EXHIBIT 4.6
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REGISTRATION RIGHTS AGREEMENT
BETWEEN
SCOTTISH ANNUITY & LIFE HOLDINGS, LTD.
AND
BEAR, XXXXXXX & CO. INC.
AND
XXXXXX XXXXXX SECURITIES INC.
DATED AS OF NOVEMBER 22, 2002
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This REGISTRATION RIGHTS AGREEMENT, dated as of November 22, 2002, is
between SCOTTISH ANNUITY & LIFE HOLDINGS, LTD., a Cayman Islands exempted
company (together with any successor entity, herein referred to as the
"ISSUER"), and BEAR, XXXXXXX & CO. INC. and Xxxxxx Xxxxxx Securities Inc.
(together, the "INITIAL PURCHASERS").
Pursuant to the Purchase Agreement, dated November 18, 2002, between the
Issuer and the Initial Purchasers (the "Purchase Agreement"), the Initial
Purchasers have agreed to purchase from the Issuer $100,000,000 aggregate
principal amount of 4.50% Senior Convertible Notes due 2022 (the "Firm Notes")
and have the option to purchase, solely for the purpose of covering
over-allotments in connection with the sale of the Firm Notes, up to an
additional $15,000,000 aggregate principal amount of the Issuer's 4.50% Senior
Convertible Notes due 2022 (the "Optional Notes"; and together with the Firm
Notes, the "Convertible Notes"). The Convertible Notes will be convertible into
fully paid, nonassessable ordinary shares, par value US$.01 per share, of the
Issuer (the "Ordinary Shares") on the terms, and subject to the conditions, set
forth in the Indenture (as defined herein). To induce the Initial Purchasers to
purchase the Convertible Notes, and in satisfaction of a condition to the
Initial Purchasers' obligations under the Purchase Agreement, the Issuer has
agreed to provide the registration rights set forth in this Agreement.
The parties hereby agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following capitalized terms shall have
the following meanings:
"ADDITIONAL AMOUNTS": As defined in Section 3(a) hereof.
"ADDITIONAL AMOUNTS PAYMENT DATE": Each interest payment date with respect
to the Convertible Notes.
"ADVICE": As defined in Section 4(c)(ii) hereof.
"AFFILIATE": With respect to any specified Person, means an "AFFILIATE," as
defined in Rule 144 under the Securities Act, of such Person.
"AGREEMENT": This Registration Rights Agreement.
"BLUE SKY APPLICATION": As defined in Section 6(a)(i) hereof.
"BROKER-DEALER": Any broker or dealer registered under the Exchange Act.
"BUSINESS DAY": Each day of the year other than a Saturday or Sunday or
other day on which banking institutions in the City of New York are required or
authorized by law or regulation to close.
"CLOSING DATE": The date of this Agreement.
"COMMISSION": The United States Securities and Exchange Commission.
"CONTROL": With respect to a Person, the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ability to exercise voting power,
by contract or otherwise.
"CONVERSION PRICE": As defined in Section 1.1 of the Indenture.
"CONVERTIBLE NOTES": As defined in the preamble hereto.
"EFFECTIVENESS PERIOD": As defined in Section 2(a)(iii) hereof.
"EFFECTIVENESS TARGET DATE": As defined in Section 2(a)(ii) hereof.
"EXCHANGE ACT": The Securities Exchange Act of 1934, as amended.
"HOLDER": A Person who owns, beneficially or otherwise, Registrable
Securities.
"INDEMNIFIED HOLDER": As defined in Section 6(a) hereof.
"INDENTURE": The Indenture, dated as of November 22, 2002, between the
Issuer and The Bank of New York, as trustee (the "TRUSTEE"), pursuant to which
the Convertible Notes are to be issued, as such Indenture is amended, modified
or supplemented from time to time in accordance with the terms thereof.
"INITIAL PURCHASERS": As defined in the preamble hereto.
"ISSUER": As defined in the preamble hereto.
"MAJORITY OF HOLDERS": Holders holding more than 50% of the aggregate
principal amount of Convertible Notes outstanding; provided that, for purpose of
this definition, a Holder of Ordinary Shares that constitute Registrable
Securities and issued upon conversion of the Convertible Notes shall be deemed
to hold an aggregate principal amount of Convertible Notes (in addition to the
principal amount of Convertible Notes held by such Holder) equal to the product
of (x) the number of such Ordinary Shares held by such Holder and (y) the
Conversion Price in effect at the time of such conversion as determined in
accordance with the Indenture.
"NASD": National Association of Securities Dealers, Inc.
"ORDINARY SHARES": As defined in the preamble hereto.
"PERSON": An individual, partnership, corporation, unincorporated
organization, trust, joint venture or a government or agency or political
subdivision thereof.
"PROSPECTUS": The prospectus included in a Shelf Registration Statement, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
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"QUESTIONNAIRE DEADLINE": As defined in Section 2(b) hereof.
"RECORD HOLDER": With respect to any Additional Amounts Payment Date, each
Person who is a Holder on the record date with respect to the interest payment
date on which such Additional Amounts Payment Date shall occur. In the case of a
Holder of Ordinary Shares issued upon conversion of the Convertible Notes,
"RECORD HOLDER" shall mean each Person who is a Holder of Ordinary Shares that
constitute Registrable Securities on the May 15 or November 15 immediately
preceding the Additional Amounts Payment Date.
"REGISTRABLE SECURITIES": Each Convertible Note and each Ordinary Share
issued upon conversion of Convertible Notes until, in the case of any such
security, (A) the earliest of (i) its effective registration under the
Securities Act and resale in accordance with the Registration Statement covering
it, (ii) expiration of the holding period that would be applicable thereto under
Rule 144(k) under the Securities Act were it not held by an Affiliate of the
Issuer or (iii) its sale to the public pursuant to Rule 144 under the Securities
Act, and (B) as a result of the event or circumstance described in any of the
foregoing clauses (i) through (iii), the legends with respect to transfer
restrictions required under the Indenture are removed or removable in accordance
with the terms of the Indenture or such legend, as the case may be.
"REGISTRATION DEFAULT": As defined in Section 3(a) hereof.
"REGISTRATION STATEMENT": Means any registration statement of the Issuer
that covers any of the Registrable Securities pursuant to the provisions of this
Agreement including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all materials incorporated by reference or explicitly deemed to be incorporated
by reference in such registration statement.
"SALE NOTICE": As defined in Section 4(e) hereof.
"SECURITIES ACT": The Securities Act of 1933, as amended.
"SHELF FILING DEADLINE": As defined in Section 2(a)(i) hereof.
"SHELF REGISTRATION STATEMENT": As defined in Section 2(a)(i) hereof.
"SUSPENSION PERIOD": As defined in Section 4(b)(i) hereof.
"TIA": The Trust Indenture Act of 1939, as in effect on the date the
Indenture is qualified under that act.
