EXHIBIT VI
EXECUTION COPY
SHAREHOLDERS AGREEMENT
BY AND AMONG
THE SHAREHOLDERS SIGNATORY HERETO
and
arch CAPITAL GROUP ltd.
DATED AS OF NOVEMBER 20, 2001
TABLE OF CONTENTS
Page
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ARTICLE I
CERTAIN DEFINITIONS
Section 1.1. Certain Definitions ......................... 2
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties of the Company 7
Section 2.2. Representations and Warranties of Warburg ... 8
Section 2.3. Representations and Warranties of H&F ....... 8
Section 2.4. Representations and Warranties of GE ........ 8
Section 2.5. Representations and Warranties of Trident ... 9
Section 2.6. Representations and Warranties of Farallon .. 9
ARTICLE III
VOTING; BOARD REPRESENTATION
Section 3.1. Board of Directors .......................... 9
Section 3.2. Committees of the Board ..................... 11
Section 3.3. Investor Protection Matters ................. 11
Section 3.4. Voting ...................................... 13
Section 3.5. Chairman of the Company ..................... 13
Section 3.6. Certain Transactions ........................ 13
ARTICLE IV
REGISTRATION RIGHTS
Section 4.1. Demand Registrations ........................ 14
Section 4.2. Shelf Registration .......................... 16
Section 4.3. Piggy-Back Registration ..................... 16
Section 4.4. Allocation of Shares to be Registered ....... 16
Section 4.5. Registration Procedures ..................... 17
Section 4.6. Registration Expenses ....................... 20
Section 4.7. Indemnification; Contribution ............... 20
ARTICLE V
TAG-ALONG RIGHTS; DRAG-ALONG RIGHTS; RESTRICTIONS ON TRANSFER AND CONVERSION
Section 5.1. Tag-Along Rights; Drag-Along Rights ......... 22
Section 5.2. Restrictions on Transfer .................... 23
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Section 5.3. Restrictions on Conversion. ................. 24
ARTICLE VI
RESTRICTIONS ON DIVIDENDS AND SHARE REPURCHASES
ARTICLE VII
EFFECTIVENESS AND TERMINATION
Section 7.1. Effectiveness .............................. 25
Section 7.2. Termination ................................ 25
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Injunctive Relief .......................... 25
Section 8.2. Successors and Assigns ..................... 26
Section 8.3. Amendments; Waiver ......................... 26
Section 8.4. Notices .................................... 26
Section 8.5. Applicable Law ............................. 28
Section 8.6. Headings ................................... 28
Section 8.7. Integration ................................ 28
Section 8.8. Severability ............................... 28
Section 8.9. Consent to Jurisdiction .................... 29
Section 8.10. Counterparts ............................... 29
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SHAREHOLDERS AGREEMENT, dated as of November 20, 2001 (this "Agreement"), by and
among ARCH Capital Group Ltd., a company registered under the laws of Bermuda
(the "Company"), WARBURG PINCUS (BERMUDA) PRIVATE EQUITY VIII, L.P., a limited
partnership organized under the laws of Bermuda, WARBURG PINCUS (BERMUDA)
INTERNATIONAL PARTNERS, L.P., a limited partnership organized under the laws of
Bermuda, WARBURG PINCUS NETHERLANDS INTERNATIONAL PARTNERS I, C.V., an entity
organized under the laws of the Netherlands, WARBURG PINCUS NETHERLANDS
INTERNATIONAL PARTNERS II, C.V., an entity organized under the laws of the
Netherlands (each, a "Warburg Purchaser," and collectively, "Warburg"), HFCP IV
(BERMUDA), L.P., a limited partnership organized under the laws of Bermuda, H&F
INTERNATIONAL PARTNERS IV-A (BERMUDA), L.P., a limited partnership organized
under the laws of Bermuda, H&F INTERNATIONL PARTNERS IV-B (BERMUDA), L.P., a
limited partnership organized under the laws of Bermuda, and H&F EXECUTIVE FUND
IV (BERMUDA), L.P., a limited partnership organized under the laws of Bermuda
(each, a "H&F Purchaser," and collectively, "H&F," and together with Warburg and
such other Persons that are, or may hereafter become, parties hereto (in either
case for purposes of such provisions hereof as may be indicated immediately
above the signature of such other Persons) pursuant to the terms of Section 8.2
hereof, the "Investors").
W I T N E S S E T H:
WHEREAS, the Company and certain of the Investors have entered
into a Subscription Agreement, dated as of October 24, 2001, as amended November
20, 2001 (the "Subscription Agreement"), pursuant to the terms of which, among
other things, the Company shall issue and sell to the Investors, and Investors
shall acquire from the Company, (1) Series A Convertible Preference Shares, par
value U.S. $0.01 per share, of the Company (the "Preference Shares"), and (2)
Class A Warrants to purchase common shares, par value U.S. $0.01 per share, of
the Company (the "Common Shares") (the "Class A Warrants," and together with the
Preference Shares, the "Purchased Securities") (such sale and purchase and the
other transactions contemplated by the Subscription Agreement or described in
the following recitals, the "Transactions");
WHEREAS, the Company and the purchasers named therein (the
"Management Purchasers") have entered into a Management Subscription Agreement,
dated as of October 24, 2001 (the "Management Subscription Agreement"), pursuant
to the terms of which, among other things, the Company shall issue and sell to
the Management Purchasers, and the Management Purchasers shall acquire from the
Company, Purchased Securities;
WHEREAS, the Company, Warburg, H&F and Trident have entered
into a letter agreement, dated as of November 8, 2001, pursuant to the terms of
which, among other
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things, Warburg assigned to Trident its right, and Trident assumed from Warburg
its obligation, under the Subscription Agreement to purchase certain Purchased
Securities;
WHEREAS, the Company, Warburg, H&F and GE have entered into a
letter agreement, dated as of November 20, 2001, pursuant to the terms of which,
among other things, Warburg assigned to GE its right, and GE assumed from
Warburg its obligation, under the Subscription Agreement to purchase certain
Purchased Securities;
WHEREAS, the Company, Warburg, H&F and Farallon have entered
into a letter agreement, dated as of November 20, 2001, pursuant to the terms of
which, among other things, H&F assigned to Farallon its right, and Farallon
assumed from H&F its obligation, under the Subscription Agreement to purchase
certain Purchased Securities;
WHEREAS, the execution of this Agreement is a condition to
the obligation of the parties to consummate the Transactions; and
WHEREAS, the Company and Investors desire to establish in this
Agreement certain terms and conditions concerning the acquisition of Purchased
Securities and related provisions concerning the Investors' relationship with
and investment in the Company following the consummation of the Transactions;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 Certain Definitions. In addition to other terms
defined elsewhere in this Agreement, as used in this Agreement, the following
terms shall have the meanings ascribed to them below:
"Affiliate" shall mean, with respect to any Person, any other
Person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, such first
Person (including with respect to individuals, any trusts, foundations, family
limited partnerships or similar entities); provided, however, that no portfolio
investment of either Warburg or H&F, or any of their respective Affiliates,
shall be deemed to be an Affiliate of Warburg or H&F, as the case may be;
provided, further, that none of the Farallon Purchasers or Farallon, or any of
their respective Affiliates, shall be deemed to be an Affiliate of H&F. As used
in this definition, "control" (including, with correlative meanings, "controlled
by" and "under common control with") shall mean possession, directly or
indirectly, of power to direct or cause the direction of management or
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policies (whether through ownership of securities or partnership or other
ownership interests, by contract or otherwise).
"Agreement" shall have the meaning assigned to such term in
the preamble hereto.
"Approval Date" shall mean the later of the dates on which the
Requisite Shareholder Approval and the Requisite Regulatory Approval occur.
"Beneficially Own" shall mean, with respect to any securities,
having "beneficial ownership" of such securities for purposes of Rule 13d-3 or
13d-5 under the Exchange Act as in effect on the date hereof, and "Beneficial
Ownership" shall have the corresponding meaning.
"Blackout Period" shall have the meaning assigned in Section
4.1(c).
"Board" shall mean the duly elected Board of Directors of the
Company in office at the applicable time.
"Business Day" shall mean any day that is not a Saturday,
Sunday or other day on which the commercial banks in New York City are
authorized or required by law to remain closed.
"Bye-laws" shall mean the bye-laws of the Company.
"Claims" shall have the meaning assigned in Section 4.7(a).
"Class A Warrants" shall have the meaning assigned in the
recitals hereto.
"Closing" shall mean the consummation of the Transactions
pursuant to the terms of the Subscription Agreement.
"Common Shares" shall have the meaning assigned in the
recitals hereto.
"Company" shall have the meaning assigned in the preamble
hereto.
"Demand Registration" shall mean any registration effected
pursuant to a Warburg Demand Request or a H&F Demand Request.
"Director" shall mean any member of the Board.
"Effective Period" shall have the meaning assigned in Section
4.5(a)(3).
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"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations that may from time to time be
promulgated thereunder.
"Existing Registration Rights" shall have the meaning assigned
in Section 4.1(a) hereof.
"Farallon" shall mean Farallon Capital Partners, L.P.,
Farallon Capital Institutional Partners II, L.P., Farallon Capital Institutional
Partners III, L.P. and RR Capital Partners, L.P., collectively, with each
individually being a "Farallon Purchaser".
"Farallon Permitted Transferee" shall mean, with respect to
any Farallon Purchaser, any Person or entity that directly or indirectly through
one or more intermediaries controls, or is controlled by or is under common
control with such Farallon Purchaser or an entity over which such Farallon
Purchaser has management rights.
"GE" shall mean Insurance Private Equity Investors, L.L.C.
and Orbital Holdings, Ltd., collectively, with each individually being a "GE
Purchaser".
