EXHIBIT 10.17
OMNIBUS REGISTRATION RIGHTS AGREEMENT
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This OMNIBUS REGISTRATION RIGHTS AGREEMENT dated November __, 1998, is
made and entered into by and among Scottish Annuity & Life Holdings, Ltd., a
Cayman Islands company (the "Company"), and each of the Persons listed on
Schedule A hereto (each, an "Initial Holder" and collectively, the "Initial
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Holders").
WHEREAS, pursuant to the terms of the agreements set forth opposite
each Initial Holder's name on Schedule A (each, a "Securities Purchase
Agreement"), the Company has issued or will issue certain Ordinary Shares, par
value $.01 per share, of the Company ("Ordinary Shares"), certain Class A
Warrants to purchase Ordinary Shares ("Class A Warrants") and certain Class B
Warrants to purchase Ordinary Shares ("Class B Warrants") to the Initial
Holders; and
WHEREAS, pursuant to the Securities Purchase Agreements, the Company
has agreed to register the Ordinary Shares held by the Initial Holders, the
Ordinary Shares issued or to be issued to the Initial Holders pursuant to the
Securities Purchase Agreements, and the Ordinary Shares for which the Class A
Warrants or Class B Warrants are exercisable for sale under the Securities Act
of 1933, as amended, pursuant to the terms of a Registration Rights Agreement
with each Initial Holder (collectively, the "Registration Rights Agreements");
WHEREAS, the Company and the Initial Holders desire to amend and
restate each Registration Rights Agreement by replacing each such Registration
Rights Agreement with this Agreement;
NOW, THEREFORE, in consideration of the promises and of the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows, intending to be legally bound.
Section 1. General.
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(a) Each Registration Rights Agreement is hereby amended and restated
and replaced in its entirety by this Agreement.
(b) The Company shall not grant any registration rights to any
subsequent purchaser of the Company's securities that are more favorable than
the terms hereof. Any subsequent purchaser from the Company of the Company's
securities ("Subsequent Purchaser") whom the Company desires to grant
registration rights shall become an Initial Holder upon execution of a
counterpart of this Agreement by such Subsequent Purchaser and the Ordinary
Shares or other securities purchased by such Subsequent Purchaser and the
Ordinary Shares or other securities issuable upon exercise of any convertible,
exchangeable or exercisable securities purchased by such Subsequent Purchaser in
such transaction shall thereupon become Registrable Securities (as defined
herein).
Section 2. Definitions. As used in this Agreement, the following terms
have the following meanings:
"Business Day" means any day on which the Company's Ordinary Shares
are available for trading on the principal stock exchange or market upon which
they are traded.
"Exchange Act" means the Securities Exchange Act of 1934, and the
rules and regulations of the SEC thereunder, all as the same shall be in effect
at the relevant time.
"Holders" means the Initial Holders and the permitted successors or
assignees of the Initial Holders, for so long as (and to the extent that) such
Persons own or have the right to acquire any Registrable Securities.
"IPO Date" means the date of the consummation of the Company's initial
public offering of its Ordinary Shares.
"Ordinary Shares" means the Company's Ordinary Shares, par value $.01
per share.
"Person" means an individual, a partnership (general or limited),
corporation, limited liability company, joint venture, business trust,
cooperative, association or other form of business organization, whether or not
regarded as a legal entity under applicable law, a trust (inter vivos or
testamentary), an estate of a deceased, insane or incompetent person, a quasi-
governmental entity, a government or any agency, authority, political
subdivision or other instrumentality thereof, or any other entity.
"Registrable Securities" means (1) the Ordinary Shares held by the
Initial Holders and permitted transferees of such Ordinary Shares on the date
first above written as set forth on Schedule B hereto; (2) the Ordinary Shares
issued pursuant to the terms of the Securities Purchase Agreements; (3) the
Ordinary Shares issuable upon exercise of Class A Warrants or Class B Warrants
issued pursuant to the terms of the Securities Purchase Agreements; and (4) any
additional Ordinary Shares or other equity securities of the Company issued or
issuable in respect of such Ordinary Shares (or other equity securities issued
in respect thereof) by way of a stock dividend or stock split, in connection
with a combination, exchange, reorganization, recapitalization or
reclassification of Company securities, or pursuant to a merger, division,
consolidation or other similar business transaction or combination involving the
Company; provided that as to any particular Registrable Securities, such
securities shall cease to constitute Registrable Securities (a) 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 thereunder, (b) when such securities shall have been disposed of
pursuant to Rule 144 (or any successor provision to such Rule) under the
Securities Act, or (c) when such securities shall have ceased to be outstanding.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with the registration requirements set forth in
this Agreement including, without limitation, the following: (a) the fees,
disbursements and expenses of the Company's counsel, accountants, and experts in
connection with the registration under the
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Securities Act of Registrable Securities; (b) all expenses in connection with
the preparation, printing and filing of the registration statement, any
preliminary prospectus or final prospectus, any other offering document and
amendments and supplements thereto, and the mailing and delivering of copies
thereof to underwriters and dealers, if any; (c) the cost of printing or
producing any agreement(s) among underwriters, underwriting agreement(s) and
blue sky or legal investment memoranda, any selling agreements, and any other
documents in connection with the offering, sale or delivery of Registrable
Securities to be disposed of in an underwritten offering; (d) the fees and
expenses incurred in connection with the listing of Registrable Securities on
each securities exchange on which Company securities of the same class are then
listed or with the Nasdaq National Market System; (e) any SEC or blue sky
registration or filing fee attributable to Registrable Securities; (f) any other
expenses in connection with the Registrable Securities for offer and sale under
state securities laws, including the fees and disbursements of counsel for the
underwriters in connection with such qualification and in connection with any
blue sky and legal investment surveys; and (g) the filing fees incident to
securing any required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of Registrable Securities to be disposed of.
