EXHIBIT 10.2
EXECUTION
SOUTHWESTERN LIFE HOLDINGS, INC.
REGISTRATION AGREEMENT
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THIS REGISTRATION AGREEMENT, dated as of June 13, 2000 (this
"Agreement"), is made by and among Southwestern Life Holdings, Inc. (f/k/a
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PennCorp Financial Group, Inc.), a Delaware corporation, (the "Company"),
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Inverness/Phoenix Partners, LP ("Inverness Fund"), Executive Capital Partners I,
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L.P. ("Executive Fund"), Xxxxxxx Xxxxxxxx ("Xxxxxxxx"), SLM Investment, L.P.
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("SLM"), Xxxxxx Xxxxxx Investment, Ltd. ("Xxxxxx Xxxxxx"), JTS Family Limited
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Partnership #14 ("JTS"), Xxxx X. Xxxxxx ("Xxxxxx") and Xxxxx X. Xxxxxxx
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("Xxxxxxx"). Inverness Fund and Executive Fund are referred to herein
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collectively as the "Inverness Holders" and individually as a "Inverness
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Holder". SLM, Xxxxxx Xxxxxx, JTS and Xxxxxx are referred to herein collectively
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as the "Xxxxxx Holders" and individually as a "Xxxxxx Holder". Except as
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otherwise indicated, capitalized terms used herein are defined in Section 8
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hereof.
The United States Bankruptcy Court, District of Delaware, has
confirmed the Joint Plan of Reorganization of PennCorp Financial Group, Inc. and
the Ad Hoc Committee of Preferred Stockholders under Chapter 11 of the
Bankruptcy Code (the "Plan") pursuant to which the Company will reconstitute its
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capital structure through the repayment of certain of its outstanding debt
obligations, exchange its existing preferred stock for Common Stock (as defined
herein), incur new debt obligations and sell newly-issued Common Stock on the
terms and subject to the conditions set forth in the Plan (the
"Recapitalization").
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In connection with the Recapitalization, (i) the Inverness Holders,
Vicuna Advisors LLC ("Vicuna") and the Company entered into a Standby Commitment
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Letter dated March 22, 2000 (the "Standby Commitment Letter") pursuant to which
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the Inverness Holders and Vicuna agreed to purchase shares of Common Stock not
otherwise purchased by holders of Rights pursuant to the Rights Offering (as
defined in the Plan), (ii) Xxxxxxxx and the Xxxxxx Holders entered into a
Subscription Agreement dated as of the date hereof (the "Subscription
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Agreement") pursuant to which Xxxxxxxx and the Xxxxxx Holders agreed to purchase
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shares of Common Stock and (iii) Xxxxxxx entered into an Executive Stock and
Employment Agreement dated as of the date hereof (the "Xxxxxxx Agreement").
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The parties hereto agree as follows:
Section 1. Demand Registrations.
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(a) Requests for Registration. At anytime after six months from the
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date hereof, and from time to time, after the date hereof, each of the holders
of a majority of the Inverness Registrable Securities, holders of a majority of
the Xxxxxxxx Registrable Securities and holders of a majority of the Xxxxxx
Registrable Securities may request one registration under the Securities Act
of all or any portion of its Registrable Securities on Form S-1 or any similar
long-form registration ("Long-Form Registrations"). In addition to the Long-
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Form Registrations provided pursuant to this Section 1(a), any holder of
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Registrable Securities then outstanding may request unlimited registrations
under the Securities Act of all or any portion of their Registrable Securities
on Form S-3 or any similar short-form registration ("Short-Form Registrations").
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All registrations requested pursuant to this Section 1(a) are referred to herein
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as "Demand Registrations".
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All requests for Demand Registrations shall be made by giving written
notice to the Company (the "Demand Notice"). Each Demand Notice shall specify
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the approximate number of Registrable Securities requested to be registered and
the anticipated per share price range for such offering. Within ten days after
receipt of any Demand Notice, the Company shall give written notice of such
requested registration to all other holders of Registrable Securities and,
subject to the provisions of Section 1(d) below, shall include in such
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registration all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 15 days after the receipt
of the Company's notice.
(b) Expenses; Withdrawal. The Company shall pay all Registration
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Expenses of all holders of Registrable Securities in all Demand Registrations.
A registration shall not count as the permitted Long-Form Registration until
both (i) it has become effective and (ii) the holders requesting such
registration are able to register and sell at least 75% of the Registrable
Securities requested to be included in such registration; provided that the
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Company shall in any event pay all Registration Expenses in connection with any
registration initiated as a Demand Registration whether or not it has become
effective and whether or not such registration has counted as the permitted
Long-Form Registrations. All Long-Form Registrations shall be underwritten
registrations unless otherwise requested by the holders of a majority of the
Registrable Securities included in the applicable Long-Form Registration.