"UNDERWRITING MAJORITY": On any date, Holders holding at least 66 2/3% of
the aggregate principal amount of the Registrable Securities outstanding on such
date; PROVIDED, that for the purpose of this definition, a holder of Ordinary
Shares that constitute Registrable Securities and issued upon conversion of
Convertible Notes shall be deemed to hold an aggregate principal amount of
Registrable Securities (in addition to the principal amount of Convertible Notes
held by such holder) equal to (x) the number of such Ordinary Shares that are
Registrable Securities held by such holder multiplied by (y) the Conversion
Price in effect at the time of such conversion as determined in accordance with
the Indenture.
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"UNDERWRITTEN REGISTRATION" or "UNDERWRITTEN OFFERING": A registration in
which securities of the Issuer are sold to an underwriter for reoffering to the
public.
2. SHELF REGISTRATION.
(a) The Issuer shall:
(i) not later than 90 days after the date hereof (the "SHELF
FILING DEADLINE"), cause to be filed a registration statement pursuant to
Rule 415 under the Securities Act (the "SHELF REGISTRATION STATEMENT"),
which Shelf Registration Statement shall provide for resales of all
Registrable Securities held by Holders that have provided the information
required pursuant to the terms of Section 2(b) hereof;
(ii) use its reasonable best efforts to cause the Shelf
Registration Statement to be declared effective by the Commission as
promptly as is practicable, but in no event later than 180 days after the
date hereof (the "EFFECTIVENESS TARGET DATE"); and
(iii) subject to Section 4(b)(i) hereof, use its reasonable
best efforts to keep the Shelf Registration Statement continuously
effective, supplemented and amended as required by the provisions of
Section 4(b) hereof to the extent necessary to ensure that (A) it is
available for resales by the Holders of Registrable Securities entitled to
the benefit of this Agreement and (B) conforms with the requirements of
this Agreement and the Securities Act and the rules and regulations of the
Commission promulgated thereunder as announced from time to time for a
period (the "EFFECTIVENESS PERIOD") of:
(1) two years after the last date of original
issuance of any of the Convertible Notes;
(2) the date when the Holders of Registrable
Securities are able to sell all such Registrable
Securities immediately without restriction pursuant to
Rule 144(k) under the Securities Act;
(3) the date when all of the Registrable Securities
of those Holders that have provided the information
required pursuant to the terms of Section 2(b) hereof are
registered under the Shelf Registration Statement and
disposed of in accordance with the terms of the Shelf
Registration Statement; or
(4) the date when all of the Registrable Securities
of those Holders that have provided the information
required pursuant to the terms of Section 2(b) hereof
have ceased to be outstanding (whether as a result of
redemption, repurchase and cancellation, conversion or
otherwise).
(b) No Holder of Registrable Securities may include any of its
Registrable Securities in the Shelf Registration Statement and related
Prospectus pursuant to this Agreement unless such Holder furnishes to the
Issuer in writing, prior to or on the 20th
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Business Day after the date of the request (the "QUESTIONNAIRE DEADLINE"),
such information as the Issuer may reasonably request for use in connection
with the Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein and in any application to be filed with or
under state securities laws. In connection with all such requests for
information from Holders of Registrable Securities, the Issuer shall notify
such Holders of the requirements set forth in the preceding sentence. No
Holder of Registrable Securities shall be entitled to Additional Amounts
pursuant to Section 3 hereof unless such Holder shall have provided all
such reasonably requested information prior to or on the Questionnaire
Deadline. Each Holder as to which the Shelf Registration Statement is being
effected agrees to furnish promptly to the Issuer all information required
to be disclosed in order to make information previously furnished to the
Issuer by such Holder not materially misleading.
3. ADDITIONAL AMOUNTS.
(a) If:
(i) the Shelf Registration Statement has not been filed with
the Commission prior to or on the Shelf Filing Deadline,
(ii) the Shelf Registration Statement has not been declared
effective by the Commission prior to or on the Effectiveness Target Date,
(iii) subject to the provisions of Section 4(b)(i) hereof, the
Shelf Registration Statement is filed and declared effective but, during
the Effectiveness Period and after the Effectiveness Target Date, shall
thereafter cease to be effective or fail to be usable for its intended
purpose without being succeeded within five Business Days by a
post-effective amendment to the Shelf Registration Statement, a prospectus
supplement or a report filed with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act that cures such failure and, in the
case of a post-effective amendment, is itself declared effective within
such five Business Day period,
(iv) prior to or on the 45th or 60th day, as the case may be,
of any Suspension Period, such suspension has not been terminated, or
(v) a Suspension Period exceeds an aggregate of 90 days in
any 360-day period
(each such event referred to in foregoing clauses (i) through (v), a
"REGISTRATION DEFAULT"), then the Issuer hereby agrees to pay additional
amounts ("ADDITIONAL AMOUNTS") to each Holder from and including the day
following the Registration Default to but excluding the earlier of (x) the
day on which the Registration Default has been cured or (y) the date the
Shelf Registration Statement is no longer required to be kept effective,
accruing at a rate:
(A) with respect to such Holder's Convertible Notes, for
the first 90-day period during which a Registration Default shall have
occurred and be
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continuing, an amount equal to 0.25% per annum on the principal amount
of such Holder's Convertible Notes, increasing to an amount per annum
on the principal amount of such Holder's Convertible Notes equal to
0.50% on the 91st day, provided that in no event shall the Additional
Amounts pursuant to this clause accrue at a rate per annum exceeding
0.50% of the principal amount of such Holder's Convertible Notes;
(B) with respect to such Holder's Ordinary Shares issued
upon conversion of Convertible Notes, for the first 90-day period
during which a Registration Default shall have occurred and be
continuing, an amount equal to 0.25% per annum on the principal amount
of such Holder's converted Convertible Notes, increasing to an amount
per annum on the principal amount of such Holder's converted
Convertible Notes equal to 0.50% on the 91st day, provided that in no
event shall the Additional Amounts pursuant to this clause accrue at a
rate per annum exceeding 0.50% of the principal amount of such
Holder's converted Convertible Notes;
(b) All accrued Additional Amounts shall be paid in arrears to Record
Holders by the Issuer on each Additional Amounts Payment Date by wire
transfer of immediately available funds or by federal funds check.
Following the cure of all Registration Defaults relating to any particular
Convertible Note or Ordinary Share, the accrual of Additional Amounts with
respect to such Convertible Note or Ordinary Share will cease.
All obligations of the Issuer set forth in this Section 3 that are
outstanding with respect to any Registrable Security at the time such
Registrable Security ceases to be a Registrable Security shall survive until
such time as all such obligations with respect to such Registrable Security
shall have been satisfied in full.
The Additional Amounts set forth above shall be the exclusive monetary
remedy available to the Holders of Registrable Securities for such Registration
Default.
4. REGISTRATION PROCEDURES.
(a) In connection with the Shelf Registration Statement, the Issuer
shall comply with all the provisions of Section 4(b) hereof and shall, in
accordance with Section 2 hereof, prepare and file with the Commission a
Shelf Registration Statement relating to the registration on any
appropriate form under the Securities Act.
