Exhibit 2
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Registration Rights Agreement dated April 15, 1998, among ANNUITY AND LIFE
RE (HOLDINGS), LTD., a Bermuda corporation (the "Company"), and EXEL LIMITED
(the "Initial Holder").
The Company has issued its common shares, par value $1.00 per share
("Common Shares") and its Class B Warrants to purchase Common Shares (the
"Warrants") to the Initial Holder pursuant to the terms of that certain
Securities Purchase Agreement, between the Company and the Initial Holder dated
as of March 4, 1998 (the "Securities Purchase Agreement"). Pursuant to the
Securities Purchase Agreement, the Company has agreed to register such shares
for sale under the Securities Act of 1933, as amended, as more specifically
provided below.
NOW, THEREFORE, in consideration of the completion of the transactions
contemplated by the Securities Purchase Agreement and of the mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows,
intending to be legally bound.
Section 1. Definitions. As used in this Agreement, the following terms have
the following meanings:
"Business Day": any day on which the Company's Common Shares are available
for trading on the principal stock exchange or market upon which they are
traded.
"Closing Date": the date on which is consummated the transactions
contemplated by the Securities Purchase Agreement.
"Common Shares": the Company's Common Shares, par value $1.00 per share.
"Exchange Act": the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC thereunder, all as the same shall be in effect
at the relevant time.
"Holders": the Initial Holder and the permitted successors or assignees of
the Initial Holder, for so long as (and to the extent that) such Persons own or
have the right to acquire any Registrable Securities.
"Holder Agreements": This Agreement and any other Agreement between the
Company and one of the Other Investors which is substantially similar to this
Agreement.
"Other Investors: The Persons (other than the Company) which are parties to
Securities Purchase Agreements in substantially the form entered into between
the Company and the Holder on March 4, 1998.
"Person": an individual, a partnership (general or limited), corporation,
limited liability company, joint venture, business
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trust, cooperative, association or other form of business organization, whether
or not regarded as a legal entity under applicable law, a trust (inter vivos or
testamentary), an estate of a deceased, insane or incompetent person, a
quasi-governmental entity, a government or any agency, authority, political
subdivision or other instrumentality thereof, or any other entity.
"Registrable Securities": (1) the Common Shares issued pursuant to the
terms of the Securities Purchase Agreement; (2) the Common Shares issued or
issuable pursuant to the Warrants issued pursuant to the terms of the Securities
Purchase Agreement, and (3) any additional Common Shares or other equity
securities of the Company issued or issuable in respect of such Common Shares
(or other equity securities issued in respect. thereof) by way of a stock
dividend or stock split, in connection with a combination, exchange,
reorganization, recapitalization or reclassification of Company securities, or
pursuant to a merger, division, consolidation or other similar business
transaction or combination involving the Company; provided that as to any
particular Registrable Securities, such securities shall cease to constitute
Registrable Securities (a) when a registration statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities shall have been disposed of thereunder, (b) when such securities
shall have been disposed of pursuant to Rule 144 (or any successor provision to
such Rule) under the Securities Act, or (c) when such securities shall have
ceased to be outstanding.
"Registration Expenses": all expenses incident to the Company's performance
of or compliance with the registration requirements set forth in this Agreement
including, without limitation, the following: (a) the fees, disbursements and
expenses of the Company's counsel, accountants, and experts in connection with
the registration under the Securities Act of Registrable Securities; (b) all
expenses in connection with the preparation, printing and filing of the
registration statement, any preliminary prospectus or final prospectus, any
other offering document and amendments and supplements thereto, and the mailing
and delivering of copies thereof to underwriters and dealers, if any; (c) the
cost of printing or producing any agreement(s) among underwriters, underwriting
agreement(s) and blue sky or legal investment memoranda, any selling agreements,
and any other documents in connection with the offering, sale or delivery of
Registrable Securities to be disposed of; (d) the fees and expenses incurred in
connection with the listing of Registrable Securities on each securities
exchange on which Company securities of the same class are then listed or with
the Nasdaq National Market System; (e) the fees and expenses, not to exceed
$25,000, of a single counsel retained by any and all Persons participating in a
registration pursuant to a Holder Agreement, (f) any underwriters, discounts or
compensation, brokers' commissions or similar selling expenses attributable to
the sale of Registrable Securities; (g) any SEC or blue sky
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registration or filing fees attributable to Registrable Securities or transfer
taxes applicable to Registrable Securities, (h) any other expenses in connection
with the qualification of Registrable Securities for offer and sale under state
securities laws, including the fees and disbursements of counsel for the
underwriters in connection with such qualification and in connection with any
blue sky and legal investment surveys; and (i) the filing fees incident to
securing any required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of Registrable Securities to be disposed of.