(c) Short-Form Registrations. Demand Registrations shall be Short-
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Form Registrations whenever the Company is permitted to use any applicable short
form, and the Company will use its best efforts to make Short-Form Registrations
on Form S-3 (or any successor form) available for the sale of Registrable
Securities.
(d) Priority on Demand Registrations. The Company shall not include
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in any Demand Registration any securities which are not Registrable Securities
without the prior written consent of the holders of a majority of the
Registrable Securities. If a Demand Registration is an underwritten offering
and the managing underwriters advise the Company in writing that in their
opinion the number of Registrable Securities and, if permitted hereunder, other
securities requested to be included in such offering exceeds the number of
Registrable Securities and other securities, if any, which can be sold in an
orderly manner in such offering within a price range acceptable to the holders
initiating such registration, the Company will include in such registration only
the number of securities which can be sold in the following order of priorities:
(1) first, the Registrable Securities that the holders of Registrable Securities
and their respective affiliates have requested to be included in such
registration (pro rata according to the Registrable Securities proposed to be
included in the
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registration by such holders) and (2) second, securities held by all other
parties (pro rata according to the securities proposed to be included in the
registration by such other parties).
(e) Selection of Underwriters. The Company will have the right to
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select the investment banker(s) and manager(s) to administer the offering.
(f) Other Registration Rights. As of the date hereof, there are no
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agreements with any holder or prospective holder of any securities of the
Company giving such holder or prospective holder any registration rights the
terms of which are senior or pari passu with any rights granted to the
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Purchasers under this Agreement. From and after the date of this Agreement, the
Company shall not, without the prior written consent of holders of a majority of
the Registrable Securities, enter into any agreement with any holder or
prospective holder of any securities of the Company giving such holder or
prospective holder any registration rights the terms of which are senior or pari
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passu with the registration rights granted hereunder or to require the Company
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to effect a registration earlier than the date on which the holders of
Registrable Securities can first require a registration hereunder.
Section 2. Piggyback Registrations.
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(a) Right to Piggyback. Whenever the Company proposes to register any
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of its securities (including any proposed registration of the Company's
securities by any third party) under the Securities Act (other than (i) pursuant
to a Demand Registration or (iii) pursuant to a registration on Form S-4 or S-8
or any successor or similar forms) and the registration form to be used may be
used for the registration of Registrable Securities (a "Piggyback
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Registration"), whether or not for sale for its own account, the Company will
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give prompt written notice to all holders of Registrable Securities of its
intention to effect such a registration and will include in such registration
all Registrable Securities with respect to which the Company has received
written requests for inclusion therein within 15 days after the receipt of the
Company's notice.
(b) Piggyback Expense. The Registration Expenses of the holders of
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Registrable Securities will be paid by the Company in all Piggyback
Registrations.
(c) Priority on Primary Registration. If a Piggyback Registration is
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an underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing (with a copy to each party hereto
requesting registration of Registrable Securities) that in their opinion the
number of securities requested to be included in such registration exceeds the
number which can be sold in such offering without adversely affecting the
marketability of such offering, the Company will include in such registration
(i) first, the securities the Company proposes to sell, (ii) second, the
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Registrable Securities requested to be included in such registration, pro rata
among the holders of such Registrable Securities on the basis of the number of
shares owned by each such holder, and (iii) third, other securities requested to
be included in such registration pro rata among the holders of such securities.
(d) Priority on Secondary Registrations. If a Piggyback Registration
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is an underwritten secondary registration on behalf of holders of the Company's
securities (other than the
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parties hereto) who have been granted contractual demand registration rights,
and the managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such registration
exceeds the number which can be sold in such offering without adversely
affecting the marketability of the offering, the Company will include in such
registration (i) first, the securities requested to be included
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therein by the holders requesting such registration and the Registrable
Securities requested to be included in such registration, pro rata among the
holders of such securities on the basis of the number of shares owned by each
such holder, and (ii) second, other securities requested to be included in such
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registration pro rata among the holders of such securities.
(e) Other Registrations. If the Company has previously filed a
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registration statement with respect to Registrable Securities pursuant to
Section 1 or pursuant to this Section 2, and if such previous registration has
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not been withdrawn or abandoned, the Company will not file or cause to be
effected any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (except on Form S-4 or S-8 or any successor form), whether on
its own behalf or at the request of any holder or holders of such securities,
without the prior written consent of the holders of a majority of the
Registrable Securities, until a period of at least six months has elapsed from
the effective date of such previous registration.
