covering such
Registrable Shares at the time of receipt of such notice.
(c) In connection with the preparation and filing of each registration
statement registering Registrable Shares under the Securities Act, or similar
such document under applicable Canadian securities Laws, the Corporation will
give the Shareholders on whose behalf such Registrable Shares are to be so
registered their
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respective counsel and accountants and any underwriters, the opportunity to
review and comment on such registration statement or prospectus, included
therein or filed with the Commission or with any Canadian securities regulatory
authority, and each amendment thereof or supplement thereto, and will give each
of them such access to its books and records and such opportunities to discuss
the business of the Corporation with its officers and the independent public
accountants who have issued a report on its financial statements as shall be
reasonably necessary, in the opinion of such Shareholders and such underwriters
or their respective counsel, to conduct a reasonable investigation within the
meaning of the Securities Act or applicable Canadian securities Laws, as the
case may be.
(d) In connection with the sale of Registrable Shares registered pursuant
to Section 2 above, if requested in writing by the Shareholders and as
reasonably required or necessary to complete the sale, members of the
Corporation's management shall participate in customary "road shows" and
question and answer meetings with potential purchasers of such Registrable
Shares in connection with offers and sales of such Registrable Shares.
(e) It is understood that in any underwritten offering of Registrable
Shares in addition to the Common Shares (the "initial shares") the underwriters
have committed to purchase, the underwriting agreement may grant the
underwriters an option to purchase a number of additional Common Shares (the
"option shares") equal to up to 15% of the initial shares (or such other maximum
amount as the National Association of Securities Dealers, Inc. may then permit),
solely to cover over-allotments. The Common Shares proposed to be sold by the
Corporation and the Holders shall be allocated between initial shares and option
shares as agreed or, in the absence of agreement, pursuant to Section 3(a)(ii).
The number of initial shares and option shares to be sold by selling Holders
shall be allocated pro rata among all such Holders on the basis of the relative
number of Common Shares and other securities each such Holder has requested to
be included in such registration.
SECTION 9. Indemnification; Contribution. (a) In the event of any
registration of any equity securities of the Corporation under the Securities
Act or applicable Canadian securities Laws, the Corporation will, and hereby
does agree to, indemnify and hold harmless, in the case of any registration
statement or prospectus filed pursuant to Section 2, 3 or 4 hereof, the seller
of any Registrable Shares covered by such registration statement or prospectus,
its respective directors and officers, partners and members, each other Person
who participates as an underwriter in the offering or sale of such securities,
and each other Person, if any, who controls such seller or any such underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, against any losses, claims, damages, liabilities and expenses, to
which they or any of them may become subject under the Securities Act,
applicable Canadian securities Laws or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions or proceedings in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in any registration statement or
prospectus under which such securities were registered under the Securities Act,
any preliminary prospectus, final prospectus included therein or filed with
applicable Canadian securities regulatory authorities, or any amendment or
supplement thereto, or any document incorporated by reference therein, or (ii)
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that the Corporation shall not be liable in any such case to
the extent that any such loss, claim, damage, liability (or action or proceeding
in respect thereof) or expense arises out of or is based upon (x) an untrue
statement or alleged untrue statement or omission or alleged omission made in
such registration statement, any such preliminary prospectus, final prospectus
or amendment or supplement thereto, in reliance upon and in conformity with
written information furnished to the Corporation for use in the preparation
thereof by such seller or underwriter, as the case may be, or (y) an untrue
statement or alleged untrue statement or omission or alleged omission made in
any preliminary prospectus but notified to such seller and underwriter prior to
any sale or other disposition of Registrable Shares and subsequently corrected
by the Corporation in any final prospectus, amendment or supplement made
available to such seller or underwriter but which final prospectus, amendment or
supplement was not used by such seller or underwriter in the sale or other
disposition of Registrable Shares that gave rise to such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense. This
indemnity shall be in addition to any liability the Corporation may otherwise
have.
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Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such seller or any such director or
officer, underwriter or controlling Person and shall survive the transfer of
such securities by such seller.