"Registration Statement": a registration statement under the Securities Act
filed by the Company pursuant to this Agreement, including all amendments
thereto, all preliminary and final prospectuses included therein and all
exhibits thereto.
"SEC": the United States Securities and Exchange Commission, or such other
federal agency at the time having the principal responsibility for administering
the Securities Act.
"Securities Act": the Securities Act of 1933, as amended, and the rules and
regulations of the SEC thereunder, all as the same shall be in effect at the
relevant time.
"Warrant": the Class B Warrants of the Company.
Section 2. Underwritten Demand Registration.
(a) At any time on or after the first anniversary of the Closing Date, and
before the tenth anniversary of the Closing Date the Holder or Holders of thirty
(30) percent or more of the Registrable Securities may (by written notice
delivered to the Company) require registration of all or any portion of such
Registrable Securities for sale in an underwritten public offering. In each such
case, such notice shall specify the number of Registrable Securities for which
such underwritten offering is to be made. Within ten Business Days after its
receipt of any such notice, the Company shall give written notice of such
request to all other Holders, and all such Holders shall have the right to have
any or all Registrable Securities owned by them included in the requested
underwritten offering as they shall specify in a written notice received by the
Company within ten Business Days after the Company's notice is given. Within ten
Business Days after the expiration of such ten Business Day period, the Company
shall notify all Holders requesting inclusion of Registrable Securities in the
proposed underwriting of (1) the aggregate number of Registrable Securities
proposed to be included by all Holders in the offering, and (2) the proposed
commencement date of the offering, which shall be a date not more than thirty
days after the Company gives such notice. The managing underwriter for such
offering shall be chosen by the Holders of a majority of the Registrable
Securities being included therein and shall be satisfactory to the Company.
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(b) If any request for an underwriting shall have been made pursuant to
subsection (a), the Company shall, at the request of the managing underwriter
for such offering, prepare and file a Registration Statement with the SEC as
promptly as reasonably practicable, but in any event within 45 days after the
managing underwriter's request therefor.
(c) The Company shall not have any obligation to permit or participate in
more than two underwritten public offerings pursuant to this Section, or to file
a Registration Statement pursuant to this Section with respect to less than
thirty (30) percent of the Registrable Securities.
(d) The Company shall have the right to defer the filing or effectiveness
of a Registration Statement relating to any registration requested under this
Section for a reasonable period of time not to exceed 180 days if (1) the
Company is, at such time, working on an underwritten public offering of its
securities for the account of the Company and is advised by its managing
underwriter that such offering would in its opinion be materially adversely
affected by such filing; or (2) the Company in good faith determines that any
such filing or the offering of any Registrable Securities would (A) materially
impede, delay or interfere with any proposed financing, offer or sale of
securities, acquisition, corporate reorganization or other significant
transaction involving the Company or (B) require the disclosure of material
non-public information, the disclosure of which would materially and adversely
affect the Company.
(e) The Company shall have no obligation to file a Registration Statement
pursuant to this Section earlier than 180 days after the effective date of a
prior registration statement of the Company covering an underwritten public
offering for the account of the Company the effective date of which is after the
first anniversary of the Closing Date if (1) the Company shall have offered
pursuant to Section 4 to include the Holders' Registrable Securities in such
Registration Statement; (2) the Holders shall not have elected to include in
such Registration Statement at least thirty (30) percent of the Registrable
Securities; and (3) no Registrable Securities requested to be included in such
registration statement shall have been excluded therefrom pursuant to Section
4(c).
(f) The Holders of a majority of Registrable Securities requested to be
included in any offering pursuant to this Section may elect by written notice to
the Company not to proceed with the offering, in which case the Company shall
not be obligated to proceed with such offering. If the Holders so elect, the
Holders that shall have requested Registrable Securities to be included in the
offering shall pay all Registration Expenses incurred by the Company in
connection with such offering prior to receipt of such notice.
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(g) Neither the Company nor any other Person shall be entitled to include
any securities held by it in any underwritten offering pursuant to this Section,
unless all Registrable Securities for which inclusion has been requested are
also included.
(h) No registration of Registrable Securities under this Section shall
relieve the Company of its obligation to effect registrations of Registrable
Securities pursuant to Sections 3 and 4.
Section 3. Shelf Registrations.
(a) At any time on or after the first anniversary of the Closing Date, and
before the tenth anniversary of the Closing Date, the Holder or Holders of
thirty (30) percent or more of the Registrable Securities may (by written notice
to the Company) require registration of all or any portion of such Registrable
Securities for sale in open market transactions or negotiated block trades.
