EXHIBIT 10.1
AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT
dated as of
December 31, 2002
among
AXIS CAPITAL HOLDINGS LIMITED
and
SHAREHOLDERS NAMED HEREIN
TABLE OF CONTENTS
PAGE
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ARTICLE 1. Definitions.......................................................................................1
Section 1.1. Definitions.................................................................................1
ARTICLE 2. Tag-along Rights; Preemptive Rights...............................................................5
Section 2.1. Tag-Along Rights............................................................................5
Section 2.2. Additional Conditions to Tag-Along Sales....................................................8
Section 2.3. Preemptive Rights...........................................................................9
ARTICLE 3. Registration Rights..............................................................................10
Section 3.1. Demand Registration........................................................................10
Section 3.2. Piggyback Registration.....................................................................12
Section 3.3. Lock-Up Agreements.........................................................................14
Section 3.4. Registration Procedures....................................................................14
Section 3.5. Indemnification by the Company. ...........................................................17
Section 3.6. Indemnification by Participating Shareholders..............................................18
Section 3.7. Conduct of Indemnification Proceedings.....................................................18
Section 3.8. Contribution...............................................................................19
Section 3.9. Participation in Public Offering...........................................................20
Section 3.10. Other Indemnification......................................................................20
Section 3.11. Cooperation by the Company.................................................................20
ARTICLE 4. Certain Covenants and Agreements.................................................................20
Section 4.1. Confidentiality............................................................................20
Section 4.2. Limitations on Subsequent Registration Rights..............................................22
Section 4.3. Conflicting Agreements.....................................................................22
Section 4.4. Certain Information........................................................................22
Section 4.5. Restrictive Legends........................................................................22
Section 4.6. Regulatory Status..........................................................................23
ARTICLE 5. Miscellaneous....................................................................................23
Section 5.1. Binding Effect; Assignability; Benefit.....................................................23
Section 5.2. Notices....................................................................................24
Section 5.3. Waiver; Amendment; Termination.............................................................24
Section 5.4. Governing Law..............................................................................25
Section 5.5. Jurisdiction...............................................................................25
Section 5.6. Waiver of Jury Trial.......................................................................25
Section 5.7. Specific Enforcement.......................................................................25
Section 5.8. Counterparts; Effectiveness................................................................25
Section 5.9. Entire Agreement...........................................................................25
Section 5.10. Captions...................................................................................26
Section 5.11. Severability...............................................................................26
i
Exhibit A List of Shareholders Subject to Amended and Restated Shareholders'
Agreement as of December 31, 2002
Exhibit B Joinder Agreement
ii
AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT
This AGREEMENT dated as of December 31, 2002 is made among
AXIS Capital
Holdings Limited, a Bermuda corporation (the "COMPANY"), the Persons listed on
Exhibit A attached hereto, and the Persons listed on the signature pages hereof.
W I T N E S S E T H
WHEREAS, the Shareholders have acquired Shares of the Company following
Consummation of the Transaction as defined in that certain Offering Memorandum,
Proxy Statement and Information Circular (the "OFFERING MEMORANDUM"), dated
December 2, 2002 and issued by the Company, AXIS Specialty Limited, a Bermuda
Company ("AXIS SPECIALTY") and AXIS Mergeco Limited;
WHEREAS, the Shareholders and AXIS Specialty were parties to that certain
Shareholders' Agreement, dated as of March 29, 2002 (the "OLD SHAREHOLDERS'
AGREEMENT")
WHEREAS, the parties hereto desire to enter into this Agreement to set
forth certain rights, duties and obligations between them, substantially similar
to those contained in the Old Shareholders' Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements contained
herein, the parties hereto agree as follows:
ARTICLE 1.
DEFINITIONS
Section 1.1. DEFINITIONS.
(a) The following terms, as used herein, have the following
meanings:
"AFFILIATE" means, with respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with such Person,
PROVIDED that no securityholder of the Company shall be deemed an Affiliate of
any other securityholder solely by reason of any investment in the Company. For
the purpose of this definition, the term "CONTROL" (including, with correlative
meanings, the terms "CONTROLLING", "CONTROLLED BY" and "UNDER COMMON CONTROL
WITH"), as used with respect to any Person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of such Person, whether through the ownership of voting securities,
by contract or otherwise.
"AGGREGATE OWNERSHIP" means, with respect to any Shareholder or group of
Shareholders, the total amount of Company Securities "beneficially owned" (as
such term is defined in Rule 13d-3 of the Exchange Act) (without duplication) by
such Shareholder or group of Shareholders as of the date of such calculation,
calculated on a Fully-Diluted basis.
"BOARD" means the board of directors of the Company.
"BUSINESS DAY" means any day except a Saturday, Sunday or other day on
which commercial banks in ▇▇▇▇▇▇▇▇, Bermuda are authorized by law to close.
"BYE-LAWS" means the Bye-laws of the Company, as amended from time to time.
"COMMENCEMENT DATE" means December 31, 2002.
"COMMON STOCK" means the common stock, par value $0.10 per share, of the
Company and any stock into which such common stock may thereafter be converted
or changed.
"COMPANY SECURITIES" means (i) the Common Stock, (ii) securities
convertible into or exchangeable for Common Stock, and (iii) options, warrants
(including the Warrants) or other rights to acquire Common Stock.
"EXCHANGE ACT" means the United States Securities Exchange Act of 1934, as
amended.
"FIRST PUBLIC OFFERING" means the first Public Offering after the date
hereof.
"FULLY-DILUTED" means, with respect to Company Securities, all outstanding
shares and all shares issuable in respect of securities convertible into or
exchangeable for such shares, all stock appreciation rights, options, warrants
(including the Warrants) and other rights to purchase or subscribe for such
Company Securities or securities convertible into or exchangeable for such
Company Securities, PROVIDED that, if any of the foregoing stock appreciation
rights, options, warrants or other rights to purchase or subscribe for such
Company Securities are subject to vesting, the Company Securities subject to
vesting shall be included in the definition of "Fully-Diluted" only upon and to
the extent of such vesting.
"MAJOR INVESTOR" means a Shareholder who beneficially owned 1,000,000 or
more Shares as of the Commencement Date. For the purposes of this definition,
"beneficial ownership" shall include ownership by one or more Affiliates of such
Shareholder.
"NASD" means the United States National Association of Securities Dealers,
Inc.
"PARTICIPATING SHAREHOLDERS" means the Shareholders that participate in any
registration of Registrable Securities pursuant to Section 3.1 or Section 3.2,
including any Requesting Shareholder.
"PERMITTED TRANSFEREE" has the meaning set forth in the Bye-laws.
"PERSON" means an individual, corporation, limited liability company,
partnership, association, trust or other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"PUBLIC OFFERING" means a public offering of Common Stock pursuant to an
effective registration statement under the Securities Act, other than pursuant
to a registration statement on Form S-4 or Form S-8 or any similar or successor
form.
2
"REGISTRABLE SECURITIES" means, at any time, any Shares or Warrants and any
securities issued or issuable in respect of such Shares or Warrants or by way of
conversion, exchange, stock dividend, split or combination, recapitalization,
merger, consolidation, other reorganization or otherwise until (i) a
registration statement covering such Shares or Warrants has been declared
effective by the SEC and such Shares or Warrants have been disposed of pursuant
to such effective registration statement, (ii) such Shares or Warrants are sold
under circumstances in which all of the applicable conditions of Rule 144 are
met or such securities may be sold pursuant to Rule 144(k) (or any similar
provisions then in force) under the Securities Act or (iii) such Shares or
Warrants are otherwise Transferred, the Company has delivered a new certificate
or other evidence of ownership for such Shares or Warrants not bearing the
legend required pursuant to this Agreement and such Shares or Warrants may be
resold without subsequent registration under the Securities Act.