"GE Permitted Transferee" shall mean, with respect to any GE
Purchaser, any Person or entity that directly or indirectly through one or more
intermediaries controls, or is controlled by or is under common control with
such GE Purchaser or an entity over which such GE Purchaser has management
rights, or any successor trustees or trust (if applicable).
"H&F" shall have the meaning assigned in the preamble hereto.
"H&F Demand Request" shall have the meaning assigned in
Section 4.1(b) hereof.
"H&F Demand Shares" shall have the meaning assigned in Section
4.1(b) hereof.
"H&F Directors" shall have the meaning assigned in Section
3.1(c) hereof.
"H&F Purchaser" shall have the meaning assigned the preamble
hereto.
"H&F Registrable Shares" shall have the meaning assigned in
Section 4.1(b) hereof.
"Independent Director" means a Director who is not an
Affiliate of either Warburg or H&F.
"Initial H&F Director" shall have the meaning assign in
Section 3.1(b).
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"Initial Investment" shall mean, with respect to any Investor,
the total number of Common Shares issuable (a) upon conversion of the Preference
Shares acquired by such Investor at the Closing, (b) upon conversion of any
additional Preference Shares acquired by such Investor with respect to the
Preference Shares referred to in clause (a) pursuant to the terms of the
Subscription Agreement (or the Management Subscription Agreement), (c) upon
exercise for cash of the Class A Warrants acquired by such Investor at Closing,
(d) upon exercise for cash of any additional Class A Warrants acquired by such
Investor pursuant to the terms of the Subscription Agreement (or the Management
Subscription Agreement) and (e) any other securities issued in respect of the
securities described in clauses (a) though (d) of this definition or into which
such securities shall be converted in connection with stock splits, reverse
stock splits, stock dividends or distributions, or combinations or similar
recapitalizations.
"Initial Shares" shall mean, with respect to any Investor, (a)
the Preference Shares acquired by such Investor at the Closing, (b) any
additional Preference Shares acquired by such Investor with respect to the
Preference Shares referred to in clause (a) pursuant to the terms of the
Subscription Agreement (or the Management Subscription Agreement), (c) the Class
A Warrants acquired by such Investor at Closing, (d) any additional Class A
Warrants acquired by such Investor pursuant to the terms of the Subscription
Agreement (or the Management Subscription Agreement) and (e) any other
securities issued in respect of the securities described in clauses (a) though
(d) of this definition or into which such securities shall be converted in
connection with stock splits, reverse stock splits, stock dividends or
distributions, or combinations or similar recapitalizations. References to the
"the number of Initial Shares" shall mean the number of Common Shares comprising
the Initial Shares (based, in the case of Preference Shares and Class A
Warrants, upon the number of Common Shares issuable upon conversion or exercise
for cash thereof).
"Initial Warburg Director" shall have the meaning assigned in
Section 3.1(b) hereof.
"Interested Party Transaction" shall mean any transaction
between the Company or any of its Subsidiaries and any officer or Director, or
Affiliate of any officer or Director, of the Company.
"Investors" shall have the meaning assigned in the preamble
hereto.
"Investor Shares" shall mean, at any time, any Common Shares
issuable in respect of Initial Shares acquired by an Investor and any Common
Shares acquired by an Investor after the Closing (and any Common Shares or other
securities issued in respect thereof or into which such Common Shares shall be
converted in connection with stock splits, reverse stock splits, stock dividends
or distributions, or combinations or similar recapitalizations).
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"Management Purchasers" shall have the meaning set forth in
the recitals hereto.
"Management Subscription Agreement" shall have the meaning set
forth in the recitals hereto.
"Mandatory Conversion Date" shall have the meaning set forth
in Section 3.3 hereof.
"Market Value" shall mean, as of any date, the average of the
daily high and low sales prices per Common Share on the Nasdaq for each of the
twenty full trading days immediately preceding (but not including) such date.
"Material Transaction" shall have the meaning assigned in
Section 4.1(c).
"Maximum Number" shall have the meaning assigned in Section
4.4.
"Nasdaq" shall mean The Nasdaq Stock Market, Inc.
"Nasdaq Independent Director" shall have the meaning specified
in Rule 4200(a)(14) of the Rules of the National Association of Securities
Dealers, Inc.
"Participating Investor" shall have the meaning assigned in
Section 4.5(a)(2) hereof.
"Per Share Price" shall have the meaning assigned in the
Subscription Agreement.
"Person" shall mean any individual, corporation, partnership,
limited liability company, association, trust or other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Piggy-Back Registration" shall have the meaning assigned in
Section 4.3.
"Piggy-Back Request" shall have the meaning assigned in
Section 4.3.
"Preference Shares" shall have the meaning assigned in the
recitals hereto.
"Purchased Securities" shall have the meaning assigned in the
recitals hereto.
"Registrable Shares" shall have the meaning assigned in
Section 4.1(b) hereof.
"Requisite Regulatory Approval" shall have the meaning
assigned in the Certificate of Designations for the Preference Shares.
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"Requisite Shareholder Approval" shall have the meaning
assigned in the Certificate of Designations for the Preference Shares.
"Retained Investment" shall mean, with respect to any
Investor, at any time, the amount of the Initial Investment Beneficially Owned
by such Investor at such time.
"Retained Percentage" shall mean, with respect to any
Investor, at any time, the quotient, expressed as a percentage, of (a) such
Investor's Retained Investment, over (b) such Investor's Initial Investment.
"SEC" shall mean the United States Securities and Exchange
Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations that may from time to time be promulgated
thereunder.
"Selling Investor" shall have the meaning assigned in Section
5.1(a) hereof.
"Shelf Registration Statement" shall have the meaning assigned
in Section 4.2 hereof.
"Subscription Agreement" shall have the meaning assigned in
the recitals hereto.
"Subsidiary" shall mean, with respect to any Person, any other
entity of which securities or other ownership interests having ordinary power to
elect a majority of the board of directors or other persons performing similar
functions are at any time directly or indirectly owned by such Person.
"Tag-Along Investor" shall have the meaning assigned in
Section 5.1(a) hereof.
"Third Party Sale" shall have the meaning assigned in Section
5.1(a) hereof.
"Third Party Sale Notice" shall have the meaning assigned in
Section 5.1(a) hereof.
"Transactions" shall have the meaning assigned in the recitals
hereto.
"Trident" shall mean Trident II, L.P., Xxxxx & XxXxxxxx
Capital Professionals Fund, L.P. and Xxxxx & McLennan Employee's Securities
Company, L.P., collectively, with each individually a "Trident Purchaser."
"Votes" shall mean votes entitled to be cast generally in the
election of Directors.
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"Voting Power" shall mean, calculated at a particular point in
time, the ratio, expressed as a percentage, of (a) the Votes represented by the
Voting Securities with respect to which the Voting Power is being determined, to
(b) the aggregate Votes represented by all then outstanding Voting Securities.
For this purpose, the votes attributable to the Preference Shares shall be on an
as-converted basis, without regard to the limitations imposed under the
Certificate of Designations.
"Voting Securities" shall mean (a) the Common Shares, (b) the
Preference Shares and (c) shares of any other class of securities of the Company
then entitled to vote generally in the election of Directors.
"Warburg" shall have the meaning assigned in the preamble
hereto.
"Warburg Demand Request" shall have the meaning assigned in
Section 4.1(a) hereof.
"Warburg Demand Shares" shall have the meaning assigned in
Section 4.1(a) hereof.
"Warburg Directors" shall have the meaning assigned in Section
3.1(c) hereof.
"Warburg Purchaser" shall have the meaning assigned in the
preamble hereto.
"Warburg Registrable Shares" shall have the meaning assigned
in Section 4.1(a) hereof.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of the Company.
The Company represents and warrants to each Investor as follows:
(a) The Company has been duly formed and is validly existing
as a company in good standing under the laws of Bermuda and has all
necessary corporate power and authority to enter into this Agreement
and to carry out its obligations hereunder.
(b) This Agreement has been duly and validly authorized by the
Company and the Company has taken all necessary and appropriate action
to execute and deliver this Agreement and to perform its obligations
hereunder.
(c) This Agreement has been duly executed and delivered by
the Company and, assuming due authorization and valid execution and
delivery by each other party
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hereto, is a valid and binding obligation of the Company, enforceable
against it in accordance with its terms.
Section 2.2 Representations and Warranties of Warburg. Each
Warburg Purchaser represents and warrants to each other party hereto as follows:
(a) Such Warburg Purchaser has been duly formed and is validly
existing and in good standing, to the extent applicable, under the laws
of its respective jurisdiction of formation and has all necessary power
and authority to enter into this Agreement and to carry out its
obligations hereunder.
(b) This Agreement has been duly and validly authorized by
such Warburg Purchaser and such Warburg Purchaser has taken all
necessary and appropriate action to execute and deliver this Agreement
and to perform its obligations hereunder.
(c) This Agreement has been duly executed and delivered by
such Warburg Purchaser and, assuming due authorization and valid
execution and delivery by the Company, is a valid and binding
obligation of such Warburg Purchaser, enforceable against it in
accordance with its terms.
Section 2.3 Representations and Warranties of H&F. Each H&F
Purchaser represents and warrants to each other party hereto as follows:
(a) Such H&F Purchaser has been duly formed and is validly
existing under the laws of its respective jurisdiction of formation and
has all necessary power and authority to enter into this Agreement and
to carry out its obligations hereunder.
(b) This Agreement has been duly and validly authorized by
such H&F Purchaser and such H&F Purchaser has taken all necessary and
appropriate action to execute and deliver this Agreement and to perform
its obligations hereunder.