Within ten Business Days after its receipt of such notice, the Company shall
give written notice of such request to all other Holders, and all such Holders
shall have the right to have any or all Registrable Securities owned by them
included in the requested registration as they shall specify in a written notice
received by the Company within ten Business Days after the Company's notice is
given. Within ten Business Days after the expiration of such ten Business Day
period, the Company shall notify all Holders requesting inclusion of Registrable
Securities in the requested registration of the aggregate number of Registrable
Securities proposed to be included by all Holders in this registration.
(b) If any request for registration shall have been made pursuant to
subsection (a) the Company shall prepare and file a Registration Statement with
the SEC as promptly as reasonably practicable, but in any event within 45 days
after the expiration of the ten Business Day period within which the Holders may
request inclusion in the registration.
(c) The Company shall have no obligation to file a Registration Statement
pursuant to this Section earlier than 180 days after the effective date of any
earlier Registration Statement filed pursuant to this Section.
(d) The Holders of a majority of Registrable Securities requested to be
included in any registration pursuant to this Section may elect by written
notice to the Company not to proceed with such registration, in which case the
Company will not be obligated to proceed therewith. If the Holders so elect, the
Holders that shall have requested Registrable Securities to be included in the
registration shall pay all Registration Expenses incurred by the Company in
connection with such offering prior to receipt of such notice.
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(e) No registration of Registrable Securities under this Section shall
relieve the Company of its obligation to effect registrations of Registrable
Securities under Sections 2 and 4.
Section 4. Incidental Registration.
(a) From and after the first anniversary of the Closing Date, and before
the tenth anniversary of the Closing Date, if the Company proposes, other than
pursuant to Section 2 or 3 of this Agreement, to file a Registration Statement
under the Securities Act to register any of its Common Shares for public sale
under the Securities Act (whether proposed to be offered for sale by the Company
or by any other Person), it will give prompt written notice (which notice shall
specify the intended method or methods of disposition) to the Holders of its
intention to do so, and upon the written request of any Holder delivered to the
Company within ten Business Days after any such notice (which request shall
specify the number of Registrable Securities intended to be disposed of by such
Holder), the Company will use commercially reasonable efforts to include in such
Registration Statement all Registrable Securities which the Company has been so
requested to register by the Holders.
(b) If at any time prior to the effective date of any Registration
Statement described in subsection (a), the Company shall determine for any
reason not to proceed with such registration, the Company may, at its election,
give written notice of such determination to the Holders requesting registration
and thereupon the Company shall be relieved of its obligation to register such
Registrable Securities in connection with such registration.
(c) The Company will not be required to effect any registration of
Registrable Securities pursuant to this Section in connection with an offering
of securities solely for the account of the Company if the Company shall have
been advised in writing (with a copy to the Holders requesting registration) by
a nationally recognized investment banking firm (which may be the managing
underwriter for the offering) selected by the Company that, in such firm's
opinion, registration of Registrable Securities and of any other securities
requested to be included in such registration by Persons having rights to
include securities therein at that time may interfere with an orderly sale and
distribution of the securities being sold by the Company in such offering or
adversely affect the price of such securities; but if an offering of less than
all of the Registrable Securities requested to be registered by the Holders and
other securities requested to be included in such registration by such other
Persons would not, in the opinion of such firm, adversely affect the
distribution or price of the securities to be sold by the Company in the
offering, the aggregate number of Registrable Securities requested to be
included in such offering by the Holders shall be reduced pro rata in accordance
with the proportion that the number of shares
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proposed to be included in such registration by the Holders bears to the number
of shares proposed to be included in such registration by the Holders and all
other such Persons.
(d) The Company shall not be required to give notice of, or effect any
registration of Registrable Securities under this Section incidental to, the
registration of any of its securities in connection with mergers,
consolidations, acquisitions, exchange offers, subscription offers, dividend
reinvestment plans or stock options or other employee benefit or compensation
plans.
(e) No registration of Registrable Securities effected under this Section
shall relieve the Company of its obligations to effect registrations of
Registrable Securities pursuant to Sections 2 and 3.
Section 5. Holdbacks and Other Transfer Restrictions.