"Registration Statement" means a registration statement under the
Securities Act filed by the Company pursuant to this Agreement, including all
amendments thereto, all preliminary and final prospectuses included therein and
all exhibits thereto.
"SEC" means the United States Securities and Exchange Commission, or
such other federal agency at the time having the principal responsibility for
administering the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC thereunder, all as the same shall be in effect
at the relevant time.
Section 3. Underwritten Demand Registration.
(a) At any time on or after the first anniversary of the IPO Date, and
before (i) the tenth anniversary of the IPO Date with respect to all Holders
other than Holders of Class B Warrants ("Class B Holders") and (ii) the fifth
anniversary of the IPO Date with respect to the Class B Holders, the Holder or
Holders of not less than 250,000 Ordinary Shares which are, or would be upon
exercise of Class A Warrants or Class B Warrants or other convertible,
exchangeable or exercisable securities, Registrable Securities may (by written
notice delivered to the Company) require registration of all or any portion of
such Registrable Securities for sale in an underwritten public offering. In each
such case, such notice shall specify the number of Registrable Securities for
which such underwritten offering is to be made. Within ten Business Days after
its receipt of any such notice, the Company shall give written notice of such
request to all other Holders, and all such Holders shall have the right to have
any or all Registrable Securities owned by them included in the requested
underwritten offering as they shall specify in a written notice received by the
Company within ten Business Days after the Company's notice is given. Within ten
Business Days after the expiration of such ten Business Day period, the Company
shall notify all Holders requesting inclusion of Registrable Securities in the
proposed underwriting of (1) the aggregate number of Registrable Securities
proposed to be included by all Holders in the offering, and (2) the proposed
commencement date of the offering, which shall be a date not more
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than thirty days after the Company gives such notice. The managing underwriter
for such offering shall be chosen by the Holders of a majority of the
Registrable Securities being included therein and shall be satisfactory to the
Company.
(b) At any time on or after the date six months following the IPO Date
and before the first anniversary of the IPO Date, Maverick Fund U.S.A., Ltd.,
Maverick Fund II, Ltd. and Maverick Fund, L.D.C. (collectively, "Maverick") may
(by written notice delivered to the Company signed by all Maverick Holders)
require registration of all or any portion of the Registrable Securities held by
Maverick for sale in an underwritten public offering. The managing underwriter
for such offering shall be chosen by Maverick and shall be satisfactory to the
Company. Any such request and registration shall not count under subsection (d)
as one of the underwritten public offerings provided for in subsection (a).
(c) If any request for an underwriting shall have been made pursuant
to this Section 3, the Company shall prepare and file a Registration Statement
with the SEC as promptly as reasonably practicable, but in any event within 45
days after the managing underwriter's request therefor.
(d) Except as provided in Section 3(b) above, the Company shall not
have any obligation to permit or participate in more than (i) two underwritten
public offerings with respect to all Holders other than the Class B Holders and
(ii) one underwritten public offering with respect to the Class B Holders,
pursuant to this Section, or to file a Registration Statement pursuant to this
Section with respect to less than 250,000 Ordinary Shares which are Registrable
Securities.
(e) The Company shall have the right to defer the filing or
effectiveness of a Registration Statement relating to any registration requested
under this Section for a reasonable period of time not to exceed 180 days if (1)
the Company is, at such time, working on an underwritten public offering of its
securities for the account of the Company and is advised by its managing
underwriter that such offering would in its opinion be materially adversely
affected by such filing; or (2) the Company in good faith determines that any
such filing or the offering of any Registrable Securities would (A) materially
impede, delay or interfere with any proposed financing, offer or sale of
securities, acquisition, corporate reorganization or other significant
transaction involving the Company or (B) require the disclosure of material non-
public information, the disclosure of which would materially and adversely
affect the Company.
(f) The Company shall have no obligation to file a Registration
Statement pursuant to this Section earlier than 180 days after the effective
date of a prior registration statement of the Company covering an underwritten
public offering for the account of the Company if (1) the Company shall have
offered pursuant to Section 5 to include the Holders' Registrable Securities in
such Registration Statement; and (2) no Registrable Securities requested to be
included in such registration statement shall have been excluded therefrom
pursuant to Section 5(c).
(g) The Holders of a majority of Registrable Securities requested to
be included in any offering pursuant to this Section may elect by written notice
to the Company not to proceed with the offering, in which case the Company shall
not be obligated to proceed with
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such offering. If the Holders so elect, the Holders that shall have requested
Registrable Securities to be included in the offering shall pay all Registration
Expenses incurred by the Company in connection with such offering prior to
receipt of such notice.
(h) Neither the Company nor any other Person shall be entitled to
include any securities held by it in any underwritten offering pursuant to this
Section, unless all Registrable Securities for which inclusion has been
requested are also included.
(i) No registration of Registrable Securities under this Section shall
relieve the Company of its obligation to effect registrations of Registrable
Securities pursuant to Sections 4 and 5.
Section 4. Shelf Registrations.
(a) At any time on or after the first anniversary of the IPO Date, and
(i) before the tenth anniversary of the IPO Date with respect to all Holders
other than Class B Holders and (ii) the fifth anniversary of the IPO Date with
respect to the Class B Holders, the Holder or Holders of Ordinary Shares which
are, or would be upon exercise of Class A Warrants or Class B Warrants or other
convertible, exchangeable or exercisable securities, Registrable Securities may
(by written notice to the Company) require registration of all or any portion of
such Registrable Securities for sale in open market transactions or negotiated
block trades. Within ten Business Days after its receipt of such notice, the
Company shall give written notice of such request to all other Holders, and all
such Holders shall have the right to have any or all Registrable Securities
owned by them included in the requested registration as they shall specify in a
written notice received by the Company within ten Business Days after the
Company's notice is given. Within ten Business Days after the expiration of such
ten Business Day period, the Company shall notify all Holders requesting
inclusion of Registrable Securities in the requested registration of the
aggregate number of Registrable Securities proposed to be included by all
Holders in this registration.