(b) The Corporation may require, as a condition to including any
Registrable Shares in any registration statement or prospectus filed pursuant to
Section 2, 3 or 4 hereof, that the Corporation shall have received an agreement
satisfactory to it from (i) the prospective seller of such securities, to
indemnify and hold harmless (in the same manner and to the same extent as set
forth in Section 9(a), except that any such prospective seller shall not in any
event be liable to the Corporation pursuant thereto for an amount in excess of
the net proceeds of the sale of such prospective seller's Registrable Shares so
to be sold) the Corporation, each director of the Corporation and each of the
Corporation's officers who signed the registration statement or prospectus, each
such underwriter of such securities, and each other Person, if any, who controls
the Corporation or any such underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, and (ii) each such underwriter
of such securities, to indemnify and hold harmless (in the same manner and to
the same extent as set forth in Section 9(a) above) the Corporation, each
officer who signed the registration statement or prospectus and each director of
the Corporation, each prospective seller, and each other Person, if any, who
controls the Corporation or any such prospective seller within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, with respect
to any untrue statement in or omission from such registration statement, any
preliminary prospectus, final prospectus, or any amendment or supplement
thereto, if such untrue statement or omission was made in reliance upon and in
conformity with written information furnished by such prospective seller or such
underwriter, as the case may be, to the Corporation for use in the preparation
of such registration statement, preliminary prospectus, final prospectus,
amendment or supplement. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Corporation or any
such director, officer or controlling Person and shall survive the transfer of
such securities by such seller.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action or proceeding (including any governmental
investigation) involving a claim referred to in either Section 9(a) above or (b)
above, such indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the latter of the
commencement of such action; provided, however, that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding provisions of this
Section 9, except to the extent that the indemnifying party is materially
prejudiced by such failure to give notice. In case any such action is brought
against an indemnified party, the indemnifying party shall be entitled to assume
the defense thereof, jointly with any other indemnifying party similarly
notified, to the extent that it may wish, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party for
any legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof. If, in the indemnified party's reasonable
judgment, a conflict of interest between such indemnified party and indemnifying
parties may exist in respect of such claim, the indemnified party shall be
entitled to participate in the defense thereof and the indemnifying party shall
not be liable for the fees and expenses of more than one counsel for all sellers
of Registrable Shares, or more than one counsel for the underwriters in
connection with any one action or separate but similar or related actions.
(d) If the indemnification provided for in the foregoing clauses (a), (b)
and (c) of this Section 9 is unavailable to the indemnified parties in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party shall contribute to the amounts paid or payable by such
indemnified parties as a result of such losses, claims, damages or liabilities
(i) as between the Corporation and the holders of Registrable Shares covered by
a registration statement, on the one hand, and the underwriters, on the other,
in such proportion as is appropriate to reflect the relative benefits received
by the Corporation and such holders, on the one hand, and the underwriters, on
the other, from the offering of the Registrable Shares, or if such allocation is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits but also the relative fault of the Corporation
and such holders, on the one hand, and of the underwriters, on the other, in
connection with the statements or omissions that resulted in such losses,
claims,
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damages or liabilities, as well as any other relevant equitable considerations,
and (ii) as between the Corporation, on the one hand, and each holder of
Registrable Shares covered by a registration statement or prospectus, on the
other, in such proportion as is appropriate to reflect the relative fault of the
Corporation and of each such holder in connection with such statements or
omissions, as well as any other relevant equitable considerations. The relative
benefits received by the Corporation and such holders, on the one hand, and the
underwriters, on the other, shall be deemed to be in the same proportion as the
total proceeds from the offering (net of underwriting discounts and commissions
but before deducting expenses) received by the Corporation and such holders bear
to the total underwriting discounts and commissions received by the
underwriters. The relative fault of the Corporation and such holders, on the one
hand, and of the underwriters, on the other, 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 Corporation and such holders or by the
underwriters. The relative fault of the Corporation, on the one hand, and of
each such holder, on the other, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact
relates to information supplied by such party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) The Corporation and the holders of Registrable Shares agree that it
would not be just and equitable if contribution pursuant to Section 9(d) were
determined by pro rata allocation (even if the underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the next preceding
paragraph. Notwithstanding the provisions of Section 9(d), no holder of
Registrable Shares shall be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Shares of such holder
were offered to the public exceeds the amount of any damages that such holder
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. 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. The obligation of the holders of Registrable
Shares to contribute pursuant to this Section 9 is several in the proportion
that the proceeds of the offering received by such holder bears to the total
proceeds of the offering received by all Holders and not joint.
SECTION 10. Information by Holders of Registrable Shares. Each holder of
Registrable Shares shall furnish to the Corporation such written information
regarding such Person and the distribution proposed by such Person as the
Corporation may reasonably request and as shall be reasonably required in
connection with any registration, qualification or compliance referred to in
this Agreement.