(a) No Holder shall, if requested by the managing underwriter in an
underwritten offering: (1) that includes such Holder's Registrable Securities,
effect any public sale or distribution of securities of the Company of the same
class as the securities included in such Registration Statement (or convertible
into such class), including a sale pursuant to Rule 144(k) under the Securities
Act effect (except as part of such underwritten registration) any public sale or
distribution of securities of the Company of the same class as the securities
included in such Registration Statement (or convertible into such class),
including a sale pursuant to Rule 144(k) under the Securities Act during the ten
day period prior to, and during the 180-day period beginning on the closing date
of each underwritten offering made pursuant to such Registration Statement, to
the extent timely notified in writing by the Company or the managing
underwriter; and (2) in the event of an offering for the account of the Company,
to the extent Holder does not elect (or is not permitted under Section 4(c)) to
sell such securities in connection with such offering, effect any public sale or
distribution of securities of the Company of the same class as the securities
included in such Registration Statement (or convertible into such class),
including a sale pursuant to Rule 144(k) under the Securities Act during the
period of distribution of the Company's securities in such offering and during
the period in which the underwriting syndicate, if any, participates in the
aftermarket. In any such case the Company shall require the managing underwriter
to notify the Company and the Company, in turn, shall notify all Holders of
Registrable Securities included in the offering promptly after such
participation ceases. If the Company or such managing underwriter so requests,
each Holder shall enter into an agreement reflecting such restrictions.
(b) No Holder shall, during any period in which any of its Registrable
Securities are included in any effective Registration Statement, (1) effect any
stabilization transactions or engage in
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any stabilization activity in connection with the Common Shares or other equity
securities of the Company in contravention of Regulation M under the Exchange
Act; (2) permit any Affiliated Purchaser (as that term is defined in Rule 100(b)
of Regulation M under the Exchange Act) to bid for or purchase for any account
in which such Holder has a beneficial interest, or attempt to induce any other
person to purchase, any Common Shares or Registrable Securities in contravention
of Regulation M under the Exchange Act; or (3) offer or agree to pay, directly
or indirectly, to anyone any compensation for soliciting another to purchase, or
for purchasing (other than for such Holder's own account), any securities of the
Company on a national securities exchange in contravention of Regulation M under
the Exchange Act.
(c) Each Holder shall, in the case of a registration including Registrable
Securities to be offered by it for sale through brokers transactions, furnish
each broker through whom such Holder offers Registrable Securities such number
of copies of the prospectus as the broker may require and otherwise comply with
the prospectus delivery requirements under the Securities Act.
Section 6. Registration Procedures. If and whenever the Company is required
by the provisions of this Agreement to effect a registration of Registrable
Securities:
(a) The Company will use commercially reasonable efforts to prepare and
file with the SEC, within the time periods specified herein, a Registration
Statement on Form S-3 or its equivalent (or on such other registration form
available to the Company that permits the greatest extent of incorporation by
reference of materials filed by the Company, under the Exchange Act), and will
use commercially reasonable efforts to cause such registration statement to
become effective as promptly as practicable thereafter and to remain effective
under the Securities Act until (1) the earlier of such time as all securities
covered thereby have been disposed of pursuant to such Registration Statement or
180 days after such Registration Statement becomes effective, in the case of
registrations pursuant to Section 2, or (2) 90 days after such Registration
Statement becomes effective, in the case of registrations pursuant to Section 3,
in every case as any such period may be extended pursuant to subsection (h) or
Section 8.
(b) The Company will prepare and file with the SEC such amendments,
post-effective amendments and supplements to such Registration Statement and the
prospectus used in connection therewith as may be necessary to keep such
Registration Statement effective for such period of time required by subsection
(a), as such period may be extended pursuant to subsection (h) or Section 8.
(c) The Company will comply in all material respects with the provisions of
the Securities Act with respect to the disposition of all securities covered by
such Registration
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Statement during the period during which any such Registration Statement is
required to be effective.
(d) The Company will furnish to any Holder and any underwriter of
Registrable Securities (1) such number of copies (including manually executed
and conformed copies) of such Registration Statement and of each amendment
thereof and supplement thereto (including all annexes, appendices, schedules and
exhibits), (2) such number of copies of the prospectus used in connection with
such Registration Statement (including each preliminary prospectus, any summary
prospectus and the final prospectus and including prospectus supplements), and
(3) such number of copies of other documents, in each case as the Holder or such
underwriter may reasonably request.
(e) The Company will use commercially reasonable efforts to register or
qualify all Registrable Securities covered by such Registration Statement under
the securities or "blue sky" laws of states of the United States and any other
jurisdiction as any Holder or any underwriter shall reasonably request, and do
any and all other acts and things which may be reasonably requested by such
Holder or such underwriter to consummate the offering and disposition of
Registrable Securities in such jurisdictions; but the Company shall not be
required to qualify generally to do business as a foreign corporation or as a
dealer in securities, subject itself to taxation, or consent to general service
of process in any jurisdiction wherein it is not then so qualified or subject.