Section 3. Registration Expenses.
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(a) All expenses incident to the Company's performance of or
compliance with Section 1 or Section 2, including, without limitation, all
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registration and filing fees, fees and expenses of compliance with securities or
blue sky laws, printing expenses, messenger and delivery expenses, and fees and
disbursements of counsel for the Company and all independent certified public
accountants, underwriters (excluding discounts and commissions) and other
Persons retained by the Company (all such expenses being herein called
"Registration Expenses"), will be borne as provided in this Agreement, except
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that the Company will, in any event, pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit or
quarterly review, the expense of any liability insurance and the expenses and
fees for listing the securities to be registered on each securities exchange on
which similar securities issued by the Company are then listed or on the NASD
automated quotation system.
(b) In connection with each Demand Registration and each Piggyback
Registration, the Company will reimburse the holders of Registrable Securities
covered by such registration for the reasonable fees and disbursements of one
counsel chosen by the holders of a majority of the Registrable Securities
included in such registration.
(c) To the extent Registration Expenses are not required to be paid
by the Company, each holder of securities included in any registration hereunder
will pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration
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Expenses not so allocable will be borne by all sellers of securities included in
such registration in proportion to the aggregate selling price of the securities
to be so registered for each seller.
Section 4. Definitions.
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"Inverness Registrable Securities" means (i) any shares of Common
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Stock issued to the Inverness Holders and its affiliates pursuant to the Standby
Commitment Letter and (ii) any shares of Common Stock issued or issuable
directly or indirectly with respect to the securities referred to in clause (i)
by way of stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization,
including a recapitalization or exchange.
"Xxxxxxx Registrable Securities" means (i) any shares of Common Stock
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issued to Xxxxxxx pursuant to the Xxxxxxx Agreement and (ii) any shares of
Common Stock issued or issuable directly or indirectly with respect to the
securities referred to in clause (i) by way of stock dividend or stock split or
in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization, including a recapitalization or exchange.
"Person" means an individual, a partnership, a joint venture, a
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corporation, a limited liability company, a trust, an unincorporated
organization and a government or any department or agency thereof.
"Xxxxxxxx Registrable Securities" means (i) any shares of Common Stock
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issued to Xxxxxxxx pursuant to the Subscription Agreement or any shares of
Common Stock hereafter held by Xxxxxxxx and (ii) any shares of Common Stock
issued or issuable directly or indirectly with respect to the securities
referred to in clause (i) by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization, including a recapitalization or exchange.
"Registrable Securities" means the Inverness Registrable Securities,
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the Xxxxxxxx Registrable Securities, the Xxxxxx Registrable Securities and the
Xxxxxxx Registrable Securities. As to any particular shares constituting
Registrable Securities, such shares will cease to be Registrable Securities when
they have been (x) effectively registered under the Securities Act and disposed
of in accordance with the registration statement covering them, or (y) sold to
the public through a broker, dealer or market maker pursuant to Rule 144 (or by
similar provision then in force) under the Securities Act.
"Xxxxxx Registrable Securities" means (i) any shares of Common Stock
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issued to the Xxxxxx Holders pursuant to the Subscription Agreement or any
shares of Common Stock hereafter held by any Xxxxxx Holder and (ii) any shares
of Common Stock issued or issuable directly or indirectly with respect to the
securities referred to in clause (i) by way of stock dividend or stock split or
in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization, including a recapitalization or exchange.
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"Securities Act" means the Securities Act of 1933, as amended, or any
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similar federal law then in force.
"Securities and Exchange Commission" includes any governmental body or
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agency succeeding to the functions thereof.
Section 5. Indemnification.
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(a) The Company shall indemnify, to the extent permitted by law, each
holder of Registrable Securities, its officers and directors and each Person who
controls such holder (within the meaning of the Securities Act) against all
losses, claims, damages, liabilities and expenses (including without limitation,
attorney's fees) caused by any untrue or alleged untrue statement of material
fact contained in any registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, except insofar as the same are
contained in any information furnished in writing to the Company by such holder
expressly for use therein or by such holder's failure to deliver a copy of the
registration statement or prospectus or any amendments or supplements thereto
after the Company has furnished such holder with a sufficient number of copies
of the same. In connection with an underwritten offering, the Company shall
indemnify such underwriters, their officers and directors and each Person who
controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the holders
of Registrable Securities.