(c) This Agreement has been duly executed and delivered by
such H&F Purchaser and, assuming due authorization and valid execution
and delivery by the Company, is a valid and binding obligation of such
H&F Purchaser, enforceable against it in accordance with its terms.
Section 2.4 Representations and Warranties of GE. Each GE
Purchaser represents and warrants to each other party hereto as follows:
(a) Such GE Purchaser has been duly formed and is validly
existing under the laws of its respective jurisdiction of formation and
has all necessary power and authority to enter into this Agreement and
to carry out its obligations hereunder.
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(b) This Agreement has been duly and validly authorized by
such GE Purchaser and such GE Purchaser has taken all necessary and
appropriate action to execute and deliver this Agreement and to perform
its obligations hereunder.
(c) This Agreement has been duly executed and delivered by
such GE Purchaser and, assuming due authorization and valid execution
and delivery by the Company, is a valid and binding obligation of such
GE Purchaser, enforceable against it in accordance with its terms.
Section 2.5 Representations and Warranties of Trident. Each
Trident Purchaser represents and warrants to each other party hereto as follows:
(a) Such Trident Purchaser has been duly formed and is validly
existing under the laws of its respective jurisdiction of formation and
has all necessary power and authority to enter into this Agreement and
to carry out its obligations hereunder.
(b) This Agreement has been duly and validly authorized by
such Trident Purchaser and such Trident Purchaser has taken all
necessary and appropriate action to execute and deliver this Agreement
and to perform its obligations hereunder.
(c) This Agreement has been duly executed and delivered by
such Trident Purchaser and, assuming due authorization and valid
execution and delivery by the Company, is a valid and binding
obligation of such Trident Purchaser, enforceable against it in
accordance with its terms.
Section 2.6 Representations and Warranties of Farallon. Each
Farallon Purchaser represents and warrants to each other party hereto as
follows:
(a) Such Farallon Purchaser has been duly formed and is
validly existing under the laws of its respective jurisdiction of
formation and has all necessary power and authority to enter into this
Agreement and to carry out its obligations hereunder.
(b) This Agreement has been duly and validly authorized by
such Farallon Purchaser and such Farallon Purchaser has taken all
necessary and appropriate action to execute and deliver this Agreement
and to perform its obligations hereunder.
(c) This Agreement has been duly executed and delivered by
such Farallon Purchaser and, assuming due authorization and valid
execution and delivery by the Company, is a valid and binding
obligation of such Farallon Purchaser, enforceable against it in
accordance with its terms.
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ARTICLE III
VOTING; BOARD REPRESENTATION
Section 3.1 Board of Directors. (a) The Company shall be
managed by its duly elected officers subject to the overall direction and
supervision of the Board. Each of Warburg and H&F shall, and shall cause its
controlled Affiliates to, vote all Voting Securities that such Investor and its
controlled Affiliates Beneficially Own and take any and all actions as may be
reasonably necessary to cause the provisions of this Section 3.1, including the
election of the Warburg Directors and H&F Directors, to be effectuated.
(b) Prior to the Closing, and as a condition to the Closing,
the Company shall use its best efforts to secure the resignation of a number of
Directors such that there remain seven Directors immediately following the
Closing (the "Pre-Closing Directors"), of whom at least two shall qualify as
Nasdaq Independent Directors. Immediately following the Closing, the size of the
Board shall be decreased such that the Board shall consist of nine Directors,
and one Director designated by Warburg, (the "Initial Warburg Director") and one
Director designated by H&F (the "Initial H&F Director") shall each be appointed
by the Board as a director to serve in such classes of Directors as may be
necessary to assure that each class in Directors is as near in equal in number
as possible and that the Initial Warburg Director and the Initial H&F Director
are distributed among different classes.
(c) Effective as of 12:00 a.m. on the date immediately
following the Approval Date, the size of the Board shall be increased such that
the Board shall then and thereafter consist of 15 Directors (such number not to
be increased without the consent of Warburg and H&F) and (i) four individuals
designated by Warburg (together with the Initial Warburg Director, and any other
replacements or substitutions therefor, the "Warburg Directors"), and (ii) two
individual designated by H&F (together with the Initial H&F Director, and any
other replacements or substitutions therefor, the "H&F Directors") shall each be
appointed by the Board as a Director to serve in such classes of Directors as
may be necessary to assure that each class in Directors is as near in equal in
number as possible and that the Warburg Directors and the H&F Directors,
respectively, are distributed among different classes.
(d) For so long as Warburg's Retained Percentage is equal to
or exceeds 75%, the Initial Warburg Director and, following the Approval Date
each Warburg Director, shall be included in the slate of nominees recommended by
the Board to shareholders for election as directors at each annual general
meeting of shareholders at which such Warburg Director's term is scheduled to
expire. For so long as Warburg's Retained Percentage is less than 75% but
exceeds or is equal to 55%, there shall be a number of individuals designated by
Warburg included in the slate of nominees recommended by the Board to
shareholders for election as directors at each annual general meeting of
shareholders such that the aggregate
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number of Warburg Directors shall be not less than four. For so long as
Warburg's Retained Percentage is less than 55% but exceeds or is equal to 40%,
there shall be a number of individuals designated by Warburg included in the
slate of nominees recommended by the Board to shareholders for election as
directors at each annual general meeting of shareholders such that the aggregate
number of Warburg Directors shall be not less than three. For so long as
Warburg's Retained Percentage is less than 40% but exceeds or is equal to 25%,
there shall be a number of individuals designated by Warburg included in the
slate of nominees recommended by the Board to shareholders for election as
directors at each annual general meeting of shareholders such that the aggregate
number of Warburg Directors shall be not less than two. For so long as Warburg's
Retained Percentage is less than 25% but is equal to or exceeds 10%, there shall
be a number of individuals designated by Warburg included in the slate of
nominees recommended by the Board to shareholders for election as directors at
each annual general meeting of shareholders such that the aggregate number of
Warburg Directors shall be not less than one. For so long as Warburg has the
power to have at least two Directors included in the slate of nominees
recommended by the Board, power with respect to one such Director shall be
exercised by Warburg Pincus (Bermuda) Private Equity VIII, L.P and power with
respect to one such Director shall be exercised by Warburg Pincus (Bermuda)
International Partners, L.P.
(e) For so long as H&F's Retained Percentage is equal to or
exceeds 60%, each H&F Director shall be included in the slate of nominees
recommended by the Board to shareholders for election as directors at each
annual general meeting of shareholders at which such H&F Director's term is
scheduled to expire. For so long as H&F's Retained Percentage is less than 60%
but exceeds or is equal to 35%, there shall be a number of individuals
designated by H&F included in the slate of nominees recommended by the Board to
shareholders for election as directors at each annual general meeting of
shareholders such that the aggregate number of H&F Directors shall be not less
than two. For so long as H&F's Retained Percentage is less than 35% but is equal
to or exceeds 20%, there shall be a number of individuals designated by H&F
included in the slate of nominees recommended by the Board to shareholders for
election as directors at each annual general meeting of shareholders such that
the aggregate number of H&F Directors shall be not less than one. For so long as
H&F has the power to have at least one Director included in the slate of
nominees recommended by the Board, such power shall be exercised by HFCP IV
(Bermuda), L.P.
(f) Each of Warburg and H&F shall provide to the Company in a
timely manner all information required by Regulation 14A and Schedule 14A under
the Exchange Act with respect to each Warburg Director and each H&F Director,
respectively.
Section 3.2 Committees of the Board. The Company and the
Investors agree that (1) for so long as there is at least one Warburg Director
on the Board, each committee of the Board shall include at least one Warburg
Director, and (2) for so long as there is at least one H&F Director on the
Board, each committee of the Board shall include at least one H&F
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Director. The foregoing is subject to any restrictions on service on the audit
committee as may be applicable under the rules of the National Association of
Securities Dealers, Inc. or the SEC.