(f) The Company will use, as soon as practicable after the effectiveness of
the Registration Statement, commercially reasonable efforts to cause the
Registrable Securities covered by such Registration Statement to be registered
with, or approved by, such other United States and Bermuda public, governmental
or regulatory authorities, if any, as may be required in connection with the
disposition of such Registrable Securities.
(g) The Company will use commercially reasonable efforts to list the
Registrable Securities covered by such Registration Statement on any securities
exchange (or if applicable, the Nasdaq National Market System) on which any
securities of the Company are then listed, if the listing of such Registrable
Securities is then permitted under the applicable rules of such exchange (or if
applicable, the Nasdaq National Market System).
(h) The Company will notify each Holder as promptly as practicable and, if
requested by any Holder, confirm such notification in writing, (1) when a
prospectus or any prospectus supplement has been filed with the SEC, and when a
Registration Statement or any post-effective amendment thereto has been filed
with and declared effective by the SEC, (2) of the issuance by the SEC of any
stop order or the coming to its knowledge of the initiation of any proceedings
for that purpose, (3) of the receipt by the Company of any notification with
respect to the
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suspension of the qualification of any of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose, (4) of the occurrence of any event which requires the making of any
changes to a Registration Statement or related prospectus so that such documents
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading (and the Company shall promptly prepare and furnish to each Holder a
reasonable number of copies of a supplemented or amended prospectus such that,
as thereafter delivered to the purchasers of such Registrable Securities, such
prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they are made, not
misleading), and (5) of the Company's determination that the filing of a
post-effective amendment to a Registration Statement shall be necessary or
appropriate. Upon the receipt of any notice from the Company of the occurrence
of any event of the kind described in clause (4), the Holders shall forthwith
discontinue any offer and disposition of Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until all Holders
shall have received copies of a supplemented or amended prospectus which is no
longer defective and, if so directed by the Company, shall deliver to the
Company all copies (other than permanent file copies) of the defective
prospectus covering such Registrable Securities which are then in the Holders'
possession. If the Company shall provide any notice of the type referred to in
the preceding sentence, the period during which the Registration Statement is
required by subsection (a) to be effective shall be extended by the number of
days from and including the date such notice is provided, to and including the
date when the Holders shall have received copies of the corrected prospectus.
(i) The Company will enter into such agreements and take such other
appropriate actions as are customary and reasonably necessary to expedite or
facilitate the disposition of such Registrable Securities (including, without
limitation, making its management available to the extent reasonably requested
by the Holders to participate in marketing presentations to potential investors
in connection with any underwritten offering), and in that regard, will deliver
to the Holders such documents and certificates as may be reasonably requested by
the Holders of a majority of the Registrable Securities being sold or, as
applicable, the managing underwriters, to evidence the Company's compliance with
this Agreement, including, in the case of any underwritten offering, using
commercially reasonable efforts to cause its independent accountants to deliver
to the managing underwriters an accountants' comfort letter substantially
similar to that in scope delivered in an underwritten public offering and
covering audited and interim financial statements included in the registration
statement, or if such letter can not be obtained
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through the exercise of commercially reasonable efforts, cause its independent
accountants to deliver to the managing underwriters a comfort letter based on
negotiated procedures providing comfort with respect to the Company's financial
statements included or incorporated by reference in the registration statement
at the highest level permitted to be given by such accountants under the then
applicable standards of the American Institute of Certified Public Accountants
with respect to such Registration Statement.
Section 7. Underwriting.
(a) If requested by the underwriters for any underwritten offering of
Registrable Securities pursuant to a registration under Section 2, the Company
will enter into and perform its obligations under an underwriting agreement with
the underwriters for such offering, such agreement to contain such
representations and warranties by the Company and such other terms and
provisions as are customarily contained in underwriting agreements with respect
to secondary distributions, including, without limitation, customary provisions
relating to indemnities and contribution and the provision of opinions of
counsel and accountants' comfort letters. If Registrable Securities are to be
distributed by such underwriters on behalf of any Holder, such Holder shall also
be a party to any such underwriting agreement.
(b) If any registration pursuant to Section 4 shall involve an underwritten
offering, the Company may require Registrable Securities requested to be
registered pursuant to Section 4 to be included in such underwriting on the same
terms and conditions as shall be applicable to the securities being sold through
underwriters under such registration. In such case, each Holder requesting
registration shall be a party to any such underwriting agreement. Such agreement
shall contain such representations and warranties by the Holders requesting
registration and such other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions, including,
without limitation, provisions relating to indemnities and contribution (it
being understood that each Holder shall not be required to make any
representation concerning the Company or its business or to indemnify or
contribute for any liabilities losses or expenses related to any omission or
misstatements in any registration statement or prospectus except to the extent
based upon information provided in writing by the Holder expressly for use
therein).