"REGISTRATION EXPENSES" means any and all expenses incident to the
performance of or compliance with any registration or marketing of securities,
including all (i) registration and filing fees, and all other fees and expenses
payable in connection with the listing of securities on any securities exchange
or automated interdealer quotation system, (ii) fees and expenses of compliance
with any securities or "blue sky" laws (including reasonable fees and
disbursements of counsel in connection with "blue sky" qualifications of the
securities registered), (iii) expenses in connection with the preparation,
printing, mailing and delivery of any registration statements, prospectuses and
other documents in connection therewith and any amendments or supplements
thereto, (iv) security engraving and printing expenses, (v) internal expenses of
the Company (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), (vi) reasonable
fees and disbursements of counsel for the Company and customary fees and
expenses for independent certified public accountants retained by the Company
(including the expenses relating to any comfort letters or costs associated with
the delivery by independent certified public accountants of any comfort letters
requested pursuant to Section 3.4(h)), (vii) reasonable fees and expenses of any
special experts retained by the Company in connection with such registration,
(viii) reasonable fees and expenses of one counsel for all of the Shareholders
participating in the offering selected by the Shareholders holding the majority
of the Registrable Securities to be sold for the account of all Shareholders in
the offering, (ix) fees and expenses in connection with any review by the NASD
of the underwriting arrangements or other terms of the offering, and all fees
and expenses of any "qualified independent underwriter," including the fees and
expenses of any counsel thereto, (x) fees and disbursements of underwriters
customarily paid by issuers or sellers of securities, but excluding any
underwriting fees, discounts and commissions attributable to the sale of
Registrable Securities, (xi) costs of printing and producing any agreements
among underwriters, underwriting agreements, any "blue sky" or legal investment
memoranda and any selling agreements and other documents in connection with the
offering, sale or delivery of the Registrable Securities, (xii) transfer agents'
and registrars' fees and expenses and the fees and expenses of any other agent
or trustee appointed in connection with such offering, (xiii) expenses relating
to any analyst or investor presentations or any "road shows" undertaken in
connection with the registration, marketing or selling of the Registrable
Securities, (xiv) fees and expenses payable in connection with any ratings of
the Registrable Securities, including expenses relating to any presentations to
rating agencies and (xv) all out-of pocket costs and expenses incurred by the
Company or its appropriate officers in connection with their compliance with
Section 3.4(m).
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Except as set forth in clause (viii) above, Registration Expenses shall not
include any out-of-pocket expenses of the Shareholders (or the agents who manage
their accounts).
"RULE 144" means Rule 144 and Rule 144A (or any successor provisions) under
the Securities Act.
"SEC" means the United States Securities and Exchange Commission.
"SECURITIES ACT" means the United States Securities Act of 1933, as
amended.
"SHAREHOLDER" means each Person (other than the Company) who shall be a
party to or bound by this Agreement, whether in connection with the execution
and delivery hereof as of the date hereof, pursuant to Section 5.1 or otherwise,
so long as such Person shall "beneficially own" (as such term is defined in Rule
13d-3 of the Exchange Act) any Company Securities.
"SHARES" means shares of Common Stock.
"SUBSCRIPTION AGREEMENTS" means the agreements dated as of November 9, 2001
pursuant to which securities of AXIS Specialty were purchased or otherwise
acquired and all substantially identical agreements dated as of other dates.
"SUBSIDIARY" means, with respect to any Person, any entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by such Person.
"TAG-ALONG PORTION" means, for any Tag-Along Sale, that number of
securities equal to the number of Company Securities proposed to be Transferred
in such Tag-Along Sale (with warrants, options and other common equivalents
counted on an as-converted or as-exercised basis), MULTIPLIED BY a fraction, the
numerator of which is the Aggregate Ownership of Company Securities by the
Tag-Along Seller or the Tagging Person, as the case may be, immediately prior to
the proposed Transfer and the denominator of which is the Aggregate Ownership of
Company Securities by all of the Tag-Along Sellers and Tagging Persons
immediately prior to the proposed Transfer.
"TRANSFER" means, with respect to any Company Securities, (i) when used as
a verb, to sell, assign, dispose of, exchange or otherwise transfer such Company
Securities or any participation or interest therein, whether directly or
indirectly, or agree or commit to do any of the foregoing and (ii) when used as
a noun, a direct or indirect sale, assignment, disposition, exchange or other
transfer of such Company Securities or any participation or interest therein or
any agreement or commitment to do any of the foregoing.
"WARRANTS" means the warrants to purchase Common Stock of the Company,
dated as of November 20, 2001, as amended, issued by the Company to Trident II,
L.P., ▇▇▇▇▇ & McLennan Capital Professionals Fund, L.P., ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Employees' Securities Company, L.P., Dragon Holdings Settlement, JR Charman
Children's Settlement, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III, ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇. The Warrants were originally issued by AXIS
Specialty and were originally exercisable for stock in
4
AXIS Specialty, and were amended by AXIS Specialty, the Company and the Warrant
holders to make such Warrants exercisable for Common Stock in the Company
effective upon Consummation of the Transaction (as defined in the Offering
Memorandum).
(b) In addition, each of the following terms is defined in the
Section set forth opposite such term:
Term Section
---- -------
AXIS Specialty Preamble
Company Preamble
Confidential Information 4.1(b)
Damages 3.5
Demand Registration 3.1(a)
Indemnified Party 3.7
Indemnifying Party 3.7
Inspectors 3.4(g)
Issuance Notice 2.3(a)
Maximum Allocation 2.1(c)
Maximum Offering Size 3.1(e)
Merger Agreement Preamble
Offering Memorandum Preamble
Old Shareholders' Agreement Preamble
Piggyback Registration 3.2(a)
Pro Rata Share 2.3(a)
Records 3.4(g)
Representatives 4.1(b)
Requesting Shareholder 3.1(a)
Tag-Along Notice 2.1(a)
Tag-Along Notice Period 2.1 (c)
Tag-Along Offer 2.1 (b)
Tag-Along Response Notice 2.1 (c)
Tag-Along Right 2.1 (c)
Tag-Along Sale 2.1 (a)
Tag-Along Seller 2.1 (a)
Tagging Person 2.1 (a)
ARTICLE 2.
TAG-ALONG RIGHTS; PREEMPTIVE RIGHTS
Section 2.1. TAG-ALONG RIGHTS.
(a) Subject to Sections 2.1(k) and 2.2, (i) if any Shareholder (or
group of Shareholders) proposes to Transfer, in a transaction otherwise
permitted by the Bye-laws (whether by waiver or otherwise), a number of Company
Securities equal to or exceeding 20% (in either voting power or value) of the
outstanding Company Securities of the Company in a single transaction or in a
series of related transactions, or (ii) if any Major Investor (or group of
5
Major Investors) proposes to Transfer, in a transaction otherwise permitted by
the Bye-laws (whether by waiver or otherwise), any Company Securities in a
single transaction or in a series of related transactions (each, a "TAG-ALONG
SALE" and the Shareholder (or group of Shareholders) or the Major Investor (or
group of Major Investors) proposing such Transfer, a "TAG-ALONG SELLER"),
(x) the Tag-Along Seller shall provide each other Shareholder
notice of the terms and conditions of such proposed
Transfer ("TAG-ALONG NOTICE") and offer each Tagging Person
the opportunity to participate in such Transfer in
accordance with this Section 2.1, and
(y) each other Shareholder may elect, at its option, to
participate in the proposed Transfer in accordance with
this Section 2.1 (each such electing other Shareholder, a
"TAGGING PERSON"),
PROVIDED that, with respect to any such Transfer which is also subject to the
right of first refusal contained in the Bye-laws, the Shareholders having a
right of first refusal under the Bye-laws shall have first been afforded the
opportunity to acquire any Company Securities to be sold in such Tag-Along Sale
in accordance with the provisions of the Bye-laws;
PROVIDED, FURTHER, that the tag-along rights contained in this Section 2.1 shall
not apply to any Transfer to a Permitted Transferee or to any Transfer pursuant
to an effective registration statement; and
PROVIDED, FURTHER, that any approval obtained by a Tag-Along Seller from the
Board of Directors under the Bye-laws for a Tag-Along Sale shall also be deemed
to be an approval for each Tagging Person participating in such Tag-Along Sale.
(b) The Tag-Along Notice shall identify the number of Company
Securities proposed to be Transferred in such Tag-Along Sale (with warrants,
options and other common equivalents counted on an as-converted or as-exercised
basis) including the number of Company Securities proposed to be sold by the
Tag-Along Seller ("TAG-ALONG OFFER"), the consideration for which the Transfer
is proposed to be made, and all other material terms and conditions of the
Tag-Along Offer, including the form of the proposed agreement, if any, and a
firm offer by the proposed transferee to purchase Company Securities from the
Shareholders in accordance with this Section 2.1.
(c) From the date of its receipt of the Tag-Along Notice, each
Tagging Person shall have the right (a "TAG-ALONG Right"), exercisable by
written notice ("TAG-ALONG RESPONSE NOTICE") given to the Tag-Along Seller and
the Company within 15 Business Days after its receipt of the Tag-Along Notice
(the "TAG-ALONG NOTICE PERIOD"), to request that the Tag-Along Seller include in
the proposed Transfer the number of Company Securities held by such Tagging
Person as is specified in the Tag-Along Response Notice;
PROVIDED that, if the aggregate number of Company Securities proposed to be sold
by the Tag-Along Seller and all Tagging Persons in any such transaction exceeds
the number of Company Securities that can be sold on the terms and conditions
set forth in the Tag-Along Notice, then each Tag-Along Seller and each Tagging
Person shall be entitled to include in the Tag-Along
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Sale only up to the lesser of (i) its Tag-Along Portion of Company Securities
and (ii) the number of Company Securities specified in the Tag Along Offer (in
the case of the Tag-Along Seller) or in its Tag-Along Response Notice (in the
case of a Tagging Person) (the "MAXIMUM ALLOCATION");
PROVIDED FURTHER that, if any Company Securities remain unallocated after
applying the cut-back requirement of the immediately preceding proviso, then
such unallocated Company Securities shall be allocated PRO RATA based on
ownership of each participant that shall have elected to sell more than its
Tag-Along Portion, but in no event shall any such participant be required to
sell more than its Maximum Allocation.