Section 3.3 Investor Protection Matters. Except as
specifically set forth herein, in accordance with the Company's Bye-laws, the
Board shall act by the vote of a majority of the Directors present at a meeting,
and the required quorum for a meeting of the Board shall be a majority of the
whole Board. Notwithstanding the foregoing, and except as specifically set forth
in the Subscription Agreement, (a) prior to the Approval Date, unless also
approved by the Initial Warburg Director and the Initial H&F Director, and (b)
following the Approval Date, unless also approved by (i) at least one Warburg
Director, if at such time Warburg's Retained Percentage equals or exceeds 25%,
and (ii) at least one H&F Director, if at such time H&F's Retained Percentage
equals or exceeds 50%, the Company shall not (and shall not permit any of its
Subsidiaries to):
(1) amend, or propose to amend, its certificate of
incorporation, memorandum of association, bye-laws, or other
organizational documents, or amend, terminate or waive any provision
under, the Subscription Agreement or any other Agreement entered
into in connection therewith;
(2) split, consolidate, combine, subdivide, redeem or
reclassify its share capital or other equity interests, or amend any
term of the outstanding securities of the Company or its
Subsidiaries;
(3) declare, set aside, make or pay any dividend or other
distribution in respect of its share capital or other equity
interests, or purchase or redeem, directly or indirectly, any share
capital or other equity interests (other than (A) dividends by a
Subsidiary of the Company to the Company or a Subsidiary of the
Company, and (B) dividends or other distributions by any entity in
which the Company or any Subsidiary owns a minority interest, made
in the normal course of business, consistent with past practice);
(4) other than (A) in respect of grants or exercises under the
1999 Long Term Incentive and Share Award Plan, the 1995 Long Term
Incentive and Share Award Plan and the Long Term Incentive Plan for
New Employees, (B) issuances of securities pursuant to the
Subscription Agreement and the Management Subscription Agreement,
and (C) issuances of securities upon conversion or exercise of
securities issued pursuant to clause (B) or of securities
outstanding on the date hereof, issue, deliver or sell, or authorize
the issuance, delivery or sale of, any share capital of any class,
any equity interest, or any options, warrants, conversion or other
rights to purchase any such shares or equity interests, or any
securities convertible into or exchangeable for such shares or
equity interests, or issue or authorize the issuance of any other
security in respect of or in lieu of or in substitution for shares
of capital or
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(4) equity interests, or enter into any agreements restricting
the transfer of, or affecting the rights of holders of, Common
Shares, grant any preemptive or anti-dilutive rights to any holder
of any class of securities of the Company, or grant registration
rights with respect to any of the Company's securities;
(5) amend or waive any rights under any grants made under the
Long Term Incentive Plan for New Employees;
(6) incur any indebtedness for borrowed money, guarantee any
such indebtedness or issue or sell any debt securities, in excess of
$5,000,000 in the aggregate, or prepay or refinance any indebtedness
for borrowed money;
(7) engage in any Interested Party Transaction;
(8) acquire any assets or properties for cash or otherwise for
an amount in excess of $5,000,000 in the aggregate;
(9) acquire, whether by means of merger, stock or asset
purchase, joint venture or other similar transaction, any equity
interest in, or all or substantially all of the assets of any
Person, or any business or division of any Person;
(10) replace the independent auditors of the Company or make
any material change in any method of financial accounting or
accounting practice, except for any such change required by reason
of a concurrent change in U.S. generally accepted accounting
principles;
(11) sell or otherwise dispose of assets material to the
Company and its Subsidiaries taken as a whole, except as
specifically contemplated by the Subscription Agreement;
(12) increase by 5% or more the annual base compensation of
any officer or key employee of the Company, or enter into or make
any material change in any severance contract or arrangement with
any such officer or key employee;
(13) consummate a complete liquidation or dissolution of the
Company, a merger or consolidation (A) in which the Company or any
Subsidiary is a constituent corporation or (B) with respect to which
the Common Shares would have the right to vote under applicable law,
a sale of all or substantially all of the Company's assets, or any
similar business combination;
(14) enter into any transaction involving in excess of
$1,000,000, or, if such transaction is in the ordinary course of
business consistent with past practice, $5,000,000;
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(15) approve the annual plan, annual capital expenditure
budget or the five-year plan of the Company and its Subsidiaries,
taken as a whole;
(16) remove the Chief Executive Officer or Chairman of the
Company, or appoint a new Chief Executive Officer or Chairman of the
Company; or
(17) enter into any agreement with respect to the foregoing.
Nothing in this Section 3.3 shall grant either H&F or Warburg any right or
consent to the extent that such right would result in such party being deemed to
"control" an insurance subsidiary of the Company that is domiciled in any state
in the United States, where the exercise of such control would otherwise require
the prior approval of such state. In addition, the rights of Warburg and H&F set
forth in this Section 3.3 shall, in any event, terminate upon the mandatory
conversion of the Preference Shares under paragraph (g)(2) of the Certificate of
Designations for the Preference Shares (the "Mandatory Conversion Date") or the
earlier conversion of all Preference Shares in accordance with their terms.
Section 3.4 Voting. Each Investor agrees to vote all Voting
Securities Beneficially Owned by such Investor or by any controlled Affiliate of
such Investor in favor of (a) the proposals to be submitted for approval of the
shareholders of the Company at the special general meeting of the Company's
shareholders to be held in connection with the Transactions and (b) the
proposals to approve the grant to Xxxxxx Xxxxxxxx of 1,689,629 restricted shares
and the grant to Xxxx X. Xxxxxxxx of options to purchase 1,126,419 Common Shares
at $20.00 per share, which grants were made in connection with the Transactions,
which such proposals will be submitted for approval of the shareholders of the
Company at the 2002 annual general meeting of the Company's shareholders.
Section 3.5 Chairman of the Company. For so long as he is
willing and able to serve as the Chairman of the Company, Warburg and H&F agree
to take such actions as may be necessary to cause Xxxxxx Xxxxxxxx to be duly
elected as Chairman of the Company.
Section 3.6 Certain Transactions. For a period of two years
after the Closing, except for transactions specifically contemplated by this
Agreement, the Related Agreements (as defined in the Subscription Agreement) or
the Purchased Securities, neither Warburg nor H&F nor any of their respective
Affiliates will, directly or indirectly, without the prior approval of a
majority of the Independent Directors: (a) acquire securities or assets from the
Company or any of its Subsidiaries, (b) engage in any "Rule 13e-3 transaction"
(as such term is defined in Rule 13e-3(a)(3) under the Securities Exchange Act
of 1934, as amended) involving the Company, or (c) engage in any other
transaction that would result in the compulsory acquisition of Common Shares.
The Company shall not agree to amend this Section 3.6, without the prior
approval of a majority of the Independent Directors. The Company, Warburg and
H&F shall endeavor to include at all times two Independent Directors on the
Board.
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ARTICLE IV
REGISTRATION RIGHTS
Section 4.1 Demand Registrations. (a) Warburg may at any time
following the date hereof and on not more than five separate occasions in the
aggregate and not more frequently than once during any 180 day period, require
the Company to file a registration statement under the Securities Act in respect
of all or a portion of the Investor Shares then Beneficially Owned by Warburg or
by any other person that Beneficially Owns Investor Shares and who acquired such
Investor Shares in connection with such person's status as a partner in any
partnership in which Warburg or any of its Affiliates is the general partner
(all such Investor Shares, the "Warburg Registrable Shares") (provided that such
request covers Warburg Registrable Shares with a Market Value on the date of the
Demand Request of at least $25 million), by delivering to the Company a written
notice stating that such right is being exercised, specifying the number of
Common Shares to be included in such registration (the shares subject to such
request, the "Warburg Demand Shares") and describing the intended method of
distribution thereof (a "Warburg Demand Request"). Upon receiving a Warburg
Demand Request, the Company shall (1) provide written notice of the Warburg
Demand Request, pursuant to Section 4.3 hereof, to H&F and each other Investor,
(2) use reasonable efforts to file as promptly as reasonably practicable a
registration statement on such form as the Company may reasonably deem
appropriate providing for the registration of the sale of such Warburg Demand
Shares and any other Investor Shares to be included pursuant to Sections 4.3 and
4.4 hereof pursuant to the intended method of distribution and (3) after the
filing of an initial version of the registration statement, use reasonable
efforts to cause such registration statement to be declared effective under the
Securities Act as promptly as practicable after the date of filing of such
registration statement. Any Demand Registration filed pursuant to the request of
Warburg may, subject to the provisions of Section 4.4 below, include other
Common Shares that the Company is required to include in such registration
statement by virtue of existing agreements between the holders of such Common
Shares and the Company (the "Existing Registration Rights").
(b) H&F may at any time following the date hereof and on not
more than five separate occasions in the aggregate and not more frequently than
once during any 180 day period, require the Company to file a registration
statement under the Securities Act in respect of all or a portion of the
Investor Shares then Beneficially Owned by H&F or by any other person that
Beneficially Owns Investor Shares and who acquired such Investor Shares in
connection with such person's status as a partner in any partnership in which
H&F or any of its Affiliates is the general partner (all such Common Shares, the
"H&F Registrable Shares," and together with the Warburg Registrable Shares, the
"Registrable Shares") (provided that such request covers H&F Registrable Shares
with a Market Value on the date of the Demand Request of at least $25 million),
by delivering to the Company a written notice stating that such right is being
exercised, specifying the number of Common Shares to be included in
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such registration (the shares subject to such request, the "H&F Demand Shares")
and describing the intended method of distribution thereof (a "H&F Demand
Request"). Upon receiving a H&F Demand Request, the Company shall (1) provide
written notice of the H&F Demand Request, pursuant to Section 4.3 hereof, to
Warburg and each other Investor, (2) use reasonable efforts to file as promptly
as reasonably practicable a registration statement on such form as the Company
may reasonably deem appropriate providing for the registration of the sale of
such H&F Demand Shares and any other Investor Shares to be included therein
pursuant to Section 4.3 and 4.4 hereof pursuant to the intended method of
distribution, and (3) after the filing of an initial version of the registration
statement, use reasonable efforts to cause such registration statement to be
declared effective under the Securities Act as promptly as practicable after the
date of filing of such registration statement. Any Demand Registration filed
pursuant to the request of H&F may, subject to the provisions of Section 4.4
below, include other Common Shares that the Company is required to include in
such registration statement by virtue of the Existing Registration Rights.
(c) Notwithstanding anything in this Agreement to the
contrary, the Company shall be entitled to postpone and delay, for reasonable
periods of time not to exceed 60 consecutive days and in no event to exceed more
than an aggregate of 90 days during any 360-day period (a "Blackout Period"),
the filing or effectiveness of any Demand Registration if the Board shall
determine that any such filing or the offering of any Registrable Shares would
(1) in the good faith judgment of the Board, impede, delay or otherwise
interfere with any pending or contemplated acquisition, corporate reorganization
or other similar material transaction involving the Company (each, a "Material
Transaction"), (2) based upon advice from the Company's investment banker or
financial advisor, adversely affect any pending or contemplated financing,
offering or sale of any class of securities by the Company, or (3) in the good
faith judgment of the Board, require disclosure of material non-public
information (other than information relating to an event described in clauses
(1) or (2) above) which, if disclosed at such time, would be harmful to the best
interests of the Company and its shareholders. Upon notice by the Company to
each Investor of any such determination, such Investor shall keep the fact of
any such notice strictly confidential, and during any Blackout Period promptly
halt any offer, sale, trading or transfer by it or any of its Subsidiaries of
any Common Shares for the duration of the Blackout Period set forth in such
notice (or until such Blackout Period shall be earlier terminated in writing by
the Company) and promptly halt any use, publication, dissemination or
distribution of the Demand Registration, each prospectus included therein, and
any amendment or supplement thereto by it for the duration of the Blackout
Period set forth in such notice (or until such Blackout Period shall be earlier
terminated in writing by the Company) and, if so directed by the Company, will
deliver to the Company any copies then in its possession of the prospectus
covering such Registrable Shares.