SECTION 11. Exchange Act Compliance. The Corporation shall comply with
all of the reporting requirements of the Exchange Act applicable to it and shall
comply with all other public information reporting requirements of the
Commission which are conditions to the availability of Rule 144 for the sale of
the Common Shares. The Corporation shall cooperate with each holder of
Registrable Shares in supplying such information as may be necessary for such
holder to complete and file any information reporting forms presently or
hereafter required by the Commission as a condition to the availability of Rule
144.
SECTION 12. Termination. This Agreement shall terminate upon the earlier
of (a) the date on which there are no longer any Registrable Shares outstanding
(b) the date on which all Common Shares owned by the Shareholders can be sold
without restriction in accordance with Rule 144 and under applicable Canadian
securities Laws, rules and regulations, and (c) [ ], 2011. The rights
and obligations hereunder of the Shareholders shall terminate at such time when
neither they nor any of their respective Specified Assignees hold Registrable
Shares, provided that the provisions of Section 9 hereof, the rights of any
party hereto with respect to the breach of any provision hereof, and any
obligation accrued as of the date of termination shall survive the termination
of this Agreement.
SECTION 13. Successors and Assigns. This Agreement shall bind and inure
to the benefit of the Corporation and the Shareholders and, subject to Section
14 below, their respective successors and assigns.
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SECTION 14. Assignment. (a) If a Shareholder transfers Common Shares to a
Subsidiary or an Affiliate of the Shareholder as provided herein, the
Shareholder may transfer or assign to such Subsidiary or Affiliate its rights
under the Agreement; provided, however, that the Corporation is given written
notice at the time of or within a reasonable time after such transfer or
assignment, stating the name and address of the transferee or assignee and
identifying the securities with respect to which such rights are being
transferred or assigned, and, provided further, that the transferee or assignee
of such rights assumes all of the obligations of the Shareholder under this
Agreement and no such assignment or transfer shall operate to release the
Shareholder from any of its obligations or liabilities hereunder.
(b) If, at any time, the Shareholder sells or otherwise transfers any
Common Shares to a Person that is not an Affiliate of the Shareholder then, in
connection therewith, the Shareholder may only transfer or assign its rights
hereunder with the written prior consent of the Corporation.
SECTION 15. Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written and oral, between
the parties with respect to the subject matter hereof.
SECTION 16. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by delivery in
person, by courier service, by facsimile, or by registered or certified mail
(postage prepaid, return receipt requested) to the parties at the addresses
specified in Exhibit I hereof (or at such other address for a party as shall be
specified in a notice given in accordance with this Section 16).
SECTION 17. Modifications; Amendments; Waivers. This Agreement may not be
amended or modified, except by an instrument in writing signed by, or on behalf
of, the Corporation and Shareholders representing 75% of the Registrable Shares.
SECTION 18. Counterparts; Facsimile Signatures. This Agreement may be
executed and delivered in one or more counterparts (including by telecopy), and
by the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
SECTION 19. Headings. The descriptive headings contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
SECTION 20. Severability; Governing Law. If any term or other provision
of this Agreement is invalid, illegal or incapable of being enforced by any Law,
governmental regulation or public policy, all other terms and provisions of this
Agreement shall nevertheless remain in full force and effect as long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby are consummated as originally contemplated to the greatest extent
possible. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York applicable to contracts executed in and to be
performed in that State.
SECTION 21. Waiver of Jury Trial. Each of the parties hereto irrevocably
and unconditionally waives trial by jury in any legal action or proceeding
relating to this Agreement, the transactions contemplated hereby and for any
counterclaim therein.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first written above.
ODYSSEY RE HOLDINGS CORP.
By
--------------------------------------
Name:
Title:
ORH HOLDINGS INC.
By
--------------------------------------
Name:
Title:
TIG INSURANCE COMPANY
By
--------------------------------------
Name:
Title:
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EXHIBIT 1
NOTICE
If to ORH: ORH Holdings Inc.
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Fax Number: (000) 000-0000
If to TIG: TIG Insurance Company
0000 Xxxxx X'Xxxxxx Xxxx.
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxx
Fax Number: (000) 000-0000
If the Corporation Odyssey Re Holdings Corp.
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Fax Number: (000) 000-0000