(d) Each Tag-Along Response Notice shall include wire transfer
instructions for payment of the purchase price for the Company Securities to be
sold in such Tag-Along Sale. Each Tagging Person that exercises its Tag-Along
Rights hereunder shall deliver to the Company (or its designated agent), no
later than 5 Business Days prior to the proposed closing date for the Tag-Along
Sale, the certificate or certificates representing the Company Securities of
such Tagging Person to be included in the Tag-Along Sale, together with a
limited power-of-attorney authorizing the Tag-Along Seller to Transfer such
Company Securities on the terms set forth in the Tag-Along Notice. Delivery of
the Tag-Along Response Notice shall constitute an irrevocable acceptance of the
Tag-Along Offer by such Tagging Persons; PROVIDED, HOWEVER, in the event that
there is a material change of the Tag-Along Offer, the Tag-Along Seller shall
give written notice of such change to each Tagging Person, and each Tagging
Person shall have the right to revoke its election to participate in the
Tag-Along Sale by providing written notice to the Company within 5 Business Days
of receiving the notice of the change in terms.
(e) If at the termination of the Tag-Along Notice Period, a
Shareholder shall not have elected to participate in the Tag-Along Sale, such
Shareholder shall be deemed to have waived its rights under this Section 2.1
with respect to the Transfer of its Company Securities pursuant to such
Tag-Along Sale; PROVIDED that in the event that there is a material change to
the terms of the Tag-Along Offer, the Tag-Along Seller shall give written notice
of such change to each such Shareholder and each such Shareholder shall have the
right to participate in the Tag-Along Sale by providing written notice to the
Tag-Along Seller within 10 Business Days after its receipt of the notice of
change of terms.
(f) The Tag-Along Seller shall Transfer, on behalf of itself and any
Tagging Person, the Company Securities subject to the Tag-Along Offer and
elected to be Transferred on the terms and conditions not materially
inconsistent with those set forth in the Tag-Along Notice within 120 days after
the last day of the Tag-Along Notice Period (which 120-day period shall be
extended if any of the transactions contemplated by the Tag-Along Offer are
subject to regulatory approval until the expiration of 5 Business Days after all
such approvals have been received, but in no event later than 180 days after the
last day of the Tag-Along Notice Period).
(g) Concurrently with the consummation of the Tag-Along Sale, (i)
the Tag-Along Seller shall notify the Tagging Persons thereof (including
identifying the manner of delivery for any non-cash consideration), (ii) the
total consideration due to each Tagging Person shall be remitted to such party,
with the cash portion of the purchase price paid by wire transfer of immediately
available funds in accordance with the wire transfer instructions in the
applicable
7
Tag-Along Response Notices, and (iii) promptly after the consummation of such
Tag-Along Sale, the Tag-Along Seller shall furnish such other evidence of the
completion and the date of completion of such transfer and the terms thereof as
may be reasonably requested by the Company for the benefit of the Tagging
Persons.
(h) If, at the end of the 120-day period immediately following the
last day of the Tag-Along Notice Period (or such longer period as extended under
Section 2.1(f)), the Tag-Along Seller has not completed the Transfer of all such
Company Securities on substantially the same terms and conditions set forth in
the Tag-Along Notice, (i) the Company (or its designated agent) shall return to
each Tagging Person, to the extent previously provided, the limited
power-of-attorney (and all copies thereof) together with all certificates
representing the Company Securities that such Tagging Person delivered for
Transfer pursuant to this Section 2.1 and any other documents executed by the
Tagging Persons in connection with the proposed Tag-Along Sale, and (ii) the
Tag-Along Seller shall not conduct any Transfer of Company Securities without
again complying with this Section 2.1.
(i) Notwithstanding anything contained in this Section 2.1, there
shall be no liability on the part of the Tag-Along Seller to the Tagging Persons
if the Transfer of Company Securities pursuant to this Section 2.1 is not
consummated for any reason. Whether to effect a Transfer of Company Securities
pursuant to this Section 2.1 by the Tag-Along Seller, or to terminate any such
transaction prior to consummation, is in the sole and absolute discretion of the
Tag-Along Seller.
(j) For purposes of this Article 2, (i) any increase to the price
payable in connection with any Tag-Along Offer shall be deemed to be a material
change only if such increase is more than 5% and (ii) any decrease to the price
payable in connection with any Tag-Along Offer shall be deemed to be a material
change.
(k) The rights and obligations of the parties hereto under Section
2.1(a)(ii) hereof shall terminate upon the First Public Offering.
Section 2.2. ADDITIONAL CONDITIONS TO TAG-ALONG SALES.
Notwithstanding anything contained in Section 2.1, the rights and obligations of
Shareholders to participate in a Tag-Along Sale are subject to the following
conditions:
(a) upon the consummation of such Tag-Along Sale, all of the
Shareholders participating therein will receive the same form and amount of
consideration per share, or, if any Shareholders are given an option as to the
form and amount of consideration to be received, all Shareholders participating
therein will be given the same option;
(b) no Person shall be obligated to pay any expenses incurred in
connection with any unconsummated Tag-Along Sale and each participating
Shareholder shall be obligated to pay only its PRO RATA share (based on the
number of Company Securities Transferred) of expenses incurred in connection
with a consummated Tag-Along Sale to the extent such expenses are incurred for
the benefit of all Shareholders and are not otherwise paid by the Company or
another Person;
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(c) each Tagging Person shall (i) make such representations,
warranties and covenants and enter into such definitive agreements as are
customary for transactions of the nature of the proposed Transfer and as are
consistent with, or no less favorable than, those applicable to the Tag-Along
Seller; PROVIDED that, if such Shareholders are required to provide any
representations or indemnities in connection with such Transfer (other than
representations and indemnities concerning each such Shareholder's title to the
Company Securities and authority, power and right to enter into and consummate
the Transfer without contravention of any law or agreement), liability for
misrepresentation or indemnity shall (as to such Shareholders) be expressly
stated to be several but not joint and each such Shareholder shall not be liable
for more than the lesser of (A) its PRO RATA share (based on the number of
Company Securities Transferred) of any liability for misrepresentation or
indemnity and (B) the net proceeds received by such Shareholder in connection
with such Transfer, (ii) be subject to all of the same provisions of the
definitive agreements as the Tag-Along Seller, and (iii) be required to bear
their proportionate share of any escrows, holdbacks or adjustments in purchase
price.
Section 2.3. PREEMPTIVE RIGHTS.
(a) Subject to Section 2.3(e), the Company shall give each
Shareholder notice (an "ISSUANCE NOTICE") of any proposed issuance by the
Company of any equity or equity-linked securities at least 15 Business Days
prior to the proposed issuance date. The Issuance Notice shall specify the price
at which such equity or equity-linked securities are to be issued and the other
material terms of the issuance. Subject to Section 2.3(d) below, each
Shareholder shall be entitled to purchase such Shareholder's Pro Rata Share of
the equity or equity-linked securities proposed to be issued, at the price and
on the other terms specified in the Issuance Notice. "PRO RATA SHARE" means,
with respect to any Shareholder, the fraction that results from dividing (i)
such Shareholder's Aggregate Ownership (immediately before giving effect to the
issuance) of Company Securities by (ii) the Aggregate Ownership (immediately
before giving effect to the issuance) of Company Securities for all
Shareholders.
(b) A Shareholder may exercise its rights under this Section 2.3 by
delivering notice of its election to purchase such equity or equity-linked
securities to the Company within 10 Business Days of receipt of the Issuance
Notice. A delivery of such notice (which notice shall specify the number (or
amount) of equity or equity-linked securities to be purchased by the Shareholder
submitting such notice) by such Shareholder shall constitute a binding agreement
of such Shareholder to purchase, at the price and on the terms specified in the
Issuance Notice, the number of shares (or amount) of equity or equity-linked
securities specified in such Shareholder's notice. If, at the termination of
such 10-Business Day-period, any Shareholder shall not have exercised its rights
to purchase any of such Shareholder's Pro Rata Share of such equity or
equity-linked securities, such Shareholder shall be deemed to have waived all of
its rights under this Section 2.3 with respect to the purchase of such
securities.