(c) In any offering of Registrable Securities pursuant to a registration
hereunder, each Holder requesting registration shall also enter into such
additional or other agreements as may be customary in such transactions, which
agreements may contain, among other provisions, such representations and
warranties as the Company or the underwriters of such offering may reasonably
request (including, without limitation, those concerning such Holder, its
Registrable Securities, such Holder's intended plan
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of distribution and any other information supplied by it to the Company for use
in such registration statement), and customary provisions relating to
indemnities and contribution (it being understood that each Holder shall not be
required to make any representation concerning the Company or its business or to
indemnify or contribute for any liabilities losses or expenses related to any
omission or misstatements in any registration statement or prospectus except to
the extent based upon information provided in writing by the Holder expressly
for use therein).
Section 8. Information Blackout.
(a) At any time when a Registration Statement is effective, upon written
notice from the Company to the Holders that the Company has determined in good
faith that sale of Registrable Securities pursuant to the Registration Statement
would require disclosure of non-public material information, the disclosure of
which would have a material adverse effect on the Company, all Holders shall
suspend sales of Registrable Securities pursuant to such Registration Statement
until the earlier of (1) 20 days after the Company notifies the Holders of such
good faith determination, and (2) such time as the Company notifies the Holders
that such material information has been disclosed to the public or has ceased to
be material or that sales pursuant to such Registration Statement may otherwise
be resumed (the number of days from such suspension of sales by the Holders
until the day when such sales may be resumed hereunder is hereinafter called a
"Sales Blackout Period").
(b) The time period set forth in Section 6(a)(1) or (2) shall be extended
for a number of days equal to the number of days in the Sales Blackout Period.
(c) No Sales Blackout Period shall be commenced by the Company within 90
days after the end of a Sales Blackout Period.
Section 9. Rule 144. The Company shall take all actions reasonably
necessary to comply with the filing requirements described in Rule 144(c)(1)
under the Securities Act so as to enable the Holders to sell Registrable
Securities without registration under the Securities Act. Upon the written
request of any Holder, the Company will deliver to such Holder a written
statement as to whether it has complied with the filing requirements under such
Rule 144(c)(1).
Section 10. Preparation; Reasonable Investigation; Information. In
connection with the preparation and filing of each Registration Statement
registering Registrable Securities under the Securities Act, (a) the Company
will give the Holders and the underwriters, if any, and their respective counsel
and accountants, drafts of such registration statement for their review and
comment prior to filing and (during normal business hours and subject to such
reasonable limitations as the Company
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may impose to prevent disruption of its business) such reasonable and customary
access to its books and records and such opportunities to discuss the business
of the Company with its officers and the independent public accountants who have
certified its financial statements as shall be necessary, in the reasonable
opinion of the Holders of a majority of the Registrable Securities being
registered and such underwriters or their respective counsel, to conduct a
reasonable investigation within the meaning of the Securities Act and (b) as a
condition precedent to including any Registrable Securities of any Holder in any
such registration, the Company may require such Holder to furnish the Company
such information regarding such Holder and the distribution of such securities
as the Company may from time to time reasonably request in writing or as shall
be required by law or the SEC in connection with any registration.
Section 11. Indemnification and Contribution.
(a) In the case of each offering of Registrable Securities made pursuant to
this Agreement, the Company shall, to the extent permitted by applicable law,
indemnify and hold harmless each Holder, its officers and directors, each
underwriter of Registrable Securities so offered and each Person, if any, who
controls any of the foregoing persons within the meaning of the Securities Act
("Holder Indemnitees"), from and against any and all claims, liabilities,
losses, damages, expenses and judgments, joint or several, to which they or any
of them may become subject, including any amount paid in settlement of any
litigation commenced or threatened, and shall promptly reimburse them, as and
when incurred, for any legal or other expenses incurred by them in connection
with investigating any claims and defending any actions, insofar as such losses,
claims, damages, liabilities or actions shall arise out of, or shall be based
upon, any violation or alleged violation by the Company of the Securities Act,
any blue sky laws, securities laws or other applicable laws of any state or
country in which the Registrable Securities are offered, and relating to action
taken or action or inaction required of the Company in connection with such
offering, or shall arise out of, or shall be based upon, any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or in any preliminary or final prospectus included therein) relating
to the offering and sale of such Registrable Securities, or any amendment
thereof or supplement thereto, or in any document incorporated by reference
therein, or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; but the Company shall not be liable to any Holder Indemnitee in any
such case to the extent that any such loss, claim, damage, liability or action
arises out of, or is based upon, any untrue statement or alleged untrue
statement, or any omission or alleged omission, if such statement or omission
shall have been made in reliance upon and in conformity with information
furnished to the Company in writing by or on behalf of such Holder specifically
for use in the
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preparation of the Registration Statement (or in any preliminary or final
prospectus included therein), or any amendment thereof or supplement thereto.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of any Holder and shall survive the transfer
of such securities. The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to any Holder Indemnitee.
