EXHIBIT 4.4
SCOTTISH LIFE HOLDINGS, LTD.
Xxxxxx House, 113 South Church Street
Xxxxxx Town, Grand Cayman
Cayman Islands, British West Indies
______, 1998
To the Investor executing
this Agreement on the
signature page hereof
Re: Securities Purchase Agreement
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Ladies and Gentlemen:
Scottish Life Holdings, Ltd., a Cayman Islands company (the "Company"),
hereby agrees with you (the "Investor") as follows:
Section 1. Authorization of Securities. The Company has duly authorized
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the issuance, sale and delivery of Class A Warrants (the "Warrants") to purchase
its ordinary shares, par value $.01 per share (the "Ordinary Shares").
Section 2. Purchase and Sale of Securities.
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(a) Issuance of Securities. Subject to the terms and conditions set
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forth in this Agreement and in reliance upon the Investor's representations set
forth below, on the Closing Date (as defined below) the Company shall sell to
the Investor, and the Investor shall purchase from the Company, the number of
Warrants at the aggregate cash purchase price (the "Purchase Price") set forth
opposite its name on Schedule 1. Such sale and purchase shall be effected on
the Closing Date by the Company executing and delivering to the Investor, duly
registered in its name (or that of its nominee), a duly executed warrant
certificate in the form attached as Exhibit A hereto evidencing the Warrants
being purchased by it (the "Warrant Certificate"), against delivery by the
Investor to the Company on the Closing Date. The Company is entering into
securities purchase agreements (the "Other Agreements") substantially in the
form of this Agreement with the other investors listed on Schedule 1 ("Other
Investors" and, collectively with the Investor, the "Investors"). The Company's
agreements with each of the Investors are separate agreements, and the sales to
each of the Investors are separate sales.
(b) Closing of Issuance. The closing of such sale and purchase (the
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"Closing") shall take place at 10:00 A.M., New York City time, on June 17, 1998
(the "Closing Date").
Section 3. Representations and Warranties of the Company. The Company
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represents and warrants to the Investor that:
(a) Corporate Organization. The Company is a corporation duly
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organized, validly existing and in good standing under the laws of the Cayman
Islands.
(b) Corporate Proceedings, etc. The Company has duly authorized the
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execution, delivery, and performance of this Agreement and the issuance and sale
of the Warrants. No other corporate action (including shareholder approval) is
necessary to authorize such execution, delivery and performance, and upon such
execution and delivery, this Agreement shall constitute the valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except that such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights and general principles of equity.
Section 4. Representations and Warranties of the Investor. The Investor
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represents and warrants to the Company as follows:
(a) It is acquiring the Warrants (and will acquire the Ordinary Shares
issuable upon exercise of the Warrants) for its own account for investment and
not with a view towards the distribution thereof, nor with any present intention
of distributing the Warrants (or the Ordinary Shares acquired upon exercise of
the Warrants), but without prejudice to the Investor's right at all times to
sell or otherwise dispose of all or any part of such securities under a
registration under the Securities Act or under an exemption from said
registration available under the Securities Act to the extent permitted by the
Warrant Certificate.
(b) It is an "accredited investor" within the meaning of Rule
501(a)(3) under the Securities Act.
(c) It has such knowledge and experience in financial and business
maters that it is capable of evaluating the merits and risks of its investment
in the Company as contemplated by this Agreement, and is able to bear the
economic risk of such investment for an indefinite period of time. It has been
furnished access to such information and documents as it has requested and has
been afforded an opportunity to ask questions of and receive answers from
representatives of the Company concerning the terms and conditions of this
Agreement and the purchase of the Warrants contemplated hereby.
(d) It has all requisite power and authority to execute this Agreement
and the Registration Rights Agreement, to perform its obligations hereunder and
thereunder and to acquire and hold the Warrants.
Section 5. Additional Covenants of the Parties.
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(a) Resale of Securities.