(c) The Company shall have 90 days from the date of the Issuance
Notice to consummate the proposed issuance of any or all of such equity or
equity-linked securities that the Shareholders have elected not to purchase at
the price and upon terms that are not materially less favorable to the Company
than those specified in the Issuance Notice, PROVIDED that, if such issuance is
subject to regulatory approval, such 90-day period shall be extended until the
expiration of five Business Days after all such approvals have been received,
but in no event
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later than 180 days from the date of the Issuance Notice. At the consummation of
such issuance, the Company shall issue certificates representing the equity or
equity-linked securities to be purchased by each Shareholder exercising
preemptive rights pursuant to this Section 2.3 registered in the name of such
Shareholder, against payment by such Shareholder of the purchase price for such
equity securities. If the Company proposes to issue any class of equity or
equity-linked securities after such 90-day period or proposes to issue any class
of equity or equity-linked securities on different terms during such 90-day
period, it shall again comply with the procedures set forth in this Section 2.3.
(d) Notwithstanding the foregoing, no Shareholder shall be entitled
to purchase equity or equity-linked securities as contemplated by this Section
2.3 in connection with issuances of such securities (i) to employees of the
Company or any Subsidiary pursuant to employee benefit plans or arrangements
approved by the Board (including upon the exercise of employee stock options),
(ii) in connection with any bona fide, arm's-length direct or indirect
amalgamation, scheme of arrangement, acquisition or similar transaction, (iii)
pursuant to a Public Offering or (iv) pursuant to the exercise of the Warrants.
The Company shall not be under any obligation to consummate any proposed
issuance of equity or equity-linked securities, nor shall there be any liability
on the part of the Company to any Shareholder if the Company has not consummated
any proposed issuance of equity or equity-linked securities pursuant to this
Section 2.3 for whatever reason, regardless of whether it shall have delivered
an Issuance Notice in respect of such proposed issuance.
(e) The provisions of this Section 2.3 shall terminate upon the
consummation of the First Public Offering.
ARTICLE 3.
REGISTRATION RIGHTS
Section 3.1. DEMAND REGISTRATION.
(a) If, at any time following the earlier of 180 days after the
effective date of the registration statement for the First Public Offering and
the expiration of the period during which the managing underwriters for the
First Public Offering shall prohibit the Company from effecting any other public
sale or distribution of Company Securities, the Company shall receive a request
from a Major Investor (the "REQUESTING SHAREHOLDER") that the Company effect the
registration under the Securities Act of all or any portion of such Requesting
Shareholder's Registrable Securities, and specifying the intended method of
disposition thereof, then the Company shall promptly give notice of such
requested registration (each such request, a "DEMAND REGISTRATION") at least 15
Business Days prior to the effective date of the registration statement relating
to such Demand Registration to the other Shareholders holding Registrable
Securities and thereupon shall use its commercially reasonable efforts to
effect, as expeditiously as possible, subject to Section 3.1(e), the
registration under the Securities Act of:
(i) all Registrable Securities for which the Requesting
Shareholder has requested registration under this Section 3.1, and
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(ii) all other Registrable Securities that any Shareholder
has requested the Company to register by written request received by the
Company within 10 Business Days after such Shareholder receives the
Company's notice of the Demand Registration,
all to the extent necessary to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities so to be
registered;
PROVIDED that, other than any Demand Registration to be effected pursuant to a
Registration Statement on Form S-3 (or any successor thereto), for which an
unlimited number of Demand Registrations shall be permitted, and subject to
Section 3.1(d), the Company shall not be obligated to effect more than three
Demand Registrations for Trident II, L.P., more than two Demand Registrations
for Blackstone FI Capital Partners (Cayman) L.P., more than two Demand
Registrations for DLJMB Overseas Partners III, C.V., more than two Demand
Registrations for ▇.▇. ▇▇▇▇▇▇ Partners (BHCA), L.P., more than two Demand
Registrations for ▇▇▇▇▇▇ ▇. ▇▇▇ (Alternative) Fund V, L.P., more than one Demand
Registration for ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Risk Capital Holdings, Ltd. or more than one
Demand Registration for GE Capital Equity Investments, Ltd. and General Electric
Pension Trust;
PROVIDED FURTHER that the Company shall not be obligated to effect a Demand
Registration unless the aggregate proceeds expected to be received from the sale
of the Registrable Securities requested to be included in such Demand
Registration equal or exceeds $25,000,000.
In no event shall the Company be required to effect more than one Demand
Registration hereunder within any four-month period.
(b) Promptly after the expiration of the 10-Business Day-period
referred to in Section 3.1(a)(ii), the Company will notify all Participating
Shareholders of the identities of the other Participating Shareholders and the
number of shares of Registrable Securities requested to be included therein. At
any time prior to the effective date of the registration statement relating to
such registration, the Requesting Shareholder may revoke such request, without
liability to any of the other Participating Shareholders, by providing a notice
to the Company revoking such request. A request, so revoked, shall be considered
to be a Demand Registration unless (i) such revocation arose out of the fault of
the Company (in which case the Company shall be obligated to pay all
Registration Expenses in connection with such revoked request) or (ii) the
Requesting Shareholder reimburses the Company for all Registration Expenses of
such revoked request. The Company agrees to use commercially reasonable efforts
to notify the Participating Shareholders if the price for any Company Securities
to be registered for sale for the account of the Company is expected to occur
outside of any expected pricing range disclosed to the Participating
Shareholders; PROVIDED that the Company shall not have any such obligation with
respect to any registration involving the registration of Company Securities
only for the account of parties other than the Company.
(c) The Company shall be liable for and pay all Registration
Expenses in connection with any Demand Registration, regardless of whether such
Registration is effected, except as set forth in Section 3.1(b)(ii).
(d) A Demand Registration shall not be deemed to have occurred:
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(i) unless the registration statement relating thereto (i)
has become effective under the Securities Act and (ii) has remained
effective for a period of at least 180 days (or such shorter period in
which all Registrable Securities of the Participating Shareholders included
in such registration have actually been sold thereunder), PROVIDED that
such registration statement shall not be considered a Demand Registration
if, after such registration statement becomes effective, (iii) such
registration statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or other governmental agency or court
and (iv) less than 75% of the Registrable Securities of the Requesting
Shareholder sought to be included in such registration statement have been
sold thereunder; or
(ii) if the Maximum Offering Size is reduced in accordance
with Section 3.1(e) such that less than 75% of the Registrable Securities
of the Requesting Shareholder sought to be included in such registration
are included.
(e) If a Demand Registration involves an underwritten Public
Offering and the managing underwriter advises the Company and the Requesting
Shareholder that, in its view, the number of shares of Registrable Securities
requested to be included in such registration (including any securities that the
Company proposes to be included that are not Registrable Securities) exceeds the
largest number of shares that can be sold without having an adverse effect on
such offering, including the price at which such shares can be sold (the
"MAXIMUM OFFERING SIZE"), the Company shall include in such registration, in the
priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be
registered by the Participating Shareholders (allocated, if necessary for
the offering not to exceed the Maximum Offering Size, PRO RATA among such
entities on the basis of the relative number of Registrable Securities
owned by the Participating Shareholders), and
(ii) second, any securities proposed to be registered by
the Company or any securities proposed to be registered for the account of
any other Persons (including the Company), with such priorities among them
as the Company shall determine.
(f) Upon notice to the Requesting Shareholder, the Company may
postpone effecting a registration pursuant to this Section 3.1 on one occasion
during any period of six consecutive months for a reasonable time specified in
the notice but not exceeding 90 days (which period may not be extended or
renewed), if (i) an investment banking firm of recognized national standing
shall advise the Company and the Requesting Shareholder in writing that
effecting the registration would materially and adversely affect an offering of
securities of the Company the preparation of which had then been commenced or
(ii) the Company is in possession of material non-public information the
disclosure of which during the period specified in such notice the Company
reasonably believes would not be in the best interests of the Company.
Section 3.2. PIGGYBACK REGISTRATION.