(b) In connection with the Shelf Registration Statement and any
Prospectus required by this Agreement to permit the sale or resale of
Registrable Securities, the Issuer shall:
(i) Subject to any notice by the Issuer in accordance with
this Section 4(b) of the existence of any fact or event of the kind
described in Section 4(b)(iii)(D), use its reasonable best efforts to keep
the Shelf Registration Statement continuously effective during the
Effectiveness Period; upon the occurrence of any event that would cause the
Shelf Registration Statement or the Prospectus contained therein (A) to
contain a material
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misstatement or omission or (B) not be effective and usable for resale of
Registrable Securities during the Effectiveness Period, the Issuer shall
file promptly an appropriate amendment to the Shelf Registration Statement,
a prospectus supplement or a report filed with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, in the case of
clause (A), correcting any such misstatement or omission, and, in the case
of either clause (A) or (B), use its reasonable best efforts to cause such
amendment to be declared effective and the Shelf Registration Statement and
the related Prospectus to become usable for their intended purposes as soon
as practicable thereafter. Notwithstanding the foregoing, the Issuer may,
by written notice to the Holders, suspend the Holders' use of the
Prospectus for a period not to exceed an aggregate of 45 days in any 90-day
period (each such period, a "SUSPENSION PERIOD") if:
(x) an event occurs and is continuing as a result of which the
Prospectus would, in the Issuer's judgment, 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 not
misleading; and
(y) the Issuer reasonably determines in good faith that the
disclosure of such event at such time would have a material adverse
effect on the Issuer and its subsidiaries, if any, taken as a whole;
PROVIDED, that (A) in the event the disclosure relates to a previously
undisclosed proposed or pending material business transaction, the
disclosure of which would impede the Issuer's ability to consummate such
transaction, the Issuer may extend a Suspension Period from 45 days to 60
days and (B) the Suspension Periods shall not exceed an aggregate of 90
days in any 360-day period. Each Holder, by its acceptance of a Registrable
Security, agrees to hold in confidence any communication by the Issuer
relating to an event described in Section 4(b)(i)(x) and (y) or Section
4(b)(iii)(D). The Issuer shall not be required to specify in the written
notice to the Holders the nature of the event giving rise to the Suspension
Period.
(ii) Prepare and file with the Commission such amendments and
post-effective amendments to the Shelf Registration Statement as may be
necessary to keep the Shelf Registration Statement effective during the
Effectiveness Period; cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant
to Rule 424 under the Securities Act, and to comply fully with the
applicable provisions of Rules 424 and 430A under the Securities Act in a
timely manner; and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by the Shelf
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set forth
in the Shelf Registration Statement or supplement to the Prospectus.
(iii) Advise the underwriter(s), if any, and, in the case of
(A), (C) and (D) below, the selling Holders promptly and, if requested by
such Persons, to confirm such advice in writing:
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(A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to the
Shelf Registration Statement or any post-effective amendment thereto,
when the same has become effective,
(B) of any request by the Commission for amendments to
the Shelf Registration Statement or amendments or supplements to the
Prospectus or for additional information relating thereto,
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement under
the Securities Act or of the suspension by any state securities
commission of the qualification of the Registrable Securities for
offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes, or
(D) of the existence of any fact or the happening of any
event, during the Effectiveness Period, that makes any statement of a
material fact made in the Shelf Registration Statement, the
Prospectus, any amendment or supplement thereto, or any document
incorporated by reference therein untrue, or that requires the making
of any additions to or changes in the Shelf Registration Statement or
the Prospectus in order to make the statements therein not misleading.
If at any time the Commission shall issue any stop order suspending
the effectiveness of the Shelf Registration Statement, or any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Registrable Securities under state securities or Blue Sky laws, the Issuer
shall use its reasonable best efforts to obtain the withdrawal or lifting
of such order at the earliest possible time.
(iv) Furnish to one counsel for the selling Holders and each
of the underwriter(s), if any, before filing with the Commission, a copy of
the Shelf Registration Statement and copies of any Prospectus included
therein or any amendments or supplements to either of the Shelf
Registration Statement or Prospectus (other than documents incorporated by
reference after the initial filing of the Shelf Registration Statement),
which documents will be subject to the review of such counsel and
underwriter(s), if any, for a period of two Business Days, and the Issuer
will not file the Shelf Registration Statement or Prospectus or any
amendment or supplement to the Shelf Registration Statement or Prospectus
(other than documents incorporated by reference) to which such counsel or
the underwriter(s), if any, shall reasonably object within two Business
Days after the receipt thereof. Such counsel or underwriter, if any, shall
be deemed to have reasonably objected to such filing if the Shelf
Registration Statement, amendment, Prospectus or supplement, as applicable,
as proposed to be filed, contains a material misstatement or omission.
(v) Subject to the execution of a confidentiality agreement
reasonably acceptable to the Issuer, make available at reasonable times for
inspection by one or more
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representatives of the selling Holders, designated in writing by a Majority
of Holders whose Registrable Securities are included in the Shelf
Registration Statement, any underwriter, if any, participating in any
distribution pursuant to the Shelf Registration Statement, and any attorney
or accountant retained by the Majority of Holders or any of the
underwriter(s), all financial and other records, pertinent corporate
documents and properties of the Issuer as shall be reasonably necessary to
enable them to exercise any applicable due diligence responsibilities, and
cause the Issuer's officers, directors, managers and employees to supply
all information reasonably requested by any such representative or
representatives of the selling Holders, underwriter, attorney or accountant
in connection with the Shelf Registration Statement after the filing
thereof and before its effectiveness; PROVIDED, HOWEVER, that any
information designated by the Issuer as confidential at the time of
delivery of such information shall be kept confidential by the recipient
thereof.
(vi) If requested by any selling Holders or the
underwriter(s), if any, incorporate in the Shelf Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such selling Holders and underwriter(s), if
any, may reasonably request to have included therein, including, without
limitation: (1) information relating to the "PLAN OF DISTRIBUTION" of the
Registrable Securities, (2) information with respect to the principal
amount of Convertible Notes or number of Ordinary Shares being sold, (3)
the purchase price being paid therefor and (4) any other terms of the
offering of the Registrable Securities to be sold in such offering; and
make all required filings of such Prospectus supplement or post-effective
amendment as soon as reasonably practicable after the Issuer is notified of
the matters to be incorporated in such Prospectus supplement or
post-effective amendment.
(vii) Furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the Shelf
Registration Statement, as first filed with the Commission, and of each
amendment thereto (and any documents incorporated by reference therein or
exhibits thereto (or exhibits incorporated in such exhibits by reference)
as such Person may request in writing).
(viii) Deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement
thereto as such Persons reasonably may request; subject to any notice by
the Issuer in accordance with this Section 4(b) of the existence of any
fact or event of the kind described in Section 4(b)(iii)(D), the Issuer
hereby consents to the use of the Prospectus and any amendment or
supplement thereto by each of the selling Holders and each of the
underwriter(s), if any, in connection with the offering and the sale of the
Registrable Securities covered by the Prospectus or any amendment or
supplement thereto.