(b) At any time on or after the date six months following the IPO Date
and before the first anniversary of the IPO Date, Maverick may (by written
notice delivered to the Company signed by all Maverick Holders) require
registration of all or any portion of the Registrable Securities held by
Maverick for sale in open market transactions or negotiated block trades.
(c) If any request for registration shall have been made pursuant to
this Section 4, the Company shall prepare and file a Registration Statement with
the SEC as promptly as reasonably practicable, and in any event, in the case of
such a request pursuant to Section 4(a), within 45 days after the expiration of
the ten Business Day period within which the Holders may request inclusion in
the registration and, in the case of such a request pursuant to Section 4(b),
within 45 days after the Company's receipt of Maverick's written notice
described in Section 4(b).
(d) The Company shall have no obligation to file a Registration
Statement pursuant to this Section earlier than 180 days after the effective
date of any earlier Registration Statement filed pursuant to this Agreement.
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(e) The Holders of a majority of Registrable Securities requested to
be included in any registration pursuant to this Section may elect by written
notice to the Company not to proceed with such registration, in which case the
Company will not be obligated to proceed therewith. If the Holders so elect, the
Holders that shall have requested Registrable Securities to be included in the
registration shall pay all Registration Expenses incurred by the Company in
connection with such offering prior to receipt of such notice.
(f) No registration of Registrable Securities under this Section shall
relieve the Company of its obligation to effect registrations of Registrable
Securities under Sections 3 and 5.
Section 5. Incidental Registration.
(a) From and after the first anniversary of the IPO Date, and (i)
before the tenth anniversary of the IPO Date with respect to all Holders other
than Class B Holders and (ii) the seventh anniversary of the IPO Date with
respect to the Class B Holders, if the Company proposes, other than pursuant to
Section 3 or 4 of this Agreement, to file a Registration Statement under the
Securities Act to register any of its Ordinary Shares for public sale under the
Securities Act (whether proposed to be offered for sale by the Company or by any
other Person), it will give prompt written notice (which notice shall specify
the intended method or methods of disposition) to the Holders of its intention
to do so, and upon the written request of any Holder delivered to the Company
within ten Business Days after any such notice (which request shall specify the
number of Registrable Securities intended to be disposed of by such Holder), the
Company will use commercially reasonable efforts to include in such Registration
Statement all Registrable Securities which the Company has been so requested to
register by the Holders.
(b) If at any time prior to the effective date of any Registration
Statement described in subsection (a), the Company shall determine for any
reason not to proceed with such registration, the Company may, at its election,
give written notice of such determination to the Holders requesting registration
and thereupon the Company shall be relieved of its obligation to register such
Registrable Securities in connection with such registration.
(c) The Company will not be required to effect any registration of
Registrable Securities pursuant to this Section in connection with an offering
of Ordinary Shares solely for the account of the Company if the Company shall
have been advised in writing (with a copy to the Holders requesting
registration) by a U.S. nationally recognized investment banking firm (which may
be the managing underwriter for the offering) selected by the Company that, in
such firm's opinion, registration of Registrable Securities and of any other
securities requested to be included in such registration by Persons having
rights to include securities therein at that time may interfere with an orderly
sale and distribution of the securities being sold by the Company in such
offering or adversely affect the price of such securities; but if an offering of
less than all of the Registrable Securities requested to be registered by the
Holders and other securities requested to be included in such registration by
such other Persons would not, in the opinion of such firm, adversely affect the
distribution or price of the securities to be sold by the Company in the
offering, the aggregate number of Registrable Securities requested to be
included in such offering by the Holders shall be reduced pro rata in accordance
with the proportion that the number of shares proposed to be included in such
registration by the Holders bears to the number of shares proposed to be
included in such registration by the Holders and all other such Persons.
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(d) The Company shall not be required to give notice of, or effect any
registration of Registrable Securities under this Section incidental to, the
registration of any of its securities in connection with mergers,
consolidations, acquisitions, exchange offers, subscription offers, dividend
reinvestment plans or stock options or other employee benefit or compensation
plans.
(e) No registration of Registrable Securities effected under this
Section shall relieve the Company of its obligations to effect registrations of
Registrable Securities pursuant to Sections 3 and 4.
Section 6. Holdbacks and Other Transfer Restrictions.
(a) No Holder shall, if requested by the managing underwriter in an
underwritten offering: (1) that includes such Holder's Registrable Securities,
effect any public sale or distribution of securities of the Company of the same
class as the securities included in such Registration Statement (or convertible
into or exercisable for such class), including a sale pursuant to Rule 144(k)
under the Securities Act or effect (except as part of such underwritten
registration) any public sale or distribution of securities of the Company of
the same class as the securities included in such Registration Statement (or
convertible into or exercisable for such class), including a sale pursuant to
Rule 144(k) under the Securities Act during the ten day period prior to, and
during the 180-day period beginning on the closing date of each underwritten
offering made pursuant to such registration statement, to the extent timely
notified in writing by the Company or the managing underwriter; and (2) in the
event of an offering for the account of the Company, to the extent Holder does
not elect (or is not permitted under Section 5(c)) to sell such securities in
connection with such offering, effect any public sale or distribution of
securities of the Company of the same class as the securities included in such
Registration Statement (or convertible into or exercisable for such class),
including a sale pursuant to Rule 144(k) under the Securities Act during the
period of distribution of the Company's securities in such offering and during
the period in which the underwriting syndicate, if any, participates in the
aftermarket. In any such case the Company shall require the managing underwriter
to notify the Company and the Company, in turn, shall notify all Holders of
Registrable Securities included in the offering promptly after such
participation ceases. If the Company or such managing underwriter so requests,
each Holder shall enter into an agreement reflecting such restrictions.