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(a) Except in connection with any Demand Registration pursuant to
Section 3.1 hereof, if the Company proposes to register any Company Securities
under the Securities Act (other than a registration on Form S-8 or S-4, or any
successor forms, relating to Shares issuable upon exercise of employee stock
options or in connection with any employee benefit or similar plan of the
Company or in connection with a direct or indirect acquisition by the Company of
another Person), whether or not for sale for its own account, the Company shall
each such time give prompt notice at least 15 Business Days prior to the
effective date of the registration statement relating to such registration to
each Shareholder, which notice shall set forth such Shareholder's rights under
this Section 3.2 and shall offer such Shareholder the opportunity to include in
such registration statement the number of Registrable Securities of the same
class or series as those proposed to be registered as each such Shareholder may
request (a "PIGGYBACK REGISTRATION"), subject to the provisions of Section
3.2(b). Upon the request of any such Shareholder made within 10 Business Days
after the receipt of notice from the Company (which request shall specify the
number of Registrable Securities intended to be registered by such Shareholder),
the Company shall use all reasonable efforts to effect the registration under
the Securities Act of all Registrable Securities that the Company has been so
requested to register by all such Shareholders, to the extent requisite to
permit the disposition of the Registrable Securities so to be registered;
PROVIDED that (i) if such registration involves an underwritten Public Offering,
all such Shareholders requesting to be included in the Company's registration
must sell their Registrable Securities to the underwriters selected as provided
in Section 3.4(f)(i) on the same terms and conditions as apply to the Company or
the shareholder requesting such registration, as applicable, and (ii) if, at any
time after giving notice of its intention to register any Company Securities
pursuant to this Section 3.2(a) and prior to the effective date of the
registration statement filed in connection with such registration, the Company
shall determine for any reason not to register such securities, the Company
shall give notice to all such Shareholders and, thereupon, shall be relieved of
its obligation to register any Registrable Securities in connection with such
registration. The Company agrees to use commercially reasonable efforts to
notify the Participating Shareholders if the price for any Company Securities to
be registered for sale for the account of the Company is expected to occur
outside of any previously publicly announced range; PROVIDED that the Company
shall not have any such obligation with respect to any registration involving
the registration of Company Securities only for the account of parties other
than the Company.
No registration effected under this Section 3.2 shall relieve the Company of its
obligations to effect a Demand Registration to the extent required by Section
3.1. The Company shall pay all Registration Expenses in connection with each
Piggyback Registration.
(b) If a Piggyback Registration involves an underwritten Public
Offering (other than any Demand Registration, in which case the provisions with
respect to priority of inclusion in such offering set forth in Section 3.1(e)
shall apply) and the managing underwriter advises the Company that, in its view,
the number of Shares that the Company and such Shareholders intend to include in
such registration exceeds the Maximum Offering Size, the Company shall include
in such registration, in the following priority, up to the Maximum Offering
Size:
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(i) first, so much of the Company Securities proposed to
be registered for the account of the Company as would not cause the
offering to exceed the Maximum Offering Size,
(ii) second, all Registrable Securities requested to be
included in such registration by any Shareholders pursuant to this Section
3.2 (allocated, if necessary for the offering not to exceed the Maximum
Offering Size, PRO RATA among such Shareholders on the basis of the
relative number of shares of Registrable Securities owned by such
shareholders), and
(iii) third, any securities proposed to be registered for
the account of any other Persons with such priorities among them as the
Company shall determine.
Section 3.3. LOCK-UP AGREEMENTS.
(a) In connection with the First Public Offering, neither the
Company nor any Shareholder shall effect any public sale or distribution of any
Company Securities or other security of the Company (except as part of such
Public Offering) during the period beginning 14 days prior to the effective date
of the applicable registration statement until the earlier of (i) such time as
the Company and the lead managing underwriter shall agree and (ii) 180 days.
(b) In connection with each other Public Offering that occurs before
the second anniversary of the First Public Offering, neither the Company nor any
Shareholder shall effect any public sale or distribution of any Company
Securities or other security of the Company (except as part of such Public
Offering) during the period beginning 14 days prior to the effective date of the
applicable registration statement until the earlier of (i) such time as the
Company and the lead managing underwriter shall agree and (ii) 90 days.
Section 3.4. REGISTRATION PROCEDURES. Whenever Shareholders request
that any Registrable Securities be registered pursuant to Sections 3.1 or 3.2,
subject to the provisions of such Sections, the Company shall use all reasonable
efforts to effect the registration and the sale of such Registrable Securities
in accordance with the intended method of disposition thereof as quickly as
practicable, and, in connection with any such request:
(a) The Company shall as expeditiously as possible prepare and file
with the SEC a registration statement on any form for which the Company then
qualifies or that counsel for the Company shall deem appropriate and which form
shall be available for the sale of the Registrable Securities to be registered
thereunder in accordance with the intended method of distribution thereof, and
use all reasonable efforts to cause such filed registration statement to become
and remain effective for a period of not less than 180 days, or in the case of a
shelf registration statement, one year (or such shorter period in which all of
the Registrable Securities of the Participating Shareholders included in such
registration statement shall have actually been sold thereunder).
(b) Prior to filing a registration statement or prospectus or any
amendment or supplement thereto, the Company shall, if requested, furnish to
each Participating Shareholder and each underwriter, if any, of the Registrable
Securities covered by such registration statement copies of such registration
statement as proposed to be filed, and thereafter the Company shall
14
furnish to such Shareholder and underwriter, if any, such number of copies of
such registration statement, each amendment and supplement thereto (in each case
including all exhibits thereto and documents incorporated by reference therein),
the prospectus included in such registration statement (including each
preliminary prospectus and any summary prospectus) and any other prospectus
filed under Rule 424 or Rule 430A under the Securities Act and such other
documents as such Shareholder or underwriter may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such
Shareholder. Each Participating Shareholder shall have the right to request that
the Company modify any information contained in such registration statement,
amendment and supplement thereto pertaining to such Shareholder and the Company
shall use all reasonable efforts to comply with such request, PROVIDED, HOWEVER,
that the Company shall not have any obligation so to modify any information if
the Company reasonably expects that so doing would cause the prospectus to
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.
(c) After the filing of the registration statement, the Company
shall (i) cause the related prospectus to be supplemented by any required
prospectus supplement, and, as so supplemented, to be filed pursuant to Rule 424
under the Securities Act, (ii) comply with the provisions of the Securities Act
with respect to the disposition of all Registrable Securities covered by such
registration statement during the applicable period in accordance with the
intended methods of disposition by the Participating Shareholders set forth in
such registration statement or supplement to such prospectus and (iii) promptly
notify each Participating Shareholder holding Registrable Securities covered by
such registration statement of any stop order issued or threatened by the SEC or
any state securities commission and use commercially reasonable best efforts to
prevent the entry of such stop order or to remove it if entered.
(d) The Company shall use all reasonable efforts to (i) register or
qualify the Registrable Securities covered by such registration statement under
such other securities or "blue sky" laws of such jurisdictions in the United
States as any Participating Shareholder holding such Registrable Securities
reasonably (in light of such Shareholder's intended plan of distribution)
requests and (ii) cause such Registrable Securities to be registered with or
approved by such other governmental agencies or authorities as may be necessary
by virtue of the business and operations of the Company and do any and all other
acts and things that may be reasonably necessary or advisable to enable such
Shareholder to consummate the disposition of the Registrable Securities owned by
such Shareholder, PROVIDED that the Company shall not be required to (iii)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3.4(d), (iv) subject
itself to taxation in any such jurisdiction or (v) consent to general service of
process in any such jurisdiction.
(e) The Company shall immediately notify each Participating
Shareholder holding such Registrable Securities covered by such registration
statement, at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, of the occurrence of an event requiring the
preparation of a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
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 and promptly prepare
15
and make available to each such Shareholder and file with the SEC any such
supplement or amendment.
(f) The Company shall have the right to select an underwriter or
underwriters in connection with any underwritten Public Offering resulting from
the exercise by any Major Investor of a Demand Registration or in connection
with any other underwritten Public Offering; PROVIDED that, in connection with
any Demand Registration, the Company will consult with the Major Investor
requesting such Demand Registration before selecting the lead underwriter;
PROVIDED, FURTHER, that, in connection with any Demand Registration, the Major
Investor requesting such Demand Registration shall have the right to select two
co-managers reasonably acceptable to the Company. In connection with any Public
Offering, the Company shall enter into customary agreements (including an
underwriting agreement in customary form) and take such all other actions as are
reasonably required in order to expedite or facilitate the disposition of such
Registrable Securities in any such Public Offering, including the engagement of
a "qualified independent underwriter" in connection with the qualification of
the underwriting arrangements with the NASD.
(g) Upon execution of confidentiality agreements in form and
substance reasonably satisfactory to the Company, the Company shall make
available for inspection by any Participating Shareholder and any underwriter
participating in any disposition pursuant to a registration statement being
filed by the Company pursuant to this Section 3.4 and any attorney, accountant
or other professional retained by any such Shareholder or underwriter
(collectively, the "INSPECTORS"), all financial and other records, pertinent
corporate documents and properties of the Company (collectively, the "RECORDS")
as shall be reasonably necessary or desirable to enable them to exercise their
due diligence responsibility, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any Inspectors in
connection with such registration statement. Records that the Company
determines, in good faith, to be confidential and that it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors unless (i)
the disclosure of such Records is necessary to avoid or correct a misstatement
or omission in such registration statement or (ii) the release of such Records
is required pursuant to applicable law or regulation or judicial process. Each
Participating Shareholder agrees that information obtained by it as a result of
such inspections shall be deemed confidential and shall not be used by it or its
Affiliates as the basis for any market transactions in the Company Securities
unless and until such information is made generally available to the public.
Each Participating Shareholder further agrees that, upon learning that
disclosure of such Records is sought in a court of competent jurisdiction, it
shall give notice to the Company and allow the Company, at its expense, to
undertake appropriate action to prevent disclosure of the Records deemed
confidential.
(h) The Company shall furnish to each Participating Shareholder and
to each such underwriter, if any, a signed counterpart, addressed to such
Shareholder or underwriter, of (i) an opinion or opinions of counsel to the
Company and (ii) a comfort letter or comfort letters from the Company's
independent public accountants, each in customary form and covering such matters
of the kind customarily covered by opinions or comfort letters, as the case may
be, as a majority of such Shareholders or the managing underwriter therefor
reasonably requests.
16
(i) The Company shall otherwise use all reasonable efforts to comply
with all applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable, an earnings statement or
such other document that shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder.
(j) The Company may require each such Participating Shareholder
promptly to furnish in writing to the Company such information regarding the
distribution of the Registrable Securities as the Company may from time to time
reasonably request and such other information as may be legally required in
connection with such registration.
(k) Each such Participating Shareholder agrees that, upon receipt of
any notice from the Company of the happening of any event of the kind described
in Section 3.4(e), such Shareholder shall forthwith discontinue disposition of
Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such Shareholder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 3.4(e), and, if so
directed by the Company, such Shareholder shall deliver to the Company all
copies, other than any permanent file copies then in such Shareholder's
possession, of the most recent prospectus covering such Registrable Securities
at the time of receipt of such notice. If the Company shall give such notice,
the Company shall extend the period during which such registration statement
shall be maintained effective (including the period referred to in Section
3.4(a)) by the number of days during the period from and including the date of
the giving of notice pursuant to Section 3.4(e) to the date when the Company
shall make available to such Shareholder a prospectus supplemented or amended to
conform with the requirements of Section 3.4(e).
(l) The Company shall use commercially reasonable best efforts to
list all Registrable Securities covered by such registration statement on any
securities exchange or quotation system on which any of the Registrable
Securities are then listed or traded.
(m) The Company shall have appropriate officers of the Company (i)
prepare and make presentations at any "road shows" and before analysts and
rating agencies, as the case may be, (ii) take other actions to obtain ratings
for any Registrable Securities and (iii) otherwise use their reasonable efforts
to cooperate as reasonably requested by the underwriters in the offering,
marketing or selling of the Registrable Securities, including, without
limitation, by executing customary underwriting agreements.
Section 3.5. INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless each Participating Shareholder holding Registrable
Securities covered by a registration statement, its officers, directors,
employees, partners and agents, and each Person, if any, who controls such
Shareholder within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable expenses of investigation and
reasonable attorneys' fees and expenses) ("DAMAGES") caused by or relating to
any untrue statement or alleged untrue statement of a material fact contained in
any registration statement or prospectus relating to the Registrable Securities
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto) or any preliminary prospectus, or caused by or relating
to 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,
except insofar as such
17
Damages are caused by or related to any such untrue statement or omission or
alleged untrue statement or omission so made based upon information furnished in
writing to the Company by such Shareholder or on such Shareholder's behalf
expressly for use therein.
The Company also agrees to indemnify any underwriters of the Registrable
Securities, their officers and directors and each Person who controls such
underwriters within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act on substantially the same basis as that of the
indemnification of the Shareholders provided in this Section 3.5 or otherwise on
commercially reasonable terms negotiated on an arm's length basis with such
underwriters.
Section 3.6. INDEMNIFICATION BY PARTICIPATING SHAREHOLDERS. Each
Participating Shareholder holding Registrable Securities included in any
registration statement agrees, severally but not jointly, to indemnify and hold
harmless the Company, its officers, directors 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 to the same extent as the
foregoing indemnity from the Company to such Shareholder, but only with respect
to information furnished in writing by such Shareholder or on such Shareholder's
behalf expressly for use in any registration statement or prospectus relating to
the Registrable Securities, or any amendment or supplement thereto, or any
preliminary prospectus. Each such Shareholder also agrees to indemnify and hold
harmless underwriters of the Registrable Securities, their officers and
directors and each Person who controls such underwriters within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act on
substantially the same basis as that of the indemnification of the Company
provided in this Section 3.6. As a condition to including Registrable Securities
in any registration statement filed in accordance with Article 3, the Company
may require that it shall have received an undertaking reasonably satisfactory
to it from any underwriter to indemnify and hold it harmless to the extent
customarily provided by underwriters with respect to similar securities. No
Participating Shareholder shall be liable under this Section 3.6 for any Damages
in excess of the net proceeds realized by such Shareholder in the sale of
Registrable Securities of such Shareholder to which such Damages relate.
Section 3.7. CONDUCT OF INDEMNIFICATION PROCEEDINGS. If any
proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant to
this Article 3, such Person (an "INDEMNIFIED PARTY") shall promptly notify the
Person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in
writing and the Indemnifying Party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to such Indemnified Party, and
shall assume the payment of all fees and expenses;
PROVIDED that the failure of any Indemnified Party so to notify the Indemnifying
Party shall not relieve the Indemnifying Party of its obligations hereunder
except to the extent and only to the extent that the Indemnifying Party is
materially prejudiced by such failure to notify. In any such proceeding, any
Indemnified Party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Party
unless (i) the Indemnifying Party and the Indemnified Party shall have mutually
agreed to the retention of such counsel or (ii) in the reasonable judgment of
such Indemnified Party representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
18
It is understood that, in connection with any proceeding or related proceedings
in the same jurisdiction, the Indemnifying Party shall not be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) at any time for all such Indemnified Parties, and
that all such fees and expenses shall be reimbursed as they are incurred. In the
case of any such separate firm for the Indemnified Parties, such firm shall be
designated in writing by the Indemnified Parties. 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 shall indemnify and hold harmless such
Indemnified Parties from and against any loss or liability (to the extent stated
above) by reason of such settlement or judgment. Without the prior written
consent of the Indemnified Party, no Indemnifying Party shall effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability arising out
of such proceeding.
Section 3.8. CONTRIBUTION. If the indemnification provided for in
this Article 3 is unavailable to the Indemnified Parties in respect of any
Damages, then each such Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Damages (i) as between the Company and the
Participating Shareholders holding Registrable Securities covered by a
registration statement on the one hand and the underwriters on the other, in
such proportion as is appropriate to reflect the relative benefits received by
the Company and such Shareholders on the one hand and the underwriters on the
other, from the offering of the Registrable Securities, or if such allocation is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits but also the relative fault of the Company and
such Shareholders on the one hand and of such underwriters on the other in
connection with the statements or omissions that resulted in such Damages, as
well as any other relevant equitable considerations and (ii) as between the
Company on the one hand and each such Shareholder on the other, in such
proportion as is appropriate to reflect the relative fault of the Company and of
each such Shareholder in connection with such statements or omissions, as well
as any other relevant equitable considerations. The relative benefits received
by the Company and such Shareholders on the one hand and such underwriters on
the other shall be deemed to be in the same proportion as the total proceeds
from the offering (net of underwriting discounts and commissions but before
deducting expenses) received by the Company and such Shareholders bear to the
total underwriting discounts and commissions received by such underwriters, in
each case as set forth in the table on the cover page of the prospectus. The
relative fault of the Company and such Shareholders on the one hand and of such
underwriters on the other 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 Company and such Shareholders or by such underwriters. The
relative fault of the Company on the one hand and of each such Shareholder on
the other 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 such party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
19
The Company and the Participating Shareholders agree that it would not be
just and equitable if contribution pursuant to this Section 3.8 were determined
by PRO RATA allocation (even if the underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Party as a result of the Damages
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, 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
Section 3.8, no Participating Shareholder shall be required to contribute any
amount for Damages in excess of the net proceeds realized by such Shareholder in
the sale of Registrable Securities of such Shareholder to which such Damages
relate. 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. Each
Participating Shareholder's obligation to contribute pursuant to this Section
3.8 is several in the proportion that the net proceeds of the offering received
by such Shareholder bears to the total net proceeds of the offering received by
all such Participating Shareholders and not joint.
Section 3.9. PARTICIPATION IN PUBLIC OFFERING. No Person may
participate in any Public Offering hereunder unless such Person (i) agrees to
sell such Person's 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 questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements and the provisions of
this Agreement in respect of registration rights.
Section 3.10. OTHER INDEMNIFICATION. Indemnification similar to that
specified herein (with appropriate modifications) shall be given by the Company
and each Participating Shareholder with respect to any required registration or
other qualification of securities under any federal or state law or regulation
or governmental authority other than the Securities Act.