(ix) If an underwriting agreement is entered into and the
registration is an Underwritten Registration, the Issuer shall:
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(A) upon request, furnish to each selling Holder and
each underwriter, if any, in such substance and scope as they may
reasonably request and as are customarily made by issuers to
underwriters in primary underwritten offerings, upon the date of
closing of any sale of Registrable Securities in an Underwritten
Registration:
(1) a certificate, dated the date of such closing,
signed by (y) the Chairman of the Board or the President
and (z) the Chief Financial Officer of the Issuer
confirming, as of the date thereof, such matters as such
parties may reasonably request;
(2) opinions, each dated the date of such closing,
of counsel to the Issuer covering such matters as are
customarily covered in legal opinions to underwriters in
connection with primary underwritten offerings of
securities; and
(3) customary comfort letters, dated the date of
such closing, from the Issuer's independent accountants
(and from any other accountants whose report is contained
or incorporated by reference in the Shelf Registration
Statement), in the customary form and covering matters of
the type customarily covered in comfort letters to
underwriters in connection with primary underwritten
offerings of securities;
(B) set forth in full in the underwriting agreement, if
any, indemnification provisions and procedures which provide rights no
less protective than those set forth in Section 6 hereof with respect
to all parties to be indemnified; and
(C) deliver such other documents and certificates as may
be reasonably requested by such parties to evidence compliance with
clause (A) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the selling
Holders pursuant to this clause (ix).
(x) Before any public offering of Registrable Securities,
cooperate with the selling Holders, the underwriter(s), if any, and their
respective counsel in connection with the registration and qualification of
the Registrable Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders or underwriter(s), if any, may
reasonably request and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the
Registrable Securities covered by the Shelf Registration Statement;
PROVIDED, HOWEVER, that the Issuer shall not be required (A) to register or
qualify as a foreign corporation or a dealer of securities where it is not
now so qualified or to take any action that would subject it to the service
of process in any jurisdiction where it is not now so subject or (B) to
subject itself to taxation in any such jurisdiction if it is not now so
subject.
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(xi) Cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends (unless required by applicable law or upon
written advice of counsel); and enable such Registrable Securities to be in
such denominations and registered in such names as the Holders or the
underwriter(s), if any, may reasonably request at least two Business Days
before any sale of Registrable Securities made by such underwriter(s).
(xii) Use its reasonable best efforts to cause the Registrable
Securities covered by the Shelf Registration Statement to be registered
with or approved by such other governmental agencies or authorities in the
United States as may be necessary to enable the seller or sellers thereof
or the underwriter(s), if any, to consummate the disposition of such
Registrable Securities, subject to the proviso in clause (x) above.
(xiii) Subject to Section 4(b)(i) hereof, if any fact or event
contemplated by Section 4(b)(iii)(D) hereof shall exist or have occurred,
use its reasonable best efforts prepare a supplement or post-effective
amendment to the Shelf Registration Statement or related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of Registrable
Securities, the Prospectus will not contain an 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 not misleading.
(xiv) Provide CUSIP numbers for all Registrable Securities not
later than the effective date of the Shelf Registration Statement and
provide the Trustee under the Indenture with certificates for the
Convertible Notes that are in a form eligible for deposit with The
Depository Trust Company.
(xv) Cooperate and assist in any filings required to be made
with the NASD and, with reasonable prior written notice, in the performance
of any due diligence investigation by any underwriter that is required to
be retained in accordance with the rules and regulations of the NASD.
(xvi) Otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the Commission and all reporting
requirements under the rules and regulations of the Exchange Act.
(xvii) Cause the Indenture to be qualified under the TIA not
later than the effective date of the Shelf Registration Statement required
by this Agreement, and, in connection therewith, cooperate with the Trustee
and the holders of Convertible Notes to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute and use its reasonable
best efforts to cause the Trustee thereunder to execute all documents that
may be required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to be so
qualified in a timely manner.
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(xviii) Cause all Registrable Securities covered by the Shelf
Registration Statement to be listed or quoted, as the case may be, on each
securities exchange or automated quotation system on which securities
issued by the Issuer of the same series are then listed or quoted.
(xix) Provide promptly to each Holder upon written request each
document filed with the Commission pursuant to the requirements of Section
13 and Section 15 of the Exchange Act after the effective date of the Shelf
Registration Statement, unless such documents are available from XXXXX.
(xx) If requested by the underwriters in an Underwritten
Offering, make appropriate officers of the Issuer reasonably available to
the underwriters for meetings with prospective purchasers of the
Registrable Securities and prepare and present to potential investors
customary "road show" material in a manner consistent with other new
issuances of other securities similar to the Registrable Securities.
(c) Each Holder agrees by acquisition of a Registrable Security that,
upon receipt of any notice from the Issuer of the existence of any fact of
the kind described in Section 4(b)(iii)(D) hereof, such Holder will, and
will use its reasonable best efforts to cause any underwriter(s) in an
Underwritten Offering to, forthwith discontinue disposition of Registrable
Securities pursuant to the Shelf Registration Statement until:
(i) such Holder has received copies of the supplemented or
amended Prospectus contemplated by Section 4(b)(xiii) hereof; or
(ii) such Holder is advised in writing (the "ADVICE") by the
Issuer that the use of the Prospectus may be resumed, and has received
copies of any additional or supplemental filings that are incorporated by
reference in the Prospectus.
If so directed by the Issuer, each Holder will deliver to the Issuer (at
the Issuer's expense) all copies, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Registrable
Securities that was current at the time of receipt of such notice of
suspension.
(d) Each Holder who intends to be named as a selling Holder in the
Shelf Registration Statement shall furnish to the Issuer in writing, within
20 Business Days after the date of the questionnaire requesting information
in the form attached hereto as ANNEX A, such information regarding such
Holder and the proposed distribution by such Holder of its Registrable
Securities as the Issuer may reasonably request for use in connection with
the Shelf Registration Statement or Prospectus or preliminary Prospectus
included therein. Holders that do not complete the questionnaire and
deliver it to the Issuer shall not be named as selling securityholders in
the Prospectus or preliminary Prospectus included in the Shelf Registration
Statement and therefore shall not be permitted to sell any Registrable
Securities pursuant to the Shelf Registration Statement. Each Holder who
intends to be named as a selling Holder in the Shelf Registration Statement
shall promptly furnish to the Issuer in writing all information required to
be disclosed in order to make information previously furnished to the
Issuer by such Holder
12
not materially misleading and such other information as the Issuer may from
time to time reasonably request in writing.
(e) Upon the effectiveness of the Shelf Registration Statement, each
Holder shall notify the Issuer at least three Business Days prior to any
intended distribution of Registrable Securities pursuant to the Shelf
Registration Statement (a "SALE NOTICE"), which notice shall be effective
for five Business Days. Each Holder of a Convertible Note, by accepting the
same, agrees to hold any communication by the Issuer in response to a Sale
Notice in confidence. Each selling Holder shall deliver a notice of any
completed sale pursuant to the Shelf Registration Statement to the Issuer
substantially in the form attached as Exhibit 1 to ANNEX A hereto that (i)
identifies the sale as a transfer pursuant to the Shelf Registration
Statement, (ii) certifies that the Holder has complied with the prospectus
delivery requirements of the Securities Act and (iii) certifies that the
selling Holder and the aggregate amount of Registrable Securities owned by
such Holder are identified in the related Prospectus in accordance with the
Securities Act and the rules and regulations of the Commission promulgated
thereunder.