(b) No Holder shall, during any period in which any of its Registrable
Securities are included in any effective Registration Statement, (1) effect any
stabilization transactions or engage in any stabilization activity in connection
with the Ordinary Shares or other equity securities of the Company in
contravention of Regulation M under the Exchange Act; (2) permit any Affiliated
Purchaser (as that term is defined in Rule 100(b) of Regulation M under the
Exchange Act) to bid for or purchase for any account in which such Holder has a
beneficial interest, or attempt to induce any other person to purchase, any
Ordinary Shares or Registrable Securities in contravention of Regulation M under
the Exchange Act; or (3) offer or agree to pay, directly or indirectly, to
anyone any compensation for soliciting another to purchase, or for purchasing
(other than for such Holder's own account), any securities of the Company on a
national securities exchange in contravention of Regulation M under the Exchange
Act.
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(c) Each Holder shall, in the case of a registration including
Registrable Securities to be offered by it for sale through brokers
transactions, furnish each broker through whom such Holder offers Registrable
Securities such number of copies of the prospectus as the broker may require and
otherwise comply with the prospectus delivery requirements under the Securities
Act.
Section 7. Registration Procedures. If and whenever the Company is
required by the provisions of this Agreement to effect a registration of
Registrable Securities:
(a) The Company will use commercially reasonable efforts to prepare
and file with the SEC, within the time periods specified herein, a Registration
Statement on Form S-3 or its equivalent (or on such other registration form
available to the Company that permits the greatest extent of incorporation by
reference of materials filed by the Company, under the Exchange Act) and will
use commercially reasonable efforts to cause such registration statement to
become effective as promptly as practicable thereafter and to remain effective
under the Securities Act until (1) the earlier of such time as all securities
covered thereby have been disposed of pursuant to such Registration Statement or
180 days after such Registration Statement becomes effective, in the case of
registrations pursuant to Section 3, or (2) 90 days after such Registration
Statement becomes effective, in the case of registrations pursuant to Section 4,
in every case as any such period may be extended pursuant to subsection (h) or
Section 9.
(b) The Company will prepare and file with the SEC such amendments,
post-effective amendments and supplements to such Registration Statement and the
prospectus used in connection therewith as may be necessary to keep such
Registration Statement effective for such period of time required by subsection
(a), as such period may be extended pursuant to subsection (h) or Section 9.
(c) The Company will comply in all material respects with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during the period during which
any such Registration Statement is required to be effective.
(d) The Company will furnish to any Holder and any underwriter of
Registrable Securities (1) such number of copies (including manually executed
and conformed copies) of such Registration Statement and of each amendment
thereof and supplement thereto (including all annexes, appendices, schedules and
exhibits), (2) such number of copies of the prospectus used in connection with
such Registration Statement (including each preliminary prospectus, any summary
prospectus and the final prospectus and including prospectus supplements), and
(3) such number of copies of other documents, in each case as the Holder or such
underwriter may reasonably request.
(e) The Company will use commercially reasonable efforts to register
or qualify all Registrable Securities covered by such Registration Statement
under the securities or "blue sky" laws of states of the United States and any
other jurisdiction as any Holder or any underwriter shall reasonably request,
and do any and all other acts and things which may be reasonably requested by
such Holder or such underwriter to consummate the offering and
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disposition of Registrable Securities in such jurisdictions; but the Company
shall not be required to qualify generally to do business as a foreign
corporation or as a dealer in securities, subject itself to taxation, or consent
to general service of process in any jurisdiction wherein it is not then so
qualified or subject.
(f) The Company will use, as soon as practicable after the
effectiveness of the Registration Statement, commercially reasonable efforts to
cause the Registrable Securities covered by such Registration Statement to be
registered with, or approved by, such other United States and Cayman Islands
public, governmental or regulatory authorities, if any, as may be required in
connection with the disposition of such Registrable Securities.
(g) The Company will use commercially reasonable efforts to list the
Registrable Securities covered by such Registration Statement on any securities
exchange (or if applicable, the Nasdaq National Market System) on which any
securities of the Company are then listed, if the listing of such Registrable
Securities is then permitted under the applicable rules of such exchange (or if
applicable, the Nasdaq National Market System).
(h) The Company will notify each Holder as promptly as practicable
and, if requested by any Holder, confirm such notification in writing, (1) when
a prospectus or any prospectus supplement has been filed with the SEC, and when
a Registration Statement or any post-effective amendment thereto has been filed
with and declared effective by the SEC, (2) of the issuance by the SEC of any
stop order or the coming to its knowledge of the initiation of any proceedings
for that purpose, (3) of the receipt by the Company of any notification with
respect to the suspension of the qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (4) of the occurrence of any event which requires
the making of any changes to a Registration Statement or related prospectus so
that such documents will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading (and the Company shall promptly prepare and furnish to each
Holder a reasonable number of copies of a supplemented or amended prospectus
such 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 necessary
to make the statements therein, in light of the circumstances under which they
are made, not misleading), and (5) of the Company's determination that the
filing of a post-effective amendment to a Registration Statement is necessary or
appropriate. Upon the receipt of any notice from the Company of the occurrence
of any event of the kind described in clause (4), the Holders shall forthwith
discontinue any offer and disposition of Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until all Holders
shall have received copies of a supplemented or amended prospectus which is no
longer defective and, if so directed by the Company, shall deliver to the
Company all copies (other than permanent file copies) of the defective
prospectus covering such Registrable Securities which are then in the Holders'
possession. If the Company shall provide any notice of the type referred to in
the preceding sentence, the period during which the Registration Statement is
required by subsection (a) to be effective shall be extended by the number of
days from and including the date such notice is provided, to and including the
date when the Holders shall have received copies of the corrected prospectus.