(d) In case a Demand Registration has been filed, if a
Material Transaction has occurred, the Company may cause such Demand
Registration to be withdrawn and its
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effectiveness terminated or may postpone amending or supplementing such Demand
Registration for a reasonable period of time; provided, however, that in no
event shall a Demand Registration so withdrawn by the Company count for the
purposes of determining the number of Demand Registrations to which either
Warburg or H&F is entitled under Section 4.1(a) or (b).
(e) In connection with any underwritten offering under this
Section 4.1, the managing underwriter for such Demand Registration shall be
jointly selected by Warburg and H&F, provided that such managing underwriter
shall be a nationally recognized investment banking firm.
(f) Nothing in this Article IV shall affect or supersede any
of the transfer restrictions set forth in Article V hereof or any of the other
provisions of this Agreement.
Section 4.2 Shelf Registration. At the request of either
Warburg or H&F, the Company shall use reasonable best efforts to file a
registration statement on Form S-3, or any successor form thereto, covering the
offering of Investor Shares by all Investors (subject to the provisions of
Section 5.2 hereof) on a delayed or continuous basis (the "Shelf Registration
Statement") to be effective as soon as reasonably practicable following the
Closing Date. Upon effectiveness of the Shelf Registration Statement, the
Company will use its reasonable best efforts to keep the Shelf Registration
Statement effective with the SEC until such time the Investor Shares held by all
Investors are freely tradable under Rule 144(k) under the Securities Act.
Notwithstanding the foregoing, the Company may suspend the effectiveness of the
Shelf Registration Statement during any Blackout Period.
Section 4.3 Piggy-Back Registration. If, at any time following
the date hereof, the Company proposes to register any Common Shares under the
Securities Act on its behalf or on behalf of any of its shareholders (including
pursuant to a Demand Registration), on a form and in a manner that would permit
registration of Common Shares (other than in connection with dividend
reinvestment plans, rights offerings or a registration statement on Form S-4 or
S-8 or any similar successor form), the Company shall give reasonably prompt
written notice to each Investor of its intention to do so. Upon the written
election of any Investor (a "Piggy-Back Request"), given within ten Business
Days following the receipt by such Investor of any such written notice (which
election shall specify the number of the Investor Shares intended to be disposed
of by such Investor), the Company shall include in such registration statement
(a "Piggy-Back Registration"), subject to the provisions of Section 4.4 hereof,
such number of the Investor Shares as shall be set forth in such Piggy-Back
Request.
Section 4.4 Allocation of Shares to be Registered. In the
event that the Company proposes to register Common Shares in connection with an
underwritten offering and a nationally recognized investment banking firm
selected by the Company, or in the case of a Demand Registration selected by
Warburg and H&F, to act as managing underwriter
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thereof reasonably and in good faith shall have advised the Company and each
Investor in writing that, in its opinion, the inclusion in the registration
statement of some or all of the Investor Shares sought to be registered in a
Piggy-Back Request would adversely affect the price or success of the offering,
the Company shall include in such registration statement such number of Common
Shares as the Company is advised can be sold in such offering without such an
effect (the "Maximum Number") as follows and in the following order of priority:
(a) first, if such registration is not in connection with a Demand Registration,
such number of Common Shares, if any, as the Company intended to be registered
by the Company for its own account, or to be registered pursuant to Existing
Registration Rights, to the extent such Existing Registration Rights so require;
(b) second, if and to the extent that the number of Common Shares to be
registered under clause (a) is less than the Maximum Number (or because the
registration is a Demand Registration, in which case the Company is not
permitted to offer Common Shares), such number of Investor Shares as Warburg,
H&F, Trident, Farallon and GE (and, to the extent required by any Existing
Registration Rights, any other holder of Common Shares having such rights) shall
have intended to register which, when added to the number of Common Shares to be
registered under clause (a), is less than or equal to the Maximum Number, it
being understood that the number of shares included by Warburg, H&F, Trident,
Farallon and GE (and such other holders under Existing Registration Rights)
shall be cut back, if necessary, in proportion to their relative ownership at
the time; and (c) third, if and to the extent that the number of Common Shares
to be registered under clause (b) is less than the Maximum Number, such number
of Investor Shares as the Participating Investors (other than Warburg, H&F,
Trident, Farallon and GE (and such other holders under Existing Registration
Rights)) shall have intended to register which, when added to the number of
Common Shares to be registered under clauses (a) and (b), is less than or equal
to the Maximum Number, it being understood that the number of shares included by
the Participating Investors (other than Warburg, H&F, Trident, Farallon and GE
(and such other holders under Existing Registration Rights)) shall be cut back,
if necessary, in proportion to their relative ownership.
Section 4.5 Registration Procedures. (a) In connection with
each registration statement prepared pursuant to this Article IV, and in
accordance with the intended method or methods of distribution of the Investor
Shares as described in such registration statement, the Company shall, as soon
as reasonably practicable and to the extent practicable:
(1) prepare and file with the SEC a registration statement on
an appropriate registration form and use reasonable efforts to cause
such registration statement to become and remain effective as promptly
as reasonably practicable; provided that before filing a registration
statement or prospectus or any amendments or supplements thereto, the
Company shall furnish to counsel to H&F and Warburg, if disposing of
Registrable Shares under such registration statement, draft copies of
all such documents proposed to be filed at least five days prior to
such filing, which documents
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will be subject to the reasonable review of each of H&F and Warburg,
as appropriate, and its agents and representatives;
(2) furnish without charge to each Investor seeking to dispose
of Investor Shares thereunder (each, a "Participating Investor"), and
the managing underwriter or underwriters, if any, at least one
conformed copy of the registration statement and each post-effective
amendment or supplement thereto (but excluding schedules, all documents
incorporated or deemed incorporated therein by reference and all
exhibits, unless requested in writing by such Participating Investor or
such underwriter) and such number of copies of the summary,
preliminary, final, amended or supplemented prospectuses included in
such registration statement as such Participating Investor or such
underwriter may reasonably request;
(3) except with respect to a Shelf Registration Statement, the
obligations of the Company with respect to the effectiveness thereof to
be governed by Section 4.2, use reasonable best efforts to keep such
registration statement effective for the earlier of (A) 180 days and
(B) such time as all of the securities covered by the registration
statement have been disposed (the "Effective Period"); prepare and file
with the SEC such amendments, post-effective amendments and supplements
to the registration statement and the prospectus as may be necessary to
maintain the effectiveness of the registration for the Effective Period
and to cause the prospectus (and any amendments or supplements thereto)
to be filed;
(4) use reasonable efforts to register or qualify the Investor
Shares covered by such registration statement under such other
securities or "blue sky" laws of such jurisdictions in the United
States as are reasonably necessary, keep such registrations or
qualifications in effect for so long as the registration statement
remains in effect, and do any and all other acts and things which may
be reasonably necessary to enable each Participating Investor or any
underwriter to consummate the disposition of the Investor Shares in
such jurisdictions;
(5) use reasonable efforts to cause the Investor Shares to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable each Participating Investor
to consummate the disposition of the Investor Shares;
(6) use reasonable efforts to cause all Investor Shares
covered by such registration statement to be listed on the Nasdaq or on
the principal securities exchange on which the Common Shares are then
listed;
(7) promptly notify each Participating Investor and the
managing underwriter or underwriters, if any, after becoming aware
thereof, (A) when the registration statement or any related prospectus
or any amendment or supplement
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thereto has been filed, and, with respect to the registration statement
or any post-effective amendment, when the same has become effective,
(B) of any request by the SEC for amendments or supplements to the
registration statement or the related prospectus or for additional
information, (C) of the issuance by the SEC of any stop order
suspending the effectiveness of the registration statement or the
initiation of any proceedings for that purpose, (D) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Investor Shares to be registered for sale in any
jurisdiction or the initiation of any proceeding for such purpose or
(E) within the Effective Period of the happening of any event or the
existence of any fact that makes any statement in the registration
statement or any post-effective amendment thereto, prospectus or any
amendment or supplement thereto, or any document incorporated therein
by reference untrue in any material respect or which requires the
making of any changes in the registration statement or post-effective
amendment thereto or any prospectus or amendment or supplement thereto
so that they 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;
(8) during the Effective Period, use its reasonable efforts to
obtain the withdrawal of any order enjoining or suspending the use or
effectiveness of the registration statement or any post-effective
amendment thereto;
(9) deliver promptly to each of Warburg and H&F, if disposing
of Investor Shares under such registration statement, copies of all
correspondence between the SEC and the Company, its counsel or auditors
and all memoranda relating to discussions with the SEC or its staff
with respect to the registration statement and permit each of Warburg
and H&F, if disposing of Investor Shares under such registration
statement, to do such investigation, with respect to information
contained in or omitted from the registration statement, as it
reasonably deems necessary;
(10) in the case of an underwritten offering, use best efforts
to enter into an underwriting agreement customary in form and scope for
underwritten secondary offerings of the nature contemplated by the
applicable registration statement;
(11) provide a transfer agent and registrar for all such
Investor Shares covered by such registration statement not later than
the effective date of such registration statement, subject to any
applicable laws or regulations; and
(12) cooperate with each Participating Investor and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing such Investor
Shares to be sold under the registration statement; and, in the case of
an underwritten offering, enable such Investor Shares to
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be in such denominations and registered in such names as the managing
underwriter or underwriters, if any, may request in writing at least
two Business Days prior to any sale of the Investor Shares to the
underwriters.