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(i) The Investor covenants that it will not sell or otherwise
transfer the Warrants (or any Ordinary Shares acquired upon exercise of the
Warrants) except pursuant to an effective registration under the Securities
Act or in a transaction which, qualifies as an exempt transaction under the
Securities Act and the rules and regulations promulgated thereunder and
subject to the provisions of the Warrant Certificate.
(ii) The certificates evidencing Warrants and Ordinary Shares
issuable upon exercise of the Warrants will bear the following legend
reflecting the foregoing restrictions on the transfer of such securities:
"THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE TRANSFERRED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION UNDER THE ACT OR IN A
TRANSACTION WHICH QUALIFIES AS AN EXEMPT TRANSACTION UNDER THE ACT AND THE
RULES AND REGULATIONS PROMULGATED THEREUNDER."
(b) Further Assurance. Each of the parties shall execute such
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documents and other papers and take such further actions as may be reasonably
required or desirable to carry out the provisions hereof and the transactions
contemplated hereby. Each such party shall use its reasonable efforts to
fulfill or obtain the fulfillment of the conditions to the Closing as promptly
as practicable.
Section 6. Investor's Closing Conditions. The obligation of the Investor
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to purchase and pay for the Warrants on the Closing Date, as provided in Section
2 hereof, shall be subject to the performance by the Company of its agreements
theretofore to be performed hereunder and to the satisfaction, prior thereto or
concurrently therewith, of the following further conditions:
(a) Representations and Warranties. The representations and
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warranties of the Company contained in this Agreement shall be true in all
material respects on and as of the Closing Date as though such warranties and
representations were made at and as of such date, except as otherwise affected
by the transactions contemplated hereby.
(b) Compliance with Agreement. The Company shall have performed and
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complied in all material respects with all agreements, covenants and conditions
contained in this Agreement which are required to be performed or complied with
by the Company prior to or on the Closing Date.
(c) Delivery of Warrants. The Company shall have delivered to the
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Investor the certificates evidencing the Warrants being purchased by it
hereunder as provided in Section 2(a).
(d) Registration Rights Agreement. The Company shall have executed
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and delivered to the Investor the Registration Rights Agreement, the form of
which is attached as Exhibit B hereto (the "Registrations Rights Agreement").
Section 7. Company Closing Conditions. The obligation of the Company to
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issue and deliver the Warrants on the Closing Date, as provided in Section 2
hereof, shall be subject to the performance by the Investor of its agreements
theretofore to be performed hereunder and to the satisfaction, prior thereto or
concurrently therewith, of the following further conditions:
(a) Representations and Warranties. The representations and
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warranties of the Investor contained in this Agreement shall be true on and as
of the Closing Date as though such
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warranties and representations were made at and as of such date, except as
otherwise affected by the transactions contemplated hereby.
(b) Compliance with Agreement. The Investor shall have performed and
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complied with all agreements, covenants and conditions contained in this
Agreement which are required to be performed or complied with by it prior to or
on the Closing Date.
Section 8. Limitation on Disposition. The Investor will not, without the
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consent of the Company, sell, transfer or otherwise dispose of the Warrants for
a period of one year after the Closing Date except to one or more of its
Affiliates, provided that any such affiliate shall agree to be bound by the
provisions of this Section 8. As used herein, "Affiliate" means any person or
entity directly or indirectly controlling, controlled by or under common control
with, the Investor.
Section 9. Miscellaneous.
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(a) Section Headings. The headings of the sections and subsections of
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this Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof.
(b) Notices.
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(i) All communications under this Agreement shall be in writing
and shall be delivered by hand or facsimile or mailed by overnight courier
or by registered mail or certified mail, postage prepaid:
If to the Investor, at: the address specified in Schedule 2.1
(or at such other address as the Investor may
have furnished the Company in writing).
If to the Company, at: Xxxxxx House, 000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx Town, Grand Cayman
Cayman Islands, British West Indies
Attention