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(i) The Company will enter into such agreements and take such other
appropriate actions as are customary and reasonably necessary to expedite or
facilitate the disposition of such Registrable Securities (including, without
limitation, making its management available to the extent reasonably requested
by the Holders to participate in marketing presentations to potential investors
in connection with any underwritten offering), and in that regard, will deliver
to the Holders such documents and certificates as may be reasonably requested by
the Holders of a majority of the Registrable Securities being sold or, as
applicable, the managing underwriters, to evidence the Company's compliance with
this Agreement, including, in the case of any underwritten offering, using
commercially reasonable efforts to cause its independent accountants to deliver
to the managing underwriters an accountants' comfort letter substantially
similar to that in scope delivered in an underwritten public offering and
covering audited and interim financial statements included in the registration
statement, or if such letter can not be obtained through the exercise of
commercially reasonable efforts, cause its independent accountants to deliver to
the managing underwriters a comfort letter based on negotiated procedures
providing comfort with respect to the Company's financial statements included or
incorporated by reference in the registration statement at the highest level
permitted to be given by such accountants under the then applicable standards of
the American Institute of Certified Public Accountants with respect to such
Registration Statement.
Section 8. Underwriting.
(a) If requested by the underwriters for any underwritten offering of
Registrable Securities pursuant to a registration under Section 3, the Company
will enter into and perform its obligations under an underwriting agreement with
the underwriters for such offering, such agreement to contain such
representations and warranties by the Company and such other terms and
provisions as are customarily contained in underwriting agreements with respect
to secondary distributions, including, without limitation, customary provisions
relating to indemnities and contribution and the provision of opinions of
counsel and accountants' comfort letters. If Registrable Securities are to be
distributed by such underwriters on behalf of any Holder, such Holder shall also
be a party to any such underwriting agreement.
(b) If any registration pursuant to Section 5 shall involve an
underwritten offering, the Company may require Registrable Securities requested
to be registered pursuant to Section 5 to be included in such underwriting on
the same terms and conditions as shall be applicable to the securities being
sold through underwriters under such registration. In such case, each Holder
requesting registration shall be a party to any such underwriting agreement.
Such agreement shall contain such representations and warranties by the Holders
requesting registration and such other terms and provisions as are customarily
contained in underwriting agreements with respect to secondary distributions,
including, without limitation, provisions relating to indemnities and
contribution (it being understood that each Holder shall not be required to make
any representation concerning the Company or its business or to indemnify or
contribute for any liabilities, losses or expenses related to any omission or
misstatements in any registration statement or prospectus except to the extent
based upon information provided in writing by the Holder expressly for use
therein).
(c) In any offering of Registrable Securities pursuant to a
registration hereunder, each Holder requesting registration shall also enter
into such additional or other
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agreements as may be customary in such transactions, which agreements may
contain, among other provisions, such representations and warranties as the
Company or the underwriters of such offering may reasonably request (including,
without limitation, those concerning such Holder, its Registrable Securities,
such Holder's intended plan of distribution and any other information supplied
by it to the Company for use in such registration statement), and customary
provisions relating to indemnities and contribution (it being understood that
each Holder shall not be required to make any representation concerning the
Company or its business or to indemnify or contribute for any liabilities,
losses or expenses related to any omission or misstatements in any registration
statement or prospectus except to the extent based upon information provided in
writing by the Holder expressly for use therein).
Section 9. Information Blackout.
(a) At any time when a Registration Statement is effective, upon
written notice from the Company to the Holders that the Company has determined
in good faith that sale of Registrable Securities pursuant to the Registration
Statement would require disclosure of non-public material information, the
disclosure of which would have a material adverse effect on the Company, all
Holders shall suspend sales of Registrable Securities pursuant to such
Registration Statement until the earlier of (1) 20 days after the Company
notifies the Holders of such good faith determination, and (2) such time as the
Company notifies the Holders that such material information has been disclosed
to the public or has ceased to be material or that sales pursuant to such
Registration Statement may otherwise be resumed (the number of days from such
suspension of sales by the Holders until the day when such sales may be resumed
hereunder is hereinafter called a "Sales Blackout Period").
(b) The time period set forth in Section 7(a)(1) or (2) shall be
extended for a number of days equal to the number of days in the Sales Blackout
Period.
(c) No Sales Blackout Period shall be commenced by the Company within
90 days after the end of a Sales Blackout Period.
Section 10. Rule 144. After the IPO Date, the Company shall take all
actions reasonably necessary to comply with the filing requirements described in
Rule 144(c)(1) under the Securities Act so as to enable the Holders to sell
Registrable Securities without registration under the Securities Act. Upon the
written request of any Holder, the Company will deliver to such Holder a written
statement as to whether it has complied with the filing requirements under such
Rule 144(c)(1).
Section 11. Preparation; Reasonable Investigation; Information. In
connection with the preparation and filing of each Registration Statement
registering Registrable Securities under the Securities Act, (a) the Company
will give the Holders and the underwriters, if any, and their respective counsel
and accountants, drafts of such registration statement for their review and
comment prior to filing and (during normal business hours and subject to such
reasonable limitations as the Company may impose to prevent disruption of its
business) such reasonable and customary access to its books and records and such
opportunities to discuss the business of the Company with its officers and the
independent public accountants who have certified its financial statements as
shall be necessary, in the reasonable opinion of the Holders of a majority of
the
11
Registrable Securities being registered and such underwriters or their
respective counsel, to conduct a reasonable investigation within the meaning of
the Securities Act and (b) as a condition precedent to including any Registrable
Securities of any Holder in any such registration, the Company may require such
Holder to furnish the Company such information regarding such Holder and the
distribution of such securities as the Company may from time to time reasonably
request in writing or as shall be required by law or the SEC in connection with
any registration.
Section 12. Indemnification and Contribution.
(a) In the case of each offering of Registrable Securities made
pursuant to this Agreement, the Company shall, to the extent permitted by
applicable law, indemnify and hold harmless each Holder, its officers and
directors, each underwriter of Registrable Securities so offered and each
Person, if any, who controls any of the foregoing persons within the meaning of
the Securities Act ("Holder Indemnitees"), from and against any and all claims,
liabilities, losses, damages, expenses and judgments, joint or several, to which
they or any of them may become subject, including any amount paid in settlement
of any litigation commenced or threatened, and shall promptly reimburse them, as
and when incurred, for any legal or other expenses incurred by them in
connection with investigating any claims and defending any actions, insofar as
such losses, claims, damages, liabilities or actions shall arise out of, or
shall be based upon, any violation or alleged violation by the Company of the
Securities Act, any blue sky laws, securities laws or other applicable laws of
any state or country in which the Registrable Securities are offered, and
relating to action taken or action or inaction required of the Company in
connection with such offering, or shall arise out of, or shall be based upon,
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement (or in any preliminary or final prospectus included
therein) relating to the offering and sale of such Registrable Securities, or
any amendment thereof or supplement thereto, or in any document incorporated by
reference therein, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading; but the Company shall not be liable to any Holder
Indemnitee in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement, or any omission or alleged omission, if such statement
or omission shall have been made in reliance upon and in conformity with
information furnished to the Company in writing by or on behalf of such Holder
specifically for use in the preparation of the Registration Statement (or in any
preliminary or final prospectus included therein), or any amendment thereof or
supplement thereto. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of any Holder and shall
survive the transfer of such securities. The foregoing indemnity agreement is in
addition to any liability which the Company may otherwise have to any Holder
Indemnitee.
(b) In the case of each offering of Registrable Securities made
pursuant to this Agreement, each Holder participating in such offering, shall,
to the extent permitted by applicable law, indemnify and hold harmless the
Company, its officers and directors and each person, if any, who controls any of
the foregoing within the meaning of the Securities Act (the "Company
Indemnitees"), from and against any and all claims, liabilities, losses,
damages, expenses and judgments, joint or several, to which they or any of them
may become subject, including any amount paid in settlement of any litigation
commenced or threatened, and shall promptly reimburse them, as and when
incurred, for any legal or other expenses incurred by them in connection with
investigating any claims and defending any actions, insofar as any such losses,
12
claims, damages, liabilities or actions shall arise out of, or shall be based
upon, any violation by such Holder of the Securities Act, any blue sky laws,
securities laws or other applicable laws of any state or country in which the
Registrable Securities are offered and relating to action taken or action or
inaction required of such Holder in connection with such offering, or shall
arise out of, or shall be based upon, any untrue statement of a material fact
contained in the Registration Statement (or in any preliminary or final
prospectus included therein) relating to the offering and sale of such
Registrable Securities or any amendment thereof or supplement thereto, or any
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but in each case only
to the extent that such untrue statement is contained in, or such fact is
omitted from, information furnished in writing to the Company by or on behalf of
such Holder specifically for use in the preparation of such Registration
Statement (or in any preliminary or final prospectus included therein). Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of any Company Indemnitee. In no event shall the liability
of a Holder hereunder or under Section 12(d) be greater in amount than the
dollar amount of the net proceeds received by it upon the sale of Registrable
Securities pursuant to such offering. The foregoing indemnity is in addition to
any liability which Holder may otherwise have to any Company Indemnitee.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to this Section 12, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing, but the failure to give such notice shall not
relieve the indemnifying party or parties from any liability which it or they
may have to the indemnified party. In case any such proceeding shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party and shall pay as
incurred the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel at its own expense. Notwithstanding the foregoing, the indemnifying
party shall pay as incurred the fees and expenses of the counsel retained by the
indemnified party in the event (1) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (2) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. The indemnifying party, if the Company, shall
not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than two
separate firms, one for the Holders of Class B Warrants or the Ordinary Shares
for which the Class B Warrants have been exercised (the "Class B Holder
Indemnitees") and one for all other Holder Indemnitees (the "Other Holder
Indemnitees"). Such firm for the Class B Holder Indemnitees shall be designated
in writing by Holders of a majority of the Registrable Securities held by the
Class B Holder Indemnitees and disposed of under the applicable Registration
Statements. Such firm for the Other Holder Indemnitees shall be designated in
writing by the Holders of a majority of the Registrable Securities held by the
Other Holder Indemnitees and disposed of under the applicable Registration
Statement. The indemnifying party, if other than the Company, shall not, in
connection with any proceeding or related proceedings in the same jurisdiction
be liable for the
13
reasonable fees and expenses of more than one separate firm for the Company
Indemnitee, which firm shall be designated in writing by the Company. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested the indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by this Section, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without the indemnifying party's written
consent if (i) such settlement is entered into more than thirty (30) days after
receipt by the indemnifying party of the aforesaid request, and (ii) the
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the consent of the indemnified party, which consent shall not be
unreasonably withheld, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of a release from all
liability in respect to such claim or litigation or which requires action other
than the payment of money by the indemnifying party.
(d) If the indemnification provided for in this Section 12 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) in respect of any losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) referred to therein, or if the
indemnified party failed to give the notice required under subsection (c) and
the indemnified party is actually prejudiced by such failure, then each
indemnifying party shall, to the extent permitted by applicable law, contribute
to the amount paid or payable by the indemnified party as a result of such
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) in such proportion as is appropriate to reflect the relative fault of
all parties in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof), as well as any other relevant equitable considerations.
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
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties agree
that it would not be just and equitable if contributions pursuant to this
subsection (d) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to above shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), 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) Notwithstanding any other provision of this Section 12, the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or expense arises out of or is based upon an untrue
statement or alleged untrue statement of any material fact contained in any such
registration statement, preliminary prospectus, final prospectus or summary
14
prospectus contained therein or any omission to state therein a material fact
required to be stated therein or necessary to make the statements therein in
light of the circumstances in which they were made not misleading in a
prospectus or prospectus supplement, if such untrue statement or omission is
completely corrected in an amendment or supplement to such prospectus or
prospectus supplement, the seller of the Registrable Securities has an
obligation under the Securities Act to deliver a prospectus or prospectus
supplement in connection with such sale of Registrable Securities and the seller
of Registrable Securities thereafter fails to deliver such prospectus or
prospectus supplement as so amended or supplemented prior to or concurrently
with the sale of Registrable Securities to the person asserting such loss,
claim, damage or liability after the Company has furnished such seller with a
sufficient number of copies of the same.
Section 13. Expenses. In connection with any registration under this
Agreement the Company shall pay all Registration Expenses (to the extent not
borne by underwriters or others), except as provided in Section 3(g) or 4(e).
Each Holder shall pay its pro rata share of all other expenses of such
registration, including underwriters' discounts and compensation, broker's
commission or similar selling expenses, and each Holder shall pay its own
transfer taxes, if any, applicable to Registrable Securities.
Section 14. Notices. Except as otherwise provided below, whenever it
is provided in this Agreement that any notice, demand, request, consent,
approval, declaration or other communication shall or may be given to or served
upon any of the parties hereto, or whenever any of the parties hereto, wishes to
provide to or serve upon the other party any other communication with respect to
this Agreement, each such notice, demand, request, consent, approval,
declaration or other communication shall be in writing and shall be delivered in
person or sent by telecopy, as follows: (a) if to a Holder, at the most current
address given by such Holder to the Company by means of a notice given in
accordance with the provisions of this Section 14, and with respect to all other
holders is as set forth in the register for the Registrable Securities; and (b)
if to the Company, initially at the Company's principal address and thereafter
at such other address, notice of which is given in accordance with the
provisions of this Section 14. The furnishing of any notice required hereunder
may be waived in writing by the party entitled to receive such notice. Every
notice, demand, request, consent, approval, declaration or other communication
hereunder shall be deemed to have been duly furnished or served on the party to
which it is addressed, in the case of delivery in person or by telecopy, on the
date when sent (with receipt personally acknowledged in the case of telecopied
notice), and in all other cases, five business days after it is sent. Failure or
delay in delivering copies of any notice, demand, request, consent, approval,
declaration or other communication to the persons designated above to receive
copies shall in no way adversely affect the effectiveness of such notice,
demand, request, consent, approval, declaration or other communication.
Section 15. Entire Agreement. This Agreement represents the entire
agreement and understanding among the parties hereto with respect to the subject
matter hereof and supersedes any and all prior oral and written agreements,
arrangements and understandings among the parties hereto with respect to such
subject matter; and this Agreement can be amended, supplemented or changed, and
any provision hereof can be generally waived or a departure from any provision
hereof can be consented to, only by a written instrument making specific
reference to this Agreement signed by the Company and each Holder.
Notwithstanding the foregoing, any
15
individual party hereto may waive or consent to a departure from any provision
hereof which specifically affects only such individual party's rights hereunder.
Section 16. Term. This Agreement shall become effective upon the IPO
Date and (i) shall have a term of ten years, expiring at 5:00 P.M. (United
States Eastern Time) on the tenth anniversary of the IPO Date with respect to
all Holders other than Class B Holders and (ii) shall have a term of seven
years, expiring at 5:00 P.M. (United States Eastern Time) on the seventh
anniversary of the IPO Date with respect to the Class B Holders.
Section 17. Headings. The section headings contained in this Agreement
are for general reference purposes only and shall not affect in any manner the
meaning, interpretation or construction of the terms or other provisions of this
Agreement.
Section 18. Applicable Law. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of New York,
applicable without regard to the conflicts of law provisions thereof.
Section 19. Severability. If any provision of this Agreement shall be
held by any court of competent jurisdiction to be illegal, void or
unenforceable, such provision shall be of no force and effect, but the
illegality or unenforceability of such provision shall have no effect upon and
shall not impair the enforceability of any other provision of this Agreement.
Section 20. No Waiver. The failure of any party at any time or times
to require performance of any provision hereof shall not affect the right at a
later time to enforce the same. No waiver by any party of any condition, and no
breach of any provision, term, covenant, representation or warranty contained in
this Agreement, whether by conduct or otherwise, in any one or more instances,
shall be deemed to be construed as a further or continuing waiver of any such
condition or of the breach of any other provision, term, covenant,
representation or warranty of this Agreement.
Section 21. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same original instrument. Not all
parties need sign the same counterpart. Delivery by facsimile of a signature
page to this Agreement shall have the same effect as delivery of an original
executed counterpart.
Section 22. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; but nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of applicable law. If any Holder shall acquire Registrable
Securities, in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities such Holder
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement, including the restrictions on resale
set forth in this Agreement, and such Holder shall be entitled to receive the
benefits hereof.
16
Section 23. Consent to Jurisdiction and Service of Process. All
judicial proceedings arising out of or relating to this Agreement may be brought
in any state or federal court of competent jurisdiction in the State of New
York, and by execution and delivery of this Agreement, the Company accepts the
nonexclusive jurisdiction of the aforesaid courts and waives any defense of
forum non conveniens. The Company designates and appoints CT Corporation System,
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, and such other persons as may hereafter be
selected by the Company irrevocably agreeing in writing to so serve, as its
agent to receive on its behalf service of all process in any such proceedings in
any such court, such service being hereby acknowledged by the Company to be
effective and binding service in every respect. A copy of any such process so
served shall be mailed by registered mail to the Company at Xxxxxx House, 113
South Church Street, Xxxxxx Town, Grand Cayman, Cayman Islands, British West
Indies; provided, however, that, unless otherwise provided by applicable law,
any failure to mail such copy shall not affect the validity of service of such
process. If any agent appointed by the Company refuses to accept service, the
Company hereby agrees that service of process sufficient for personal
jurisdiction in any action against the Company under this Agreement in the State
of New York may be made by registered or certified mail, return receipt
requested, to the Company at its address set forth above, and the Company hereby
acknowledges that such service shall be effective and binding in every respect.