5. REGISTRATION EXPENSES.
(a) All expenses incident to the Issuer's performance of or
compliance with this Agreement shall be borne by the Issuer regardless of
whether a Shelf Registration Statement becomes effective, including,
without limitation:
(i) all registration and filing fees and expenses (other than
filings made by any Initial Purchasers or Holders with the NASD);
(ii) all fees and expenses of compliance with federal
securities and state Blue Sky or securities laws;
(iii) all expenses of printing (including printing of
Prospectuses and certificates for the Ordinary Shares to be issued upon
conversion of the Convertible Notes), messenger and delivery services, and
telephone;
(iv) all reasonable fees and disbursements of counsel to the
Issuer and, subject to Section 5(b) below, the Holders of Registrable
Securities;
(v) all application and filing fees in connection with
listing (or authorizing for quotation) the Ordinary Shares on a national
securities exchange or automated quotation system pursuant to the
requirements hereof; and
(vi) all fees and disbursements of independent certified
public accountants of the Issuer (including the expenses of any special
audit and comfort letters required by or incident to such performance).
The Issuer shall bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees
performing legal, accounting or other duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Issuer.
13
(b) In connection with the Shelf Registration Statement required by
this Agreement, the Issuer shall reimburse the Initial Purchasers and the
Holders of Registrable Securities being registered pursuant to the Shelf
Registration Statement, as applicable, for the reasonable fees and
disbursements of not more than one counsel, which shall be Xxxxxxx Xxxxxxx
& Xxxxxxxx or such other chosen by a Majority of Holders for whose benefit
the Shelf Registration Statement is being prepared and is reasonably
acceptable to the Issuer. The Issuer shall not be required to pay any
underwriter discount, commission or similar fees related to the sale of the
Registrable Securities.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Issuer shall indemnify and hold harmless each Holder, such
Holder's directors, officers and each person, if any, who controls such
Holder within the meaning of Section 15 of the Securities Act (each, an
"INDEMNIFIED HOLDER"), from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including,
but not limited to, any loss, claim, damage, liability or action relating
to resales of the Registrable Securities), to which such Indemnified Holder
may become subject, under the Securities Act or otherwise, insofar as any
such loss, claim, damage, liability or action arises out of, or is based
upon:
(i) any untrue statement or alleged untrue statement of a
material fact contained in (A) the Shelf Registration Statement or
Prospectus or any amendment or supplement thereto or (B) any blue sky
application or other document or any amendment or supplement thereto
prepared or executed by the Issuer (or based upon written information
furnished by or on behalf of the Issuer expressly for use in such blue sky
application or other document or amendment on supplement) filed in any
jurisdiction specifically for the purpose of qualifying any or all of the
Registrable Securities under the securities law of any state or other
jurisdiction (such application or document being hereinafter called a "BLUE
SKY APPLICATION"); or
(ii) the omission or alleged omission to state in the Shelf
Registration Statement any material fact required to be stated therein or
necessary to make the statements therein not misleading, or the omission or
alleged omission to state in the Prospectus 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 shall reimburse each Indemnified Holder promptly upon demand for any
legal or other expenses reasonably incurred by such Indemnified Holder in
connection with investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action as such expenses are
incurred; PROVIDED, HOWEVER, that in each case the Issuer shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement
or alleged untrue statement or omission or alleged omission made in the
Shelf Registration Statement or Prospectus or amendment or supplement
thereto or Blue Sky Application in reliance upon and in conformity with
written information furnished to the Issuer by or on behalf of any
14
Holder (or its related Indemnified Holder) specifically for use therein;
PROVIDED, FURTHER, that as to any preliminary Prospectus, this indemnity
agreement shall not inure to the benefit of any Indemnified Holder or any
officer, employee, representative, agent, director or controlling person of
that Indemnified Holder on account of any loss, claim, damage, liability or
action arising from the sale of the Registrable Securities sold pursuant to
the Shelf Registration Statement to any person by such Indemnified Holder
if (i) that Indemnified Holder failed to send or give a copy of the
Prospectus, as the same may be amended or supplemented, to that person
within the time required by the Securities Act and (ii) the untrue
statement or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact in such preliminary Prospectus
was corrected in the Prospectus or a supplement or amendment thereto, as
the case may be, unless in each case, such failure resulted from
noncompliance by the Issuer with Section 4. The foregoing indemnity
agreement is in addition to any liability that the Issuer may otherwise
have to any Indemnified Holder.
(b) Each Holder, severally and not jointly, shall indemnify and hold
harmless the Issuer, its directors, officers and each person, if any, who
controls the Issuer within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, from and against any loss, claim, damage
or liability, joint or several, or any action in respect thereof, to which
the Issuer or any such officer, employee, representative, agent or
controlling person may become subject, insofar as any such loss, claim,
damage or liability or action arises out of, or is based upon:
(i) any untrue statement or alleged untrue statement of any
material fact contained in the Shelf Registration Statement or Prospectus
or any amendment or supplement thereto or any Blue Sky Application; or
(ii) the omission or the alleged omission to state in the
Shelf Registration Statement any material fact required to be stated
therein or necessary to make the statements therein not misleading, or the
omission or alleged omission to state in the Prospectus 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,
but 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 Issuer by or on
behalf of such Holder (or its related Indemnified Holder) specifically for
use therein, and shall reimburse the Issuer and any such director, officer,
employee, representative, agent or controlling person promptly upon demand
for any legal or other expenses reasonably incurred by the Issuer or any
such officer, employee or controlling person in connection with
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability that any
Holder may otherwise have to the Issuer and any such director, officer,
employee or controlling person.
15
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, notify the indemnifying party in
writing of the claim or the commencement of that action; PROVIDED, HOWEVER,
that the failure to notify the indemnifying party shall not relieve it from
any liability that it may have under this Section 6 except to the extent it
has been materially prejudiced by such failure and, provided, further, that
the failure to notify the indemnifying party shall not relieve it from any
liability that it may have to an indemnified party otherwise than under
this Section 6. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel satisfactory
to the indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 6 for any legal or other expenses subsequently incurred
by the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; PROVIDED, HOWEVER, that the indemnified
party shall have the right to employ counsel to represent jointly the
indemnified party and its respective directors, employees, officers and
controlling persons who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by the indemnified party
against the indemnifying party under this Section 6 if such indemnified
party shall have been advised in writing that the representation of such
indemnified party and those directors, employees, officers and controlling
persons by the same counsel would be inappropriate under applicable
standards of professional conduct due to actual or potential differing
interests between them, and in that event the fees and expenses of such
separate counsel shall be paid by the indemnifying party. It is understood
that the indemnifying party shall not be liable for the fees and expenses
of more than one separate firm (in addition to local counsel in each
jurisdiction) for all indemnified parties in connection with any proceeding
or related proceedings. Each indemnified party, as a condition of the
indemnity agreements contained in Sections 6(a) and 6(b), shall use its
reasonable best efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall:
(i) without the prior written consent of the indemnified
parties (which consent shall not be unreasonably withheld) effect any
settlement of any pending or threatened action in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of such indemnified party from all liability arising
out of such claim, action, suit or proceeding and does not include a
statement as to or an admission of fault, culpability or failure to act by
or on behalf of any indemnified party, or
(ii) be liable for any settlement of any such action effected
without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the
16
indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss of liability by reason of such settlement
or judgment in accordance with this Section 6.