(b) In the case of each offering of Registrable Securities made pursuant to
this Agreement, each Holder, shall, to the extent permitted by applicable law,
indemnify and hold harmless the Company, its officers and directors and each
person, if any, who controls any of the foregoing within the meaning of the
Securities Act (the "Company Indemnitees"), from and against any and all claims,
liabilities, losses, damages, expenses and judgments joint or several, to which
they or any of them may become subject, including any amount paid in settlement
of any litigation commenced or threatened, and shall promptly reimburse them, as
and when incurred, for any legal or other expenses incurred by them in
connection with investigating any claims and defending any actions, insofar as
any such losses, claims, damages, liabilities or actions shall arise out of, or
shall be based upon, any violation by such Holder of the Securities Act, any
blue sky laws, securities laws or other applicable laws of any state or country
in which the Registrable Securities are offered and relating to action taken or
action or inaction required of such Holder in connection with such offering, or
shall arise out of, or shall be based upon, any untrue statement of a material
fact contained in the Registration Statement (or in any preliminary or final
prospectus included therein) relating to the offering and sale of such
Registrable Securities or any amendment thereof or supplement thereto, or any
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but in each case only
to the extent that such untrue statement is contained in, or such fact is
omitted from, information furnished in writing to the Company by or on behalf of
such Holder specifically for use in the preparation of such Registration
Statement (or in any preliminary or final prospectus included therein). Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of any Company Indemnitee. In no event shall the liability
of a Holder hereunder or under Section 11(d) be greater in amount than the
dollar amount of the net proceeds received by it upon the sale of Registrable
Securities pursuant to such offering. The foregoing indemnity is in addition to
any liability which Holder may otherwise have to any Company Indemnitee.
(c) In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to this Section 11, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing, but the failure to give such
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notice shall not relieve the indemnifying party or parties from any liability
which it or they may have to the indemnified party. In case any such proceeding
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party and
shall pay as incurred the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel at its own expense. Notwithstanding the foregoing, the
indemnifying party shall pay as incurred the fees and expenses of the counsel
retained by the indemnified party in the event (1) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (2) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would-be inappropriate due to
actual or potential differing interests between them. The indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm for all such indemnified parties. Such firm shall be designated in
writing by the Holders of a majority of the Registrable Securities disposed
under the applicable Registration Statements in the case of Holder Indemnitees
and by the Company in the case of Company Indemnitees. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent but if settled with such consent or if there be a final judgment
for the plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested the indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by this Section, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without the indemnifying party's written consent if (i) such
settlement is entered into more than thirty (30) days after receipt by the
indemnifying party of the aforesaid request, and (ii) the indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
consent of the indemnified party, which consent shall not be unreasonably
withheld, consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
to such claim or litigation or which requires action other than the payment of
money by the indemnifying party.
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(d) If the indemnification provided for in this Section 11 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) in respect of any losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to therein, or if the indemnified party
failed to give the notice required under subsection (c) and the indemnified
party is actually prejudiced by such failure, then each indemnifying party
shall, to the extent permitted by applicable law, contribute to the amount paid
or payable by the indemnified party as a result of such losses, claims, damages
or liabilities (or actions or proceedings in respect thereof) in such proportion
as is appropriate to reflect not only both the relative benefits received by
such party (as compared to the benefits received by all other parties) from the
offering in respect of which indemnity is sought, but also the relative fault of
all parties in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by a party shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by it bear to the total amounts received by each other party.
Relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties agree
that it would not be just and equitable if contributions pursuant to this
subsection (d) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to above shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(e) Notwithstanding any other provision of this Section 11, the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or expense arises out of or is based upon an untrue statement
or alleged untrue statement of any material fact contained in any such
registration statement, preliminary prospectus, final prospectus or summary
prospectus contained therein or any omission to state therein a material fact
required to be stated therein or necessary to make the statements therein in
light of the circumstances in which they were made not misleading in a
prospectus or prospectus
16
supplement, if such untrue statement or omission is completely corrected in an
amendment or supplement to such prospectus or prospectus supplement, the seller
of the Registrable Securities has an obligation under the Securities Act to
deliver a prospectus or prospectus supplement in connection with such sale of
Registrable Securities and the seller of Registrable Securities thereafter fails
to deliver such prospectus or prospectus supplement as so amended or
supplemented prior to or concurrently with the sale of Registrable Securities to
the person asserting such loss, claim, damage or liability after the Company has
furnished such seller with a sufficient number of copies of the same.