Nothing herein shall affect the right to serve process in any other manner
permitted by law or shall limit the right of the Investor to bring proceedings
against the Company in the courts of any other jurisdiction.
17
IN WITNESS WHEREOF, this Agreement has been executed and delivered as
of the date first above written.
SCOTTISH ANNUITY & LIFE HOLDINGS, LTD.
By:
--------------------------------------------
Name:
Title:
18
IN WITNESS WHEREOF, this Agreement has been executed and delivered as
of the date first above written.
------------------------------------------------
Xxxxxxx X. Xxxxxx
19
IN WITNESS WHEREOF, this Agreement has been executed and delivered as
of the date first above written.
------------------------------------------------
Xxxxxxxx X. Xxxxxxx
20
IN WITNESS WHEREOF, this Agreement has been executed and delivered as
of the date first above written.
AUDUBON ASSET, LIMITED
By:
--------------------------------------------
Name:
Title:
21
IN WITNESS WHEREOF, this Agreement has been executed and delivered as
of the date first above written.
SOULIEANA LIMITED
By:
--------------------------------------------
Name:
Title:
22
IN WITNESS WHEREOF, this Agreement has been executed and delivered as
of the date first above written.
NORTHERN BANK TRUST COMPANY (I.O.M.)
LIMITED, acting solely in its capacity as
trustee of THE SOUTH MADISON TRUST
By:
--------------------------------------------
Name:
Title:
23
IN WITNESS WHEREOF, this Agreement has been executed and delivered as
of the date first above written.
THE ROMAN ARCH FUND L.P.
By:
--------------------------------------------
Name:
Title:
THE ROMAN ARCH FUND II L.P.
By:
--------------------------------------------
Name:
Title:
24
IN WITNESS WHEREOF, this Agreement has been executed and delivered as
of the date first above written.
MAVERICK FUND U.S.A., LTD.
By:
--------------------------------------------
Name:
Title:
MAVERICK FUND II, LTD.
By:
--------------------------------------------
Name:
Title:
MAVERICK FUND, L.D.C.
By:
--------------------------------------------
Name:
Title:
25
Schedule A
INITIAL HOLDERS
Initial Holders Securities Purchase Agreements Securities
-------------------- ------------------------------------------ --------------------
Xxxxxxx X. Xxxxxx . Securities Purchase Agreement, dated 750,000 Class A
June 9, 1998, by and between the Warrants
Company and Xxxxxxx X. Xxxxxx
Xxxxxxxx X. . Securities Purchase Agreement, dated 50,000 Class A
Xxxxxxx Xxxx 9, 1998, by and between the Warrants
Company and Xxxxxxxx X. Xxxxxxx
Audubon Asset, . Securities Purchase Agreement, dated 500,000 Class A
Limited June 9, 1998, by and between the Warrants
Company and Audubon Asset, Limited
. Securities Purchase Agreement, dated 472,813 Ordinary
October 22, 1998, by and between the Shares and
Company and Audubon Asset, Limited 133,333 Class A
Warrants
. Letter Agreement, dated October 22, 466,667 Class A
1998, by and among the Company, Warrants
Aundyr Trust Company Limited, acting
solely in its capacity as trustee of
The Xxxxxx Trust, and Audubon Asset,
Limited
Soulieana Limited . Securities Purchase Agreement, dated 250,000 Class A
June 9, 1998, by and between the Warrants
Company and Soulieana Limited
. Securities Purchase Agreement, dated 236,407 Ordinary
October 22, 1998, by and between the Shares and
Company and Soulieana Limited 66,667 Class A
Warrants
. Letter Agreement, dated October 22, 233,333 Class A
1998, by and among the Company, Warrants
Trident Trust (IOM) Limited, acting
solely in its capacity as trustee of
The Tyler Trust, and Soulieana Limited
A-1
Initial Holders Securities Purchase Agreements Securities
-------------------- ------------------------------------------ --------------------
Northern Bank . Letter Agreement, dated October 22, 200,000 Class A
Trust Company 1998, by and between the Company Warrants
(I.O.M.) Limited, Northern Bank Trust Company (I.O.M.)
acting solely in its Limited, acting solely in its capacity
capacity as trustee as trustee of The South Madison Trust
of The South
Madison Trust
The Roman Arch . Warrant Purchase Agreement, dated 120,000 Class B
Fund L.P. June 18, 1998, by and between the Warrants
Company and The Roman Arch Fund
L.P.
The Roman Arch . Warrant Purchase Agreement, dated 80,000 Class B
Fund II L.P. June 18, 1998, by and between the Warrants
Company and The Roman Arch Fund II
L.P.
Maverick Fund . Securities Purchase Agreement, dated 209,078 Ordinary
U.S.A., Ltd. October 22, 1998, by and between the Shares and
Company and Maverick Fund U.S.A., 58,960 Class A
Ltd. Warrants
Maverick Fund II, . Securities Purchase Agreement, dated 39,433 Ordinary
Ltd. October 22, 1998, by and between the Shares and
Company and Maverick Fund II, Ltd. 11,120 Class A
Warrants
Maverick Fund, . Securities Purchase Agreement, dated 460,709
L.D.C. October 22, 1998, by and between the Ordinary
Company and Maverick Fund, L.D.C. Shares and
129,920 Class A
Warrants
A-2
Schedule B
----------
ORDINARY SHARES HELD BY INITIAL HOLDERS AND
-------------------------------------------
PERMITTED TRANSFEREES AS OF THE DATE OF THIS AGREEMENT
------------------------------------------------------
Initial Holders Ordinary Shares
--------------------- ---------------------
Northern Bank Trust 152,000
Company (I.O.M.)
Limited, acting solely in
its capacity as trustee of
The South Madison Trust
B-1