(d) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof)
referred to in subsection (a) or (b) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party on the other
from the registration of the Registrable Securities pursuant to the Shelf
Registration, or (ii) if the allocation provided by the foregoing clause
(i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the indemnifying party or parties
on the one hand and the indemnified party on the other in connection with
the statements or omissions that resulted in such losses, claims, damages
or liabilities (or actions in respect thereof) as well as any other
relevant equitable considerations. The relative fault of the parties shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Issuer on the one hand or such Holder or such other indemnified party, as
the case may be, on the other, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding any other provision of this Section 6(d),
the Holders of the Registrable Securities shall not be required to
contribute any amount in excess of the amount by which the gross proceeds
received by such Holders from the sale of the Registrable Securities
pursuant to the Shelf Registration Statement exceeds the amount of damages
which such Holders have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this paragraph (d), each person, if any, who controls such
indemnified party within the meaning of the Securities Act or the Exchange
Act shall have the same rights to contribution as such indemnified party
and each person, if any, who controls the Issuer within the meaning of the
Securities Act or the Exchange Act shall have the same rights to
contribution as the Issuer.
(e) The indemnity and contribution provisions contained in this
Section 6 shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Initial Purchaser, any Holder or any person controlling any
Initial Purchaser or any Holder, or by or on behalf
17
of the Issuer, its officers or directors or any person controlling the
Issuer, and (iii) any sale of Registrable Securities pursuant to the Shelf
Registration Statement.
7. RULE 144A.
In the event the Issuer is not subject to Section 13 or 15(d) of the
Exchange Act, the Issuer hereby agrees with each Holder, for so long as any
Registrable Securities remain outstanding, to make available to any Holder or
beneficial owner of Registrable Securities in connection with any sale thereof
and any prospective purchaser of such Registrable Securities from such Holder or
beneficial owner, the information required by Rule 144A(d)(4) under the
Securities Act in order to permit resales of such Registrable Securities
pursuant to Rule 144A.
8. UNDERWRITTEN REGISTRATIONS.
(a) The Underwriting Majority may sell its Registrable Securities in
an Underwritten Offering pursuant to the Shelf Registration Statement only
with the Issuer's consent, which consent may be granted or withheld in the
Issuer's sole discretion.
(b) PARTICIPATION OF HOLDERS. No Holder may participate in any
Underwritten Registration hereunder unless such Holder:
(i) agrees to sell such Holder's Registrable Securities on
the basis provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements; and
(ii) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters
and other documents reasonably required under the terms of such
underwriting arrangements.
(c) SELECTION OF UNDERWRITERS. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by a Majority of Holders whose
Registrable Securities are included in such Underwriting Offering;
provided, that such investment bankers and managers must be reasonably
satisfactory to the Issuer.
9. MISCELLANEOUS.
(a) REMEDIES. The Issuer acknowledges and agrees that any failure by
the Issuer to comply with its obligations under Section 2 hereof may result
in material irreparable injury to the Initial Purchasers or the Holders for
which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of any
such failure, the Initial Purchasers or any Holder may obtain such relief
as may be required to specifically enforce the Issuer's obligations under
Section 2 hereof. The Issuer further agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Issuer will not, on or after the
date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent
18
with the rights granted to the Holders in this Agreement or otherwise
conflicts with the provisions hereof. In addition, other than as disclosed
in the Offering Memorandum dated November 18, 2002 (the "Offering
Memorandum"), the Issuer shall not grant to any of its security holders
(other than the holders of Registrable Securities in such capacity) the
right to include any of its securities in the Shelf Registration Statement
provided for in this Agreement other than the Registrable Securities. Other
than as disclosed in the Offering Memorandum, the Issuer has not previously
entered into any agreement (which has not expired or been terminated)
granting any registration rights with respect to its securities to any
Person, which rights conflict with the provisions hereof.
(c) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Issuer shall
not, directly or indirectly, take any action with respect to the
Registrable Securities as a class that would adversely affect the ability
of the Holders of Registrable Securities to include such Registrable
Securities in a registration undertaken pursuant to this Agreement.
(d) AMENDMENTS AND WAIVERS. This Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from the
provisions hereof may not be given, unless the Issuer has obtained the
written consent of a Majority of Holders; PROVIDED, HOWEVER, that no
amendment, modification, supplement, waiver or consent to or departure from
the provisions of Section 6 that materially and adversely affects a Holder
hereof shall be effective as against any such Holder of Registrable
Securities unless consented to in writing by such Holder; PROVIDED,
FURTHER, that with respect to any matter that directly or indirectly
adversely affects the rights of any Initial Purchaser hereunder, the Issuer
shall obtain the written consent of each such Initial Purchaser against
which such amendment, modification, supplement, waiver or consent is to be
effective.
(e) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class
mail (registered or certified, return receipt requested), telex,
telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records
of the registrar under the Indenture or the transfer agent of the Ordinary
Shares, as the case may be; and
(ii) if to the Issuer:
Scottish Annuity & Life Holdings, Ltd.
P.O. Box HM 2939
Xxxxxxxx XX MX
BERMUDA
Attention: Xxxx Xxxxxxx, Esq.
Telecopy number: (000) 000-0000
with a copy to:
00
XxXxxxx, Xxxx, Xxxxxx & XxxXxx, L.L.P.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. XxXxxxxxx, Esq.
Telecopy number: (000) 000-0000
(iii) if to the Initial Purchasers:
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: Convertible Capital Markets
With a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if
mailed; when answered back, if telexed; when receipt acknowledged, if
telecopied; and on the next Business Day, if timely delivered to an air
courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
A document or notice shall be deemed to have been furnished to the Holders
of the Registrable Securities if it is provided to the registered holders
of the Registrable Securities at the address set forth in clause (i) above.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of each of
the parties, including without limitation and without the need for an
express assignment, subsequent Holders of Registrable Securities; PROVIDED,
HOWEVER, that (i) nothing contained herein shall be deemed to permit any
assignment, transfer or other disposition of Registrable Securities in
violation of the terms of the Purchase Agreement or the Indenture and (ii)
this Agreement shall not inure to the benefit of or be binding upon a
successor or assign of a Holder unless and to the extent such successor or
assign acquired Registrable Securities from such Holder. If any transferee
of any Holder shall acquire Registrable Securities, in any manner, whether
by operation of law or otherwise, such Registrable Securities shall
20
be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities such person shall be conclusively
deemed to have agreed to be bound by and to perform all of the terms and
provisions of this Agreement and such Person shall be entitled to receive
the benefits hereof. The Initial Purchasers (in their capacity as Initial
Purchasers) shall have no liability or obligation to the Issuer with
respect to any failure by a Holder to comply with, or breach by any Holder
of, any of the obligations of such Holder under this Agreement.