Section 12. Expenses. In connection with any registration under this
Agreement the Company shall pay all Registration Expenses (to the extent not
borne by underwriters or others), except as provided in Section 2(f) or 3(d),
and each Holder shall pay its pro rata share of the items described in clause
(i) of the definition of "Registration Expenses" in Section 1.
Section 13. Notices. Except as otherwise provided below, whenever it is
provided in this Agreement that any notice, demand, request, consent, approval,
declaration or other communication shall or may be given to or served upon any
of the parties hereto, or whenever any of the parties hereto, wishes to provide
to or serve upon the other party any other communication with respect to this
Agreement, each such notice, demand, request, consent, approval, declaration or
other communication shall be in writing and shall be delivered in person or sent
by telecopy, as follows: (a) if to a Holder, at the most current address given
by such Holder to the Company by means of a notice given in accordance with the
provisions of this Section 13, and with respect to all other holders is as set
forth in the register for the Registrable Securities; and (b) if to the Company,
initially at the Company's principal address and thereafter at such other
address, notice of which is given in accordance with the provisions of this
Section 13. The furnishing of any notice required hereunder may be waived in
writing by the party entitled to receive such notice. Every notice, demand,
request, consent, approval, declaration or other communication hereunder shall
be deemed to have been duly furnished or served on the party to which it is
addressed, in the case of delivery in person or by telecopy, on the date when
sent (with receipt personally acknowledged in the case of telecopied notice) ,
and in all other cases, five business days after it is sent. Failure or delay in
delivering copies of any notice, demand, request, consent, approval, declaration
or other communication to the persons designated above to receive copies shall
in no way adversely affect the effectiveness of such notice, demand, request,
consent, approval, declaration or other communication.
Section 14. Entire Agreement. This Agreement represents the entire
agreement and understanding among the parties hereto with respect to the subject
matter hereof and supersedes any and
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all prior oral and written agreements, arrangements and understandings among the
parties hereto with respect to such subject matter; and this Agreement can be
amended, supplemented or changed, and any provision hereof can be waived or a
departure from any provision hereof can be consented to, only by a written
instrument making specific reference to this Agreement signed by the Company and
the Holders of a majority of the Registrable Securities then outstanding, but if
by less than all Holders, then only to the extent such amendment, supplement or
change does not adversely affect the rights of any Holder which is not a party
thereto.
Section 15. Headings. The section headings contained in this Agreement are
for general reference purposes only and shall not affect in any manner the
meaning, interpretation or construction of the terms or other provisions of this
Agreement.
Section 16. Applicable Law. This Agreement shall be governed by, construed
and enforced in accordance with the laws of New York applicable to contracts to
be made, executed, delivered and performed wholly within such state and, in any
case, without regard to the conflicts of law principles of such state.
Section 17. Severability. If any provision of this Agreement shall be held
by any court of competent jurisdiction to be illegal, void or unenforceable,
such provision shall be of no force and effect, but the illegality or
unenforceability of such provision shall have no effect upon and shall not
impair the enforceability of any other provision of this Agreement.
Section 18. No Waiver. The failure of any party at any time or times to
require performance of any provision hereof shall not affect the right at a
later time to enforce the same. No waiver by any party of any condition, and no
breach of any provision, term, covenant, representation or warranty contained in
this Agreement, whether by conduct or otherwise, in any one or more instances,
shall be deemed to be construed as a further or continuing waiver of any such
condition or of the breach of any other provision, term, covenant,
representation or warranty of this Agreement.
Section 19. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same original instrument. Not all
parties need sign the same counterpart. Delivery by facsimile of a signature
page to this Agreement shall have the same effect or delivery of an original
executed counterpart.
Section 20. 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
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assignment, subsequent Holders; but nothing herein shall be deemed to permit any
assignment, transfer or other disposition of Registrable Securities in violation
of applicable law. If any Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities such Holder shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement, including the restrictions on resale set forth in this
Agreement, and such Holder shall be entitled to receive the benefits hereof.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered as of
the date first above written.
ANNUITY AND LIFE RE (HOLDINGS), LTD.
By /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: President and Chief
Executive Officer
EXEL LIMITED
By /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: SVP & General Counsel
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