(b) In the event that the Company would be required, pursuant
to Section 4.5(a)(7)(E) above, to notify each Participating Investor or the
managing underwriter or underwriters, if any, of the happening of any event
specified therein, the Company shall, subject to the provisions of Section
4.1(c) hereof, as promptly as practicable, prepare and furnish to each
Participating Investor and to each such underwriter a reasonable number of
copies of a prospectus supplemented or amended so that, as thereafter delivered
to purchasers of Investor Shares that have been registered pursuant to this
Agreement, such prospectus shall not contain 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 the light of the circumstances under which
they were made, not misleading. Each Participating Investor agrees that, upon
receipt of any notice from the Company pursuant to Section 4.5(a)(7)(E) hereof,
it shall, and shall use its reasonable best efforts to cause any sales or
placement agent or agents for the Investor Shares and the underwriters, if any,
to, forthwith discontinue disposition of the Investor Shares until such Person
shall have received copies of such amended or supplemented prospectus and, if so
directed by the Company, to destroy or to deliver to the Company all copies,
other than permanent file copies, then in its possession of the prospectus
(prior to such amendment or supplement) covering such Investor Shares as soon as
practicable after such Participating Investor's receipt of such notice.
(c) Each Participating Investor shall furnish to the Company
in writing its intended method of distribution of the Investor Shares it
proposes to dispose of and such other information as the Company may from time
to time reasonably request in writing, but only to the extent that such
information is required in order for the Company to comply with its obligations
under all applicable securities and other laws and to ensure that the prospectus
relating to such Investor Shares conforms to the applicable requirements of the
Securities Act. Each Participating Investor shall notify the Company as promptly
as practicable of any inaccuracy or change in information previously furnished
by such Participating Investor to the Company or of the occurrence of any event,
in either case as a result of which any prospectus relating to the Investor
Shares contains or would contain 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, in light of the circumstances under which they were
made, not misleading, and promptly furnish to the Company any additional
information required to correct and update any previously furnished information
or required so that such prospectus shall not contain 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 were made, not misleading.
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(d) In the case of any registration under Section 4.1 hereof
pursuant to an underwritten offering, or in the case of a registration under
Section 4.3 hereof if the Company has determined to enter into an underwriting
agreement in connection therewith, all Investor Shares to be included in such
registration shall be subject to the applicable underwriting agreement and no
Person may participate in such registration unless such Person agrees to sell
such Person's securities on the basis provided therein and completes and
executes all questionnaires, indemnities, underwriting agreements and other
documents (other than powers of attorney) which must be executed in connection
therewith, and provides such other information to the Company or the underwriter
as may be reasonably requested to register such Person's Investor Shares.
Section 4.6 Registration Expenses. The Company shall bear all
registration and filing fees, fees and expenses of compliance with securities or
blue sky laws, fees and expenses in connection with the review of underwriting
arrangements by the NASD Regulation, Inc. (including the fees of any "qualified
independent underwriter"), agent fees and commissions, printing costs and fees
and disbursements of its counsel, and of one counsel as may be reasonably
selected by Warburg and H&F on behalf of the Participating Investors, and
accountants, in each case, in connection with any registration and listing of
any Investor Shares pursuant to Section 4.1, 4.2 or 4.3, other than underwriting
discounts or commissions in connection with the Investor Shares disposed of by
any Participating Investor, which shall be borne by such Participating Investor.
Section 4.7 Indemnification; Contribution. (a) The Company
shall, and it hereby agrees to, indemnify and hold harmless each Participating
Investor and its partners, members, officers, directors, employees and
controlling Persons, if any, and each underwriter, its partners, officers,
directors, employees and controlling Persons, if any, in any offering or sale of
Common Shares, against any losses, claims, damages or liabilities to which each
such indemnified party may become subject, insofar as such losses, claims,
damages or liabilities, or actions or proceedings in respect thereof, including
any amounts paid in settlement as provided herein (collectively, "Claims"),
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any registration statement, or any preliminary
or final prospectus contained therein, or any amendment or supplement thereto,
or any document incorporated by reference therein, or arise out of or are based
upon any omission or alleged 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, and the Company
shall, and it hereby agrees to, reimburse each Participating Investor or any
such underwriter for any legal or other out-of-pocket expenses reasonably
incurred by it in connection with investigating or defending any such Claims;
provided, however, that the Company shall not be liable to any such Person in
any such case to the extent that any such Claims arise out of or are based upon
an untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement, or preliminary or final prospectus, or
amendment or supplement thereto, in reliance upon and
-23-
in conformity with information furnished in writing to the Company by such
Participating Investor or any underwriter expressly for use therein.
(b) Each Participating Investor shall, and hereby agrees to
(1) indemnify and hold harmless the Company, its directors, officers, employees
and controlling Persons, if any, and each underwriter, its partners, officers,
directors, employees and controlling Persons, if any, in any offering or sale of
Common Shares, against any Claims to which each such indemnified party may
become subject, insofar as such Claims arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in such
registration statement, or any preliminary or final prospectus contained
therein, or any amendment or supplement thereto, or any document incorporated by
reference therein, or arise out of or are based upon 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, in each case only to
the extent that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Participating Investor expressly
for use therein, and (2) reimburse the Company for any legal or other
out-of-pocket expenses reasonably incurred by the Company in connection with
investigating or defending any such Claim.
(c) Promptly after receipt by an indemnified party under
Section 4.7(a) or Section 4.7(b) of written notice of the commencement of any
action or proceeding for which indemnification under Section 4.7(a) or Section
4.7(b) may be requested, such indemnified party shall notify the indemnifying
party in writing of the commencement of such action or proceeding, but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party in respect of such action
or proceeding hereunder unless the indemnifying party was materially prejudiced
by such failure of the indemnified party to give such notice, and in no event
shall such omission relieve the indemnifying party from any other liability it
may have to such indemnified party. In case any such action or proceeding shall
be brought against any indemnified party and it shall notify an indemnifying
party of the commencement thereof, such indemnifying party shall be entitled to
participate therein and, to the extent that it shall determine, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party, and, after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, such indemnifying party shall not be liable to such
indemnified party for any legal or any other expenses subsequently incurred by
such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. If the indemnifying party is not entitled to,
or elects not to, assume the defense of a claim, it will not be obligated to pay
the fees and expenses of more than one counsel for each indemnified party with
respect to such claim. The indemnifying party will not be subject to any
liability for any settlement made without its consent, which consent shall not
be unreasonably withheld or delayed. No indemnifying party shall, without the
prior written consent of the indemnified party, compromise or consent to entry
of any
-24-
judgment or enter into any settlement agreement with respect to any action or
proceeding in respect of which indemnification is sought under Section 4.7(a) or
Section 4.7(b) (whether or not the indemnified party is an actual or potential
party thereto), unless such compromise, consent or settlement includes an
unconditional release of the indemnified party from all liability in respect of
such claim or litigation and does not subject the indemnified party to any
material injunctive relief or other material equitable remedy.
(d) Each Participating Investor and the Company agree that if,
for any reason, the indemnification provisions contemplated by Sections 4.7(a)
or 4.7(b) hereof are unavailable to or are insufficient to hold harmless an
indemnified party in respect of any Claims referred to therein (other than as a
result of the provisos thereto), then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of such
Claims in such proportion as is appropriate to reflect the relative fault of and
benefits derived by the indemnifying party, on the one hand, and the indemnified
party, on the other hand, as well as other equitable considerations. The amount
paid or payable by an indemnified party as a result of the Claims referred to
above shall be deemed to include (subject to the limitations set forth in
Section 4.7(c) hereof) any legal or other fees or expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action, proceeding or claim. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
ARTICLE V
TAG-ALONG RIGHTS; DRAG-ALONG RIGHTS; RESTRICTIONS ON TRANSFER AND CONVERSION
Section 5.1 Tag-Along Rights; Drag-Along Rights. (a) In the
event that Warburg, H&F or GE proposes to sell, convey, dispose or otherwise
transfer Initial Shares (such party proposing to sell, the "Selling Investor")
in a bona fide transaction to an un-Affiliated third party, or in a series of
related bona fide transactions to multiple un-Affiliated third parties, and the
net proceeds of such sale are reasonably expected to exceed $50 million (such a
transaction, or series of related transactions, a "Third Party Sale"), such
Selling Investor shall notify the other Investors having rights under this
Section 5.1 (each such other Investor, a "Tag-Along Investor") in writing of
such Third Party Sale, which notice shall set forth the material terms of such
Third Party Sale, including, without limitation, the number of Initial Shares
proposed to be sold and the per share price thereof (the "Third Party Sale
Notice"). Such Tag-Along Investor shall have the right, but not the obligation,
to participate in such Third Party Sale with respect to Initial Shares upon
providing the Selling Investor written notice of intent to exercise such right
within ten Business Days of the receipt of Third Party Sale Notice; provided,
however, that (i) GE shall have such rights only (A) if Warburg is the Selling
Investor, or (B) if H&F is the Selling Investor and Warburg shall have exercised
-25-
its rights to become at Tag-Along Investor under this Section 5.1, and (ii)
Farallon shall have such rights only (A) if H&F is the Selling Investor, or (B)
if Warburg is the Selling Investor and H&F shall have exercised its rights to
become a Tag-Along Investor under this Section 5.1. Such notice shall set forth
the number of Initial Shares that such Tag-Along Investor desires to sell in
such Third Party Sale, which such number shall not exceed that number of Initial
Shares equal to the product of (i) the number of Initial Shares set forth in the
Third Party Sale Notice, and (ii) the quotient of (A) the Retained Investment of
such Tag-Along Investor, over (B) the sum of (I) the Retained Investment of the
Selling Investor, and (II) the Retained Investment of all Tag-Along Investors.