(b) In connection with any registration statement in which a holder
of Registrable Securities is participating, each such holder will furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the full extent permitted by law, shall indemnify the
Company, its directors and officers and each Person who controls the Company
(within the meaning of the Securities Act) against any losses, claims, damages,
liabilities and expenses resulting from any untrue or alleged untrue statement
of material fact contained in the registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only to the extent
that such untrue statement or omission is contained in any information or
affidavit so furnished in writing by such holder expressly for use in such
registration statement; provided that the obligation to indemnify will be
individual, not joint and several, for each holder and shall be limited to the
net amount of proceeds received by such holder from the sale of Registrable
Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give prompt notice
shall not impair any Person's right to indemnification hereunder to the extent
such failure has not prejudiced the indemnifying party) and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to
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the defense of such claim with counsel reasonably satisfactory to the
indemnified party. If such defense is assumed, the indemnifying party will not
be subject to any liability for any settlement made by the indemnified party
without its consent (but such consent will not be unreasonably withheld). An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to
such claim, unless in the reasonable judgment of any indemnified party a
conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim.
(d) The indemnification provided for under this Agreement shall
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling Person
of such indemnified party and shall survive the transfer of securities. The
Company shall make such provisions, as are reasonably requested by any
indemnified party, for contribution to such party in the event the Company's
indemnification is unavailable for that reason.
Section 6. Miscellaneous.
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(a) No Inconsistent Agreements. The Company shall not hereafter enter
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into any agreement with respect to its securities which is inconsistent with or
violates the rights granted to the holders of Registrable Securities in this
Agreement.
(b) Adjustments Affecting Registrable Securities. The Company shall
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not take any action, or permit any change to occur, with respect to its
securities which would adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement or which would adversely affect the
marketability of such Registrable Securities in any such registration
(including, without limitation, effecting a stock split or a combination of
shares).
(c) Remedies. Any Person having rights under any provision of this
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Agreement shall be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(d) Amendments and Waivers. Except as otherwise provided herein, the
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provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and holders of at least a majority of the
Registrable Securities.
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(e) Successors and Assigns. All covenants and agreements in this
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Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
(f) Severability. Whenever possible, each provision of this Agreement
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will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable under any applicable law or rule in any jurisdiction, such
provision will be ineffective only to the extent of such invalidity, illegality
or unenforceability in such jurisdiction, without invalidating the remainder of
this Agreement in such jurisdiction or any provision hereof in any other
jurisdiction.
(g) Counterparts. This Agreement may be executed simultaneously in
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two or more counterparts (including by means of telecopied signature pages), any
one of which need not contain the signatures of more than one party, but all
such counterparts taken together will constitute one and the same Agreement.
(h) Descriptive Headings. The descriptive headings of this Agreement
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are inserted for convenience only and do not constitute a part of this
Agreement.
(i) Governing Law. All issues concerning the enforceability, validity
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and binding effect of this Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to any
choice of laws or conflict of law provision or rule (whether of the State of
Delaware or any other jurisdiction) that would cause the application of the law
of any jurisdiction other than the State of Delaware.
(j) Notices. All notices, demands or other communications to be given
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or delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when personally delivered or
received by certified mail, return receipt requested, or sent by guaranteed
overnight courier service. Notices, demands and communications will be sent to
each Purchaser at such Purchaser's address as indicated in the Schedule of
Purchasers attached hereto and to the Company at the address indicated below:
Notices to the Company:
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Southwestern Life Holdings, Inc.
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Board of Directors
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With a copy to:
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Xxxxxxxx & Xxxxx
000 X. Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Learner, P.C.
or to such other address or to the attention of such other Person as the
recipient party has specified by prior written notice to the sending party.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Subscription
Agreement on the day and year first above written.
SOUTHWESTERN LIFE HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Its: President and Chief Operating Officer
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INVERNESS/PHOENIX PARTNERS LP
By: /s/ Xxxxx X. Xxxxx, III
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Its: Managing Partner
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EXECUTIVE CAPITAL PARTNERS I, LP
By: /s/ Xxxxx X. Cormis, III
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Its: Managing Partner
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/s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
SLM INVESTMENTS, L.P.
By: /s/ Xxxx X. Xxxxxx
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Its: _____________________________________
XXXXXX XXXXXX INVESTMENTS, LTD.
By: /s/ Xxxx X. Xxxxxx
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Its: _____________________________________
JTS FAMILY LIMITED PARTNERSHIP #14
By: /s/ Xxxx X. Xxxxxx
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Its: _____________________________________
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