(g) PURCHASES AND SALES OF CONVERTIBLE NOTES. The Issuer shall not,
and shall use its reasonable best efforts to cause its affiliates (as
defined in Rule 405 under the Securities Act) within its Control not to,
resell or otherwise transfer any Convertible Notes acquired by the Company
or such affiliates, except pursuant to an effective registration statement
under the Securities Act or an exemption therefrom.
(h) THIRD PARTY BENEFICIARY. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Issuer and the
Initial Purchasers, and such Initial Purchasers shall have the right to
enforce such agreements directly to the extent they deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder.
(i) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(j) SECURITIES HELD BY THE ISSUER OR THEIR AFFILIATES. Whenever the
consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Issuer
or its affiliates (as such term is defined in Rule 405 under the Securities
Act) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
(k) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(l) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(m) SUBMISSION TO JURISDICTION AND SERVICE OF PROCESS. (i) The
Company submits to the jurisdiction of the courts of the State of New York
and the courts of the United States of America, in each case located in the
Borough of Manhattan, City of New York and State of New York over any suit,
action or proceeding with respect to this Agreement or the transactions
contemplated hereby. The Company waives any objection that it may have to
the venue of any suit, action or proceeding with respect to this Agreement
or the transactions contemplated hereby in the courts of the State of New
York or the courts of the United States of America, in each case located in
the Borough of Manhattan, City of New York and State of New York, or that
such suit, action or proceeding brought in the courts of the State of New
York or the courts of the United
21
States of America, in each case located in the Borough of Manhattan, City
of New York and State of New York, was brought in an inconvenient court and
agrees not to plead or claim the same.
(ii) The Company agrees that service of all writs, process and
summonses in any suit, action or proceeding brought in connection with this
Agreement against the Company in any court of the State of New York or any
United States Federal court, in each case, sitting in the Borough of
Manhattan, City and State of New York, may be made upon CT Corporation
System at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, whom the Company
irrevocably appoints as its authorized agent for service of process. The
Company represents and warrants that CT Corporation System has agreed to
act as the Company's agent for service of process. The Company agrees that
such appointment shall be irrevocable until the irrevocable appointment by
the Company of a successor in The City of New York as its authorized agent
for such purpose and the acceptance of such appointment by such successor.
The Company further agrees to take any and all action, including the filing
of any and all documents and instruments that may be necessary to continue
such appointment in full force and effect as aforesaid. If CT Corporation
System shall cease to act as the agent for service of process for the
Company, the Company shall appoint without delay, another such agent and
provide prompt written notice to Bear, Xxxxxxx & Co. Inc. of such
appointment.
(n) SEVERABILITY. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid,
illegal or unenforceable, the validity, legality and enforceability of any
such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(o) ENTIRE AGREEMENT. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or
referred to herein with respect to the registration rights granted by the
Issuer with respect to the Registrable Securities. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
[Signature page to follow]
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
Very truly yours,
SCOTTISH ANNUITY & LIFE HOLDINGS, LTD.
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxx
Title: President
The foregoing Registration Rights Agreement is hereby confirmed and
accepted as of the date first above written.
BEAR, XXXXXXX & CO. INC.
By: /s/ Xxxxxxx Parish
-------------------------------------
Name: Xxxxxxx Parish
Title: Senior Managing Director
XXXXXX XXXXXX SECURITIES INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
ANNEX A
SCOTTISH ANNUITY & LIFE HOLDINGS, LTD.
FORM OF NOTICE OF REGISTRATION STATEMENT AND
SELLING SECURITYHOLDER ELECTION AND QUESTIONNAIRE
NOTICE
Scottish Annuity & Life Holdings, Ltd. (the "Company") has filed, or
intends shortly to file, with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 or such other Form as may be
available (the "Shelf Registration Statement") for the registration and resale
under Rule 415 of the Securities Act of 1933, as amended (the "Securities Act"),
of the Company's 4.50% Senior Convertible Notes due 2022 (CUSIP No. 00000XXX0)
(the "Notes"), and ordinary shares, par value $0.01 per share, issuable upon
conversion thereof (the "Ordinary Shares" and together with the Notes, the
"Transfer Restricted Securities") in accordance with the terms of the
Registration Rights Agreement, dated as of November 22, 2002 (the "Registration
Rights Agreement") between the Company and Bear, Xxxxxxx & Co. Inc. and Xxxxxx
Xxxxxx Securities Inc. A copy of the Registration Rights Agreement is available
from the Company. All capitalized terms not otherwise defined herein have the
meaning ascribed thereto in the Registration Rights Agreement.
To sell or otherwise dispose of any Transfer Restricted Securities pursuant
to the Shelf Registration Statement, a beneficial owner of Transfer Restricted
Securities generally will be required to be named as a selling securityholder in
the related prospectus, deliver a prospectus to purchasers of Transfer
Restricted Securities, be subject to certain civil liability provisions of the
Securities Act and be bound by those provisions of the Registration Rights
Agreement applicable to such beneficial owner (including certain indemnification
rights and obligations, as described below). To be included in the Shelf
Registration Statement, this Election and Questionnaire must be completed,
executed and delivered to the Company at the address set forth herein for
receipt PRIOR TO OR ON THE 20TH BUSINESS DAY AFTER THE DATE HEREOF (the
"Election and Questionnaire Deadline"). BENEFICIAL OWNERS THAT DO NOT COMPLETE
AND RETURN THIS ELECTION AND QUESTIONNAIRE PRIOR TO THE ELECTION AND
QUESTIONNAIRE DEADLINE AND DELIVER IT TO THE COMPANY AS PROVIDED BELOW WILL NOT
BE NAMED AS SELLING SECURITYHOLDERS IN THE SHELF REGISTRATION STATEMENT AND
THEREFORE WILL NOT BE PERMITTED TO SELL ANY TRANSFER RESTRICTED SECURITIES
PURSUANT TO THE SHELF REGISTRATION STATEMENT.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and the related prospectus.
Accordingly, holders and beneficial owners of Transfer Restricted Securities are
advised to consult their own securities law counsel regarding the consequences
of being named or not being named as a selling securityholder in the Shelf
Registration Statement and the related prospectus.
ELECTION
The undersigned holder (the "Selling Securityholder") of Transfer
Restricted Securities hereby elects to include in the Shelf Registration
Statement the Transfer Restricted Securities beneficially owned by it and listed
below in Item 3 (unless otherwise specified under Item 3). The undersigned, by
signing and returning this Election and Questionnaire, understands that it will
be bound with respect to such Transfer Restricted Securities by the terms and
conditions of this Election and Questionnaire and the Registration Rights
Agreement.