Notwithstanding the foregoing, this Section 5.1 shall not be applicable to any
sale effected in the public markets (including by means of a "block trade"
effected through any registered broker-dealer), or to any distribution to
partners of any partnership in which either Warburg or H&F, or any of their
respective Affiliates, is the general partner.
(b) In the event that Warburg or H&F proposes to become a
Selling Investor under Section 5.1(a), Trident shall have the rights of a
Tag-Along Investor under Section 5.1(a).
(c) In the event that Warburg and/or H&F proposes to sell,
convey, dispose or otherwise transfer Initial Shares representing either 51% of
the votes then entitled to be cast in the election of directors, or 51% of the
then outstanding Common Shares (taking into account Common Shares issuable upon
conversion of the Preference Shares) in a transaction, or in a series of related
transactions, to a single Person or group, Warburg and H&F shall have the right
to require that Trident, and Trident shall have the obligation to, participate
in such transaction, up to a number of Initial Shares then Beneficially Owned by
Trident that shall not exceed that number of Initial Shares equal to the product
of (i) the number of Initial Shares proposed to be transferred, and (ii) the
quotient of (A) the Retained Investment of Trident, over (B) the sum of (I) the
Retained Investment of Warburg and H&F, and (II) the Retained Investment of
Trident and all other Investors participating in such sale.
(d) No Tag-Along Investor under this Sections 5.1 shall be
required to assume any responsibility for any indemnification obligations
arising under such Third Party Sale in excess of the proportion of the number of
Initial Shares sold by such party to the total number of Initial Shares sold in
such Third Party Sale; provided, however, that the limitation provided in this
Section 5.1(d) shall not be applicable to any indemnification obligations
resulting from representations or warranties specifically relating to, and made
by or on behalf of, such party.
Section 5.2 Restrictions on Transfer. Until the earliest to
occur of (a) the first anniversary of the Closing, (b) the occurrence of any
event that would cause Company's outstanding Class B Warrants to vest and/or
become exercisable, or (c) the completion by the Company of a registered public
offering of Common Shares the net proceeds to the Company
-26-
of which exceed $25 million, each of Warburg, H&F, Farallon, GE and Trident, and
each Management Purchaser, agrees that it or he will not sell, dispose, convey
or otherwise transfer any of such Investor's Initial Shares if, following the
consummation of such sale, the Retained Percentage of such Investor would be
less that 66%; provided, however, that GE and Farallon shall have the right to
sell, dispose, convey or otherwise transfer Initial Shares to any GE Permitted
Transferee or any Farallon Permitted Transferee, respectively; provided,
further, that such GE Permitted Transferee or such Farallon Permitted
Transferee, as the case may be, shall become a party hereto and agree to be
bound by the terms hereof. Following the earliest to occur of clauses (a), (b)
or (c) in the preceding sentence, there shall be no restrictions on transfer of
any Initial Shares, except as may be imposed by applicable law, including by the
Securities Act. Nothing in this Section 5.2 shall be deemed to affect any
disposition of Initial Shares pursuant to the terms of any merger, consolidation
or other business combination transaction, or to the tender of any Initial
Shares into any tender or exchange offer, provided, that such merger,
consolidation or other business combination has been approved by, or such tender
or exchange offer has been recommended to, the shareholders of the Company by,
the Board.
Section 5.3 Restrictions on Conversion. Prior to the receipt
of the Requisite Shareholder Approval, no Investor shall convert any Preference
Share or exercise any Class A Warrant, if the number of Common Shares to be
issued to such Investor upon such conversion or exercise, together with all
Common Shares issued upon prior conversions or exercise by such holder, would
exceed such Investor's Permissible Conversion Amount. An Investor's "Permissible
Conversion Amount" shall be a number of Common Shares equal to the product of
(a) the total number of Common Shares issuable to such Investor upon conversion
or exercise of all such Investor's Initial Shares, and (b) a fraction the
numerator of which is (i) .199 times the total number of Common Shares issued
and outstanding on November 19, 2001 and the denominator of which is (ii) the
total number of Common Shares issuable upon conversion or exercise of all
Initial Shares plus the number of Common Shares issued on November 20, 2001.
Prior to the Receipt of the Requisite Shareholder Approval, each holder of
Preference Shares and Class A Warrants issued under the Subscription Agreement
or the Management Subscription Agreement shall require any transferee of
Preference Shares or Class A Warrants to agree to this restriction, such that it
applies to such transferee as if such transferee had acquired such securities at
Closing, and attributing to such transferee a pro rata portion of any conversion
or exercise by the transferor, prior to such transfer. Prior to receipt of the
Requisite Regulatory Approval, no Investor shall convert any Preference Shares
into Common Shares or exercise any Class A Warrants unless all necessary
approvals for such ownership of Common Shares have been obtained, it being
understood that, subject to Section 5.2 hereof, this restriction on conversion
and exercise shall not restrict an Investor from converting or exercising and
selling, or otherwise disposing of, the shares received on conversion or
exercise in such a manner as would not result in violation of any applicable
regulation. GE shall not convert any Preference Shares, or exercise any Class A
Warrant, until such time as any required waiting period, including extensions
thereof, under the Xxxx
-27-
-
Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, shall have expired
or been terminated.
ARTICLE VI
RESTRICTIONS ON DIVIDENDS AND SHARE REPURCHASES
The Company shall not declare any dividend or make any other
distribution on, or in respect of, any Common Shares, and shall not repurchase
any Common Shares, until such time as the Company has repurchased from Warburg
and H&F, in proportion to their respective Retained Investments at the time of
such repurchase, Initial Shares having an aggregate value of $250 million, at a
per share price acceptable to Warburg and H&F.
ARTICLE VII
EFFECTIVENESS AND TERMINATION
Section 7.1 Effectiveness. This Agreement shall take effect
immediately upon the Closing and shall remain in effect until it is terminated
pursuant to Section 7.2 hereof.
Section 7.2 Termination. Other than with respect to Article IV
hereof and with respect to the termination provisions specifically elsewhere set
forth in this Agreement as may be applicable to any particular Section of this
Agreement, this Agreement shall terminate upon the earliest to occur of the
following:
(a) the tenth anniversary of the Closing; or
(b) mutual written agreement of the Company, Warburg and H&F
at any time to terminate this Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Injunctive Relief. Each party hereto acknowledges
that it would be impossible to determine the amount of damages that would result
from any breach of any of the provisions of this Agreement and that the remedy
at law for any breach, or threatened breach, of any of such provisions would
likely be inadequate and, accordingly, agrees that each other party shall, in
addition to any other rights or remedies which it may have, be entitled to seek
such equitable and injunctive relief as may be available from any court of
competent jurisdiction to compel specific performance of, or restrain any party
from violating, any of such provisions. In connection with any action or
proceeding for injunctive relief, each
-28-
party hereto hereby waives the claim or defense that a remedy at law alone is
adequate and agrees, to the maximum extent permitted by law, to have each
provision of this Agreement specifically enforced against it, without the
necessity of posting bond or other security against it, and consents to the
entry of injunctive relief against it enjoining or restraining any breach or
threatened breach of such provisions of this Agreement.
Section 8.2 Successors and Assigns. This Agreement shall be
binding upon, and shall inure to the benefit of and be enforceable by the
Company, Warburg and H&F, and for the purposes of such provisions hereof as may
be indicated immediately above the signatures of Farallon, GE, Trident and each
Management Purchaser, and their respective successors and permitted assigns, and
no such term or provision is for the benefit of, or intended to create any
obligations to, any other Person, except as otherwise specifically provided in
this Agreement. Neither this Agreement nor any rights or obligations hereunder
shall be assignable without the consent of each other party; provided, however,
that in connection with any sale or transfer by Warburg or H&F of any Investor
Shares, the transferee of such Investor Shares may become a party hereto solely
for purposes of Article IV and Sections 3.4, 5.2 and 5.3 hereof and have the
rights of, and be subject to the obligations of, an "Investor" upon due
execution and delivery of a counterpart signature page hereto. Notwithstanding
the foregoing, GE or Farallon may assign its rights hereunder to any GE
Permitted Transferee or any Farallon Permitted Transferee, respectively,
provided such GE Permitted Transferee or Farallon Permitted Transferee, as the
case may be, becomes a party hereto and agrees to be bound by the terms hereof.
Section 8.3 Amendments; Waiver. This Agreement may be amended
only by an agreement in writing executed by the parties hereto. Any party may
waive in whole or in part any benefit or right provided to it under this
Agreement, such waiver being effective only if contained in a writing executed
by the waiving party. No failure by any party to insist upon the strict
performance of any covenant, duty, agreement or condition of this Agreement or
to exercise any right or remedy consequent upon breach thereof shall constitute
a waiver of any such breach or of any other covenant, duty, agreement or
condition, nor shall any delay or omission of any party to exercise any right
hereunder in any manner impair the exercise of any such right accruing to it
thereafter.
Section 8.4 Notices. Except as otherwise provided in this
Agreement, all notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, when delivered personally or by facsimile
transmission if promptly electronically confirmed, as follows, or as set forth
on the signature page executed by the any Investor:
-29-
If to Company:
Arch Capital Group, Ltd.