Section 3.11. COOPERATION BY THE COMPANY. If any Shareholder shall
transfer any Registrable Securities pursuant to Rule 144, the Company shall
cooperate, to the extent commercially reasonable, with such Shareholder and
shall provide to such Shareholder such information as such Shareholder shall
reasonably request.
ARTICLE 4.
CERTAIN COVENANTS AND AGREEMENTS
Section 4.1. CONFIDENTIALITY.
(a) Each Shareholder agrees that Confidential Information furnished
and to be furnished to it was and shall be made available in connection with
such Shareholder's investment in the Company. Each Shareholder agrees that it
shall use, and that it shall cause any Person to whom Confidential Information
is disclosed pursuant to clause (i) below to use, the Confidential Information
only in connection with its investment in the Company and not for any other
20
purpose (including to disadvantage competitively the Company or any other
Shareholder). Each Shareholder further acknowledges and agrees that it shall not
disclose any Confidential Information to any Person, except that Confidential
Information may be disclosed:
(i) to such Shareholder's Representatives in the normal
course of the performance of their duties or to any financial institution
providing credit to such Shareholder,
(ii) to the extent required by applicable law, rule or
regulation (including complying with any oral or written questions,
interrogatories, requests for information or documents, subpoena, civil
investigative demand or similar process to which a Shareholder is subject,
PROVIDED that such Shareholder give the Company prompt notice of such
request(s), to the extent practicable, so that the Company may seek an
appropriate protective order or similar relief (and the Shareholder shall
cooperate with such efforts by the Company, and shall in any event make
only the minimum disclosure required by such law, rule or regulation)),
(iii) to any Person to whom such Shareholder is
contemplating a Transfer of its Company Securities, PROVIDED that such
Transfer would not be in violation of the provisions of this Agreement and
such potential transferee is advised of the confidential nature of such
information and agrees to be bound by a confidentiality agreement
consistent with the provisions hereof,
(iv) to any regulatory authority or rating agency to which
the Shareholder or any of its affiliates is subject or with which it has
regular dealings, as long as such authority or agency is advised of the
confidential nature of such information, or
(v) if the prior written consent of the Board shall have
been obtained.
Nothing contained herein shall prevent the use (subject, to the extent possible,
to a protective order) of Confidential Information in connection with the
assertion or defense of any claim by or against the Company or any Shareholder.
The restrictions contained in this Section 4.1(a) shall terminate as to any
Shareholder one year following the date on which such Shareholder ceases to own
any Company Securities.
(b) "CONFIDENTIAL INFORMATION" means any information concerning the
Company or any Persons that are or become its Subsidiaries or the financial
condition, business, operations or prospects of the Company or any such Persons
in the possession of or furnished to any Shareholder (including by virtue of its
present or former right to designate a director of the Company), PROVIDED that
the term "Confidential Information" does not include information that (i) is or
becomes generally available to the public other than as a result of a disclosure
by a Shareholder or its partners, shareholders, members, directors, officers,
employees, agents, counsel, investment advisers or representatives (all such
persons being collectively referred to as "REPRESENTATIVES") in violation of the
applicable agreement, such as the Subscription Agreement or this Agreement, (ii)
is or was available to such Shareholder on a non-confidential basis prior to its
disclosure to such Shareholder or its Representatives by the Company or (iii)
was or becomes available to such Shareholder on a non-confidential basis from a
source other
21
than the Company, which source is or was (at the time of receipt of the relevant
information) not, to the best of such Shareholder's knowledge, bound by a
confidentiality agreement with (or other confidentiality obligation to) the
Company or another Person.
Section 4.2. LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. The
Company agrees that it shall not enter into any registration agreement with any
holder or prospective holder of any securities of the Company (i) that would
allow such holder or prospective holder to include such securities in any Demand
Registration or Piggyback Registration unless, under the terms of such
agreement, such holder or prospective holder may include such securities in any
such registration only to the extent that their inclusion would not reduce the
amount of the Registrable Securities of the Shareholders included therein or
(ii) on terms otherwise more favorable than this Agreement.
Section 4.3. CONFLICTING AGREEMENTS. This Agreement constitutes the
entire agreement among the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements, understandings and arrangements,
oral or written, by or among the parties hereto with respect to the subject
matter hereof, including the Old Shareholders' Agreement and Section C3(a-e) of
the Subscription Agreements. In addition, if any provision of this Agreement
limits, qualifies or conflicts with any provision contained in any of the Old
Shareholders' Agreement or the Subscription Agreements, the provision contained
in this Agreement shall control.
Section 4.4. CERTAIN INFORMATION. Prior to the consummation of the
First Public Offering and during any period thereafter when the Company is not
subject to the reporting obligations of Section 15(d) of the Exchange Act, the
Company agrees to provide to each Shareholder promptly following the end of each
fiscal year of the Company, an audited annual report and at the end of the first
three fiscal quarters of each fiscal year of the Company, an unaudited quarterly
report, in each case setting forth its balance sheet as of the end of such
period, its statement of income for such period and its statement of cash flows
for such period. From and after the consummation of the First Public Offering
but only so long as the Company shall remain subject to the reporting
obligations of Section 15(d) of the Exchange Act, the Company will file the
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the SEC thereunder in a timely manner
in accordance with the requirements of the Securities Act and the Exchange Act.
Section 4.5. RESTRICTIVE LEGENDS: The certificates representing the
Shares shall include an endorsement typed conspicuously thereon of the following
restrictive legends:
22
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED. NO REGISTRATION OF TRANSFER OF SUCH
SECURITIES WILL BE MADE ON THE BOOKS OF THE ISSUER UNLESS SUCH TRANSFER IS MADE
IN CONNECTION WITH AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT OR SUCH
ACT DOES NOT APPLY.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER AS SET FORTH IN THE BYE-LAWS OF THE COMPANY AND THAT
CERTAIN SHAREHOLDERS' AGREEMENT DATED AS OF DECEMBER 31, 2002, AS THE SAME MAY
BE AMENDED FROM TIME TO TIME, COPIES OF WHICH ARE ON FILE AT THE PRINCIPAL
EXECUTIVE OFFICES OF THE ISSUER, AND MAY NOT BE TRANSFERRED EXCEPT IN ACCORDANCE
THEREWITH."
In the event that any Shares shall cease (as reasonably determined by the
Company) to be subject to any or all of the restrictions described in the
restrictive legends required by this Section 4.5, the Company shall, upon the
written request of the holder thereof, issue to such holder a new certificate
representing such Shares without the inapplicable restrictive legend or legends.
Section 4.6. REGULATORY STATUS. The Company will continue to take
the position that it is a "Primary Operating Company" as defined in the Offering
Memorandum, as long as it meets the requirements of a Primary Operating Company.
ARTICLE 5.
MISCELLANEOUS
Section 5.1. BINDING EFFECT; ASSIGNABILITY; BENEFIT.
(a) This Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective heirs, successors, legal representatives
and permitted assigns; PROVIDED, HOWEVER, that this Agreement shall not inure to
the benefit of or be binding on, or be assignable or transferable by any
Shareholder to, any Person acquiring Company Securities in any Public Offering
or pursuant to Rule 144. Any Shareholder that ceases to own beneficially any
Company Securities shall cease to be bound by the terms hereof (other than (i)
the provisions of Sections 3.5, 3.6, 3.7, 3.8 and 3.10 applicable to such
Shareholder with respect to any offering of Registrable Securities completed
before the date such Shareholder ceased to own any Company Securities and (ii)
Sections 4.1, 5.2, 5.5, 5.6, 5.7 and 5.8).
(b) Notwithstanding the provisions of Section 5.1(a), additional
holders of Company Securities may be added to and bound by this Agreement as a
"SHAREHOLDER" upon the signing and delivery by the Company of an agreement of
joinder in the form attached hereto as Exhibit B and the acceptance thereof by
such additional holders.
(c) Nothing in this Agreement, expressed or implied, is intended to
confer on any Person other than the parties hereto, and their respective heirs,
successors, legal
23
representatives and permitted assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
Section 5.2. NOTICES. All notices, requests and other
communications to any party shall be in writing and shall be delivered in
person, mailed by certified or registered mail, return receipt requested, or
sent by facsimile transmission,
if to the Company to:
AXIS Capital Holdings Limited
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇.▇▇▇▇@▇▇▇▇.▇▇
with a copy to:
MMC Capital, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
and if to a Shareholder, at such Shareholder's address as set forth in the
Register of Members maintained by the Company. Any Person that becomes a
Shareholder shall promptly provide its address and fax number to the Company.
All notices, requests and other communications shall be deemed received on the
date of receipt by the recipient thereof if received prior to 5:00 p.m. in the
place of receipt and such day is a Business Day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to have
been received until the next succeeding Business Day in the place of receipt.
Any notice, request or other written communication sent by facsimile
transmission shall be confirmed by certified or registered mail, return receipt
requested, posted within one Business Day, or by personal delivery, whether
courier or otherwise, made within two Business Days after the date of such
facsimile transmissions.
Section 5.3. WAIVER; AMENDMENT; TERMINATION.
(a) No provision of this Agreement may be waived except by an
instrument in writing executed by the party against whom the waiver is to be
effective. No provision of this Agreement may be amended or otherwise modified
except by an instrument in writing executed by the Company with approval of the
Board and Shareholders holding at least 75% of the outstanding Shares held by
the parties hereto at the time of such proposed amendment or modification.
24
(b) In addition, any amendment or modification of any provision of
this Agreement that would adversely affect a Shareholder in a manner different
from any other Shareholder may be effected only with the consent of such
Shareholder.
Section 5.4. GOVERNING LAW. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of
New York.
Section 5.5. JURISDICTION. The parties hereby agree that any suit,
action or proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement or the transactions
contemplated hereby shall be brought in the United States District Court for the
Southern District of
New York or any
New York State court sitting in
New York
City, so long as one of such courts shall have subject matter jurisdiction over
such suit, action or proceeding, and that any case of action arising out of this
Agreement shall be deemed to have arisen from a transaction of business in the
State of
New York, and each of the parties hereby irrevocably consents to the
jurisdiction of such courts (and of the appropriate appellate courts therefrom)
in any such suit, action or proceeding and irrevocably waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding in any such court or
that any such suit, action or proceeding which is brought in any such court has
been brought in an inconvenient form. Process in any such suit, action or
proceeding may be served on any party anywhere in the world, whether within or
without the jurisdiction of any such court. Without limiting the foregoing, each
party agrees that service of process on such party as provided in Section 5.2
shall be deemed effective service of process on such party; provided that, in
lieu of being subject to service of process by the methods provided in Section
5.2, each Shareholder, by providing written notice to the Company, may designate
an agent with an office in
New York City (or other location approved by the
Company) to receive service of process on behalf of such Shareholder.
Section 5.6. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
Section 5.7. SPECIFIC ENFORCEMENT. Each party hereto acknowledges
that the remedies at law of the other parties for a breach or threatened breach
of this Agreement would be inadequate and, in recognition of this fact, any
party to this Agreement, without posting any bond, and in addition to all other
remedies that may be available, shall be entitled to obtain equitable relief in
the form of specific performance, a temporary restraining order, a temporary or
permanent injunction or any other equitable remedy that may then be available.
Section 5.8. COUNTERPARTS; EFFECTIVENESS. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument. This Agreement shall become effective when each party
hereto shall have received counterparts hereof signed by all of the other
parties hereto.
Section 5.9. ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement among the parties hereto and supersedes all prior and
contemporaneous agreements
25
and understandings, both oral and written, among the parties hereto with respect
to the subject matter hereof.
Section 5.10. CAPTIONS. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
Section 5.11. SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
Upon such a determination, the parties shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner so that the transactions contemplated hereby be
consummated as originally contemplated to the fullest extent possible.
26
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
AXIS CAPITAL HOLDINGS LIMITED
By:
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Executive Vice President and Chief
Financial Officer
27
EXHIBIT A
LIST OF SHAREHOLDERS SUBJECT TO SHAREHOLDERS' AGREEMENT AS OF DECEMBER 31, 2002
Trident II, ▇.▇.
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Capital Professionals Fund, ▇.▇.
▇▇▇▇▇ & McLennan Employees' Securities Company, L.P.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Blackstone FI Capital Partners (Cayman) ▇.▇.
▇▇▇▇▇▇▇▇▇▇ FI Offshore Capital Partners (Cayman) ▇.▇.
▇▇▇▇▇▇▇▇▇▇ Management Partners III, L.L.C.
Blackstone Family Investment Partnership (Cayman) III L.P.
DLJMB Overseas Partners III, C.V.
DLJ Offshore Partners III, C.V.
DLJ Offshore Partners III-1, C.V.
DLJ Offshore Partners III-2, C.V.
DLJ MB Partners III GmbH & Co. KG
▇.▇. ▇▇▇▇▇▇ Partners (BHCA), L.P.
J.P. ▇▇▇▇▇▇ Partners Global Investors (Cayman) II, L.P.
J.P. ▇▇▇▇▇▇ Partners Global Investors (Cayman) III, L.P.
J.P. ▇▇▇▇▇▇ Partners Global Investors (Cayman) IV, L.P.
J.P. ▇▇▇▇▇▇ Partners Global Investors (Cayman), L.P.
J.P. ▇▇▇▇▇▇ Corsair II Offshore Capital Partners, L.P.
J.P. ▇▇▇▇▇▇ Capital, L.P.
J.P. ▇▇▇▇▇▇ Partners Global Investors, L.P.
J.P. ▇▇▇▇▇▇ Partners Global Investors A.L.P.
▇▇▇▇▇▇ ▇. ▇▇▇ (Alternative) Fund V, L.P.
▇▇▇▇▇▇ ▇. ▇▇▇ (Alternative) Parallel Fund V, L.P.
▇▇▇▇▇▇ ▇. ▇▇▇ (Alternative) Cayman Fund V, L.P.
▇▇▇▇▇▇ ▇. ▇▇▇ Investors Limited Partnership
US Bank, N.A. (successor to State Street Bank & Trust Company), not personally,
but solely as Trustee under the 1997 ▇▇▇▇▇▇ ▇. ▇▇▇ Nominee Trust
▇▇▇▇▇▇ Investments Holdings, LLC
▇▇▇▇▇▇ Investments Employees' Securities Company I LLC
▇▇▇▇▇▇ Investments Employees' Securities Company II LLC
THL Managers V, LLC
Centurion Long Term Strategies, L.P.
Centurion Partners, L.P.
28
Sankaty High Yield Associates II
Sankaty High Yield Associates III
BCIP Associates III Cayman
BCIP Associates III Cayman-B
RGIP LLC
Brookside Capital Partners Fund, L.P.
Federal Insurance Company
▇▇▇▇▇ Partners Fund I, L.P.
First Union Capital Partners 2001, LLC
GE Capital Equity Investments, Ltd.
General Electric Pension Trust
Geyser S.A.
High Ridge Capital Partners II, LP
Lockheed ▇▇▇▇▇▇ Corporation Master Retirement Trust
Mapusa Investments, LDC
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Risk Capital Holdings, Ltd.
MMC Capital Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Ventures L.P. 2001
Asset Management Private Equity, L.P.
Northaven Partners, L.P.
Northaven Partners II, L.P.
Northaven Partners III, L.P.
The Olympian Holding Corp.
Princess Gate Investors III, L.P.
PGI Investments Limited
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vermogensverwaltung Erben ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ GmbH
Acorn Partnership III, L.P.
Originators Investment Plan, L.P.
Robco Partners III
Silver Wake Maritime Corporation
ITB Partners, LLC
29
Trustees UIT of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ dated 9/1/88 (▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇)
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
High Peak International Holdings Limited
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Heaps, L.P.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇
M. B. ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇ Charitable Trust
▇.▇. ▇▇▇▇▇▇▇ Childrens No. 1 Settlement
▇.▇. ▇▇▇▇▇▇▇ Childrens No. 2 Settlement
▇▇▇▇▇▇ Muendheim
▇▇▇▇▇▇▇ ▇.▇. Skey
▇▇▇▇▇ ▇. ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as Trustees of the Tasco Family 1999 Trust
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
30
EXHIBIT B
JOINDER TO SHAREHOLDERS' AGREEMENT
This Joinder Agreement (this "JOINDER AGREEMENT") is made as of the
date written below by the undersigned (the "JOINING PARTY") in accordance with
the Shareholders' Agreement dated as of December 31, 2002 (the "SHAREHOLDERS'
AGREEMENT") among
AXIS Capital Holdings Limited and the Shareholders party
thereto, as the same may be amended from time to time. Capitalized terms used,
but not defined, herein shall have the meaning ascribed to such terms in the
Shareholders' Agreement.
The Joining Party hereby acknowledges, agrees and confirms that, by
its execution of this Joinder Agreement, the Joining Party shall be deemed to be
a party to the Shareholders' Agreement as of the date hereof and shall have all
of the rights and obligations of a "Shareholder" thereunder as if it had
executed the Shareholders' Agreement. The Joining Party hereby ratifies, as of
the date hereof, and agrees to be bound by, all of the terms, provisions and
conditions contained in the Shareholders' Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Joinder
Agreement as of the date written below.
Date: ___________ ___, ______
[NAME OF JOINING PARTY]
By:
----------------------------------
Name:
Title:
Address for Notices:
31