Pursuant to the Registration Rights Agreement, the Selling Securityholder
has agreed to indemnify and hold harmless the Company, the Company's directors,
the Company's officers, employees, representatives and agents and each person,
if any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against certain
losses arising in connection with statements concerning the Selling
Securityholder made in the Shelf Registration Statement or the related
prospectus in reliance upon the information provided in this Election and
Questionnaire.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
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QUESTIONNAIRE
1. (a) Full legal name of Selling Securityholder:
___________________________________________________________________________
(b) Full legal name of registered holder (if not the same as (a) above)
through which Transfer Restricted Securities listed in (3) below are
held:
___________________________________________________________________________
(c) Full legal name of DTC participant (if applicable and if not the same
as (b) above) through which Transfer Restricted Securities listed in
(3) are held:
___________________________________________________________________________
2. Address for notices to Selling Securityholders:
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
Telephone: ________________________________________________________________
Fax: ______________________________________________________________________
Contact Person: ___________________________________________________________
3. Beneficial ownership of Transfer Restricted Securities:
(a) Type of Transfer Restricted Securities beneficially owned, and
principal amount of Notes or number of Ordinary Shares, as the case
may be, beneficially owned:
___________________________________________________________________________
(b) CUSIP No(s). of such Transfer Restricted Securities beneficially
owned:
___________________________________________________________________________
4. Beneficial ownership of the Company's securities owned by the Selling
Securityholder:
Except as set forth below in this Item (4), the undersigned is not the
beneficial or registered owner of any securities of the Company other than
the Transfer Restricted Securities listed above in Item (3) ("Other
Securities").
(a) Type and amount of Other Securities beneficially owned by the
Selling Securityholder:
___________________________________________________________________________
(b) CUSIP No(s). of such Other Securities beneficially owned:
___________________________________________________________________________
5. Relationship with the Company:
Except as set forth below, neither the undersigned nor any of its
affiliates, officers, directors or principal equity holders (5% or more)
has held any position or office or has had any other material relationship
with the Company (or their predecessors or affiliates) during the past
three years.
State any exceptions here:
___________________________________________________________________________
___________________________________________________________________________
6. Plan of Distribution:
Except as set forth below, the undersigned (including its donees or
pledgees) intends to distribute the Transfer Restricted Securities listed
above in Item (3) pursuant to the Shelf Registration Statement only as
follows (if at all). Such Transfer Restricted Securities may be sold from
time to time directly by the undersigned or, alternatively, through
underwriters, broker-dealers or agents. If the Transfer Restricted
Securities are sold through underwriters or broker-dealers, the Selling
Securityholder will be responsible for underwriting discounts or
commissions or agent's commissions. Such Transfer Restricted Securities may
be sold in one or more transactions at fixed prices, at prevailing market
prices at the time of sale, at varying prices determined at the time of
sale, or at negotiated prices. Such sales may be effected in transactions
(which may involve crosses
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or block transactions):
(i) on any national securities exchange or quotation service on
which the Transfer Restricted Securities may be listed or quoted
at the time of sale;
(ii) in the over-the-counter market;
(iii) in transactions otherwise than on such exchanges or services or
in the over-the-counter market; or
(iv) through the writing of options.
In connection with sales of the Transfer Restricted Securities or
otherwise, the undersigned may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the Transfer
Restricted Securities and deliver Transfer Restricted Securities to close
out such short positions, or loan or pledge Transfer Restricted Securities
to broker-dealers that in turn may sell such securities. State any
exceptions here:
___________________________________________________________________________
___________________________________________________________________________
NOTE: In no event will such method(s) of distribution take the
form of an underwritten offering of the Transfer Restricted Securities
without the prior agreement of the Company.
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees it will comply, with the
prospectus delivery and other provisions of the Securities Act and Exchange
Act and the respective rules and regulations promulgated thereunder,
particularly Regulation M thereunder (or any successor rules or
regulations), in connection with any offering of Transfer Restricted
Securities pursuant to the Shelf Registration Statement.
If the Selling Securityholder transfers all or any portion of the
Transfer Restricted Securities listed in Item 3 above after the date on
which such information is provided to the Company, the Selling
Securityholder agrees to notify the transferee(s) at the time of the
transfer of its rights and obligations under this Election and
Questionnaire and the Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the
disclosure of the information contained herein in its answers to Items (1)
through (5) above and the inclusion of such information in the Shelf
Registration Statement and the related Prospectus. The Selling
Securityholder understands that such information will be relied upon by the
Company in connection with the preparation or amendment of the Shelf
Registration Statement and the related Prospectus.
In accordance with the Selling Securityholder's obligation under
the Registration Rights Agreement to provide such information as may be
required by law for inclusion in the Shelf Registration Statement, the
Selling Securityholder agrees to promptly notify the Company of any
inaccuracies or changes in the information provided herein that may occur
subsequent to the date hereof at any time while the Shelf Registration
Statement remains effective. All notices hereunder and pursuant to the
Registration Rights Agreement shall be made in writing at the address set
forth below.
Once this Election and Questionnaire is executed by the Selling
Securityholder and received by the Company, the terms of this Election and
Questionnaire and the representations and warranties contained herein shall
be binding on, shall inure to the benefit of and shall be enforceable by
the respective successors, heirs, personal representatives and assigns of
the Company and the Selling Securityholder with respect to the Transfer
Restricted Securities beneficially owned by such Selling Securityholder and
listed in Item 3 above. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Election and Questionnaire to be executed and delivered either in
person or by its authorized agent.
Dated:
Beneficial Owner
A-3
By:
------------------------------------
Name:
Title:
Please return the completed and executed Election and Questionnaire for
receipt PRIOR TO OR ON THE 20TH BUSINESS DAY AFTER THE DATE HEREOF to Scottish
Annuity & Life Holdings, Ltd. at:
Scottish Annuity & Life Holdings, Ltd.
P.O. Box HM 2939
Xxxxxxxx, XX MX
Bermuda
Attention: Xxxxxxxxx Xxxxxx
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EXHIBIT 1 TO ANNEX A
NOTICE TO TRANSFER PURSUANT
TO REGISTRATION STATEMENT
Scottish Annuity & Life Holdings, Ltd.
X.X. Xxx XX 0000
Xxxxx Xxxxx, Xxxxx Xxxxx
4 Par-la-Ville Road
Xxxxxxxx, HM08
Bermuda
Re: Scottish Annuity & Life Holdings, Ltd.'s 4.50% Senior Convertible
Notes due 2022 (the "Notes ")
Dear Sirs:
Please be advised that the undersigned has transferred $ ________
aggregate principal amount of the above-referenced Notes or _____________ of the
Company's Ordinary Shares issued on conversion or repurchase of the Notes,
pursuant to the Registration Statement on Form S-3 (File No. 333-_______) filed
by the Company.
We hereby certify that the prospectus delivery requirements, if any,
of the Securities Act of 1933, as amended, have been satisfied with respect to
the transfer described above and that the above named beneficial owner of the
Notes or Ordinary Shares is named as a selling securityholder in the Prospectus
dated __________, or in amendments or supplements thereto, and that the
aggregate principal amount of the Notes or number of Ordinary Shares transferred
are [all or a portion of] the Notes or Ordinary Shares listed in such
Prospectus, as amended or supplemented, opposite such owner's name.
Very truly yours,
[name]
By:
-------------------------------------
(Authorized signature)
Dated:
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