00 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to Warburg:
c/o Warburg, Xxxxxx Equity Partners, L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
-30-
If to H&F:
c/x Xxxxxxx & Xxxxxxxx LLC
Xxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
or to such other address, facsimile number or telephone as either party may,
from time to time, designate in a written notice given in a like manner.
Section 8.5 Applicable Law. Except to the extent of the
applicability of the Companies Law of Bermuda to this Agreement, this Agreement
shall be governed by and construed in accordance with the laws of the State of
New York with regard to contracts formed and to be entirely performed within
such state without giving effect to principles of conflicts of law.
Section 8.6 Headings. The descriptive headings of the several
sections in this Agreement are for convenience only and do not constitute a part
of this Agreement and shall not be deemed to limit or affect in any way the
meaning or interpretation of this Agreement. References to "Sections" and
"Articles" herein shall be to the Sections or Articles of this Agreement, unless
the context requires otherwise.
Section 8.7 Integration. This Agreement and the other writings
referred to herein or delivered pursuant hereto which form a part hereof contain
the entire understanding of the parties with respect to its subject matter. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to its subject matter.
Section 8.8 Severability. If any term or provision of this
Agreement or any application thereof shall be declared or held invalid, illegal
or unenforceable, in whole or in part, whether generally or in any particular
jurisdiction, such provision shall be deemed amended to the extent, but only to
the extent, necessary to cure such invalidity, illegality or unenforceability,
and the validity, legality and enforceability of the remaining provisions,
-31-
both generally and in every other jurisdiction, shall not in any way be affected
or impaired thereby.
Section 8.9 Consent to Jurisdiction. In connection with any
suit, claim, action or proceeding arising out of this Agreement, the parties
each hereby consent to the in personam jurisdiction of the United States federal
courts and state courts located in the Borough of Manhattan, City of New York,
State of New York; the Company, Warburg and H&F each agree that service in the
manner set forth in Section 8.4 hereof shall be valid and sufficient for all
purposes; and the parties each agree to, and irrevocably waive any objection
based on forum non conveniens or venue, appear in any United States federal
court or state court located in the Borough of Manhattan, City of New York,
State of New York.
Section 8.10 Counterparts. This Agreement may be executed by
the parties hereto in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
-32-
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed by their respective authorized officers as of the date set
forth at the head of this Agreement.
ARCH CAPITAL GROUP, LTD.
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary
HFCP IV (BERMUDA), L.P.
By: H&F Investors IV (Bermuda), L.P., its
General Partner,
By: H&F Corporate Investors IV (Bermuda) Ltd.,
its General Partner
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
H&F INTERNATIONAL PARTNERS
IV-A (BERMUDA), L.P.
By: H&F Investors IV (Bermuda), L.P., its
General Partner,
By: H&F Corporate Investors IV (Bermuda) Ltd.,
its General Partner
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
-33-
H&F INTERNATIONAL PARTNERS
IV-B (BERMUDA), L.P.
By: H&F Investors IV (Bermuda), L.P., its
General Partner,
By: H&F Corporate Investors IV (Bermuda) Ltd.,
its General Partner
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
H&F EXECUTIVE FUND IV
(BERMUDA), L.P.
By: H&F Investors IV (Bermuda), L.P., its
General Partner,
By: H&F Corporate Investors IV (Bermuda) Ltd.,
its General Partner
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
-00-
XXXXXXX XXXXXX XXXXXXXXXXX
INTERNATIONAL PARTNERS I, C.V.
By: Warburg, Xxxxxx & Co.,
its General Partner,
By: /s/ Xxxxxxx Xxx
-----------------------------------------
Name: Xxxxxxx Xxx
Title: Partner
WARBURG PINCUS NETHERLANDS
INTERNATIONAL PARTNERS II, C.V.
By: Warburg, Xxxxxx & Co.,
its General Partner,
By: /s/ Xxxxxxx Xxx
-----------------------------------------
Name: Xxxxxxx Xxx
Title: Partner
WARBURG PINCUS (BERMUDA) INTERNATIONAL
PARTNERS, L.P.
By: Warburg Pincus (Bermuda) International Ltd.,
its General Partner,
By: /s/ Xxxxxxx Xxx
-----------------------------------------
Name: Xxxxxxx Xxx
Title: Partner
-35-
WARBURG PINCUS (BERMUDA) PRIVATE
EQUITY VIII, L.P.
By: Warburg Pincus (Bermuda)
Private Equity Ltd.,
its General Partner,
By: /s/ Xxxxxxx Xxx
------------------------------------------
Name: Xxxxxxx Xxx
Title: Partner
-36-
For purposes of Articles II, IV and V and
Section 3.4 hereof:
TRIDENT II, L.P.
By: MMC Capital, Inc.,
as Manager
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Principal
Notice Information for Trident II, L.P.:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
Attention: Xxxx Xxxxxxx
Facsimile: (000) 000-0000
and
c/x Xxxxx & McLennan Capital, Inc.
00 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
-37-
For purposes of Articles II, IV and V and
Section 3.4 hereof:
XXXXX & MCLENNAN CAPITAL
PROFESSIONALS FUND, L.P.
By: MMC Capital, Inc.,
as Manager
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Principal
Notice Information for Xxxxx & XxXxxxxx
Capital Professionals Fund, L.P.:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
Attention: Xxxx Xxxxxxx
Facsimile: (000) 000-0000
and
c/x Xxxxx & XxXxxxxx Capital, Inc.
00 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
-38-
For purposes of Articles II, IV and V and
Section 3.4 hereof:
XXXXX & MCLENNAN EMPLOYEES'
SECURITIES COMPANY, L.P.
By: MMC Capital, Inc.,
as Manager
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Principal
Notice Information for Xxxxx & XxXxxxxx
Employees' Securities Company, L.P.:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
Attention: Xxxx Xxxxxxx
Facsimile: (000) 000-0000
and
c/x Xxxxx & XxXxxxxx Capital, Inc.
00 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
-39-
For purposes of Articles II, IV and V and
Section 3.4 hereof:
FARALLON CAPITAL PARTNERS, L.P.
By: Farallon Partners, L.L.C.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Member
Notice Information for Farallon Capital
Partners, L.P.:
x/x Xxxxxxxx Xxxxxxx Xxxxxxxxxx, X.X.X.
Xxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx and
Xxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-40-
For purposes of Articles II, IV and V and
Section 3.4 hereof:
FARALLON CAPITAL INSTITUTIONAL
PARTNERS II, L.P.
By: Farallon Partners, L.L.C.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Member
Notice Information for Farallon Capital
Institutional Partners II, L.P.:
x/x Xxxxxxxx Xxxxxxx Xxxxxxxxxx, X.X.X.
Xxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx and
Xxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-41-
For purposes of Articles II, IV and V and
Section 3.4 hereof:
FARALLON CAPITAL INSTITUTIONAL
PARTNERS III, L.P.
By: Farallon Partners, L.L.C.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Member
Notice Information for Farallon Capital
Institutional Partners III, L.P.:
x/x Xxxxxxxx Xxxxxxx Xxxxxxxxxx, X.X.X.
Xxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx and
Xxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-42-
For purposes of Articles II, IV and V and
Section 3.4 hereof:
RR CAPITAL PARTNERS, L.P.
By: Farallon Partners, L.L.C.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Member
Notice Information for RR Capital
Partners, L.P.:
x/x Xxxxxxxx Xxxxxxx Xxxxxxxxxx, X.X.X.
Xxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx and
Xxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-43-
For purposes of Articles II, IV and V and
Section 3.4 hereof:
INSURANCE PRIVATE EQUITY
INVESTORS, L.L.C.
By: GE Asset Management Incorporated,
its Manager,
By: /s/ Xxxxxxx XxXxxxx
---------------------------------------
Name: Xxxxxxx XxXxxxx
Title: Vice President
Notice Information for Insurance Private
Equity Investors, L.L.C.:
c/o GE Asset Management Incorporated
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
For purposes of Articles II, IV and V and
Section 3.4 hereof:
ORBITAL HOLDINGS, LTD.
By: /s/ Xxxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Attorney-in-fact
Notice Information for Orbital
Holdings, Ltd.:
c/o GE Capital
000 Xxxxxxxxx Xx.
Xxxxxxxx, XX 00000
-44-
For purposes of Articles IV and
Sections 3.4, 5.2 and 5.3 hereof:
SOUND VIEW PARTNERS LP
By: Xxxxxx Xxxxxxxx,
its General Partner
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: General Partner
Notice Information for Sound View
Partners, LP:
-45-
For purposes of Articles IV and
Sections 3.4, 5.2 and 5.3 hereof:
OTTER CAPITAL LLC
By: Xxxx Xxxxxxxx,
its Managing Member
By: /s/ Xxxx Xxxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxxx
Title: Managing Member
Notice Information for Otter Capital LLC:
-46-
For purposes of Articles IV and
Sections 3.4, 5.2 and 5.3 hereof:
XXXXX X. XXXXX
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
Notice Information for Xxxxx X. Xxxxx:
-47-
For purposes of Articles IV and
Sections 3.4, 5.2 and 5.3 hereof:
XXXX X. XXXXXX
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Notice Information for Xxxx X. Xxxxxx:
-48-
For purposes of Articles IV and
Sections 3.4, 5.2 and 5.3 hereof:
XXXXXX X. XXXXX
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Notice Information for Xxxxxx X. Xxxxx:
-49-
For purposes of Articles IV and
Sections 3.4, 5.2 and 5.3 hereof:
MARC GRANDISSON
By: /s/ Marc Grandisson
---------------------------------------
Name: Marc Grandisson
Notice Information Marc Grandisson:
-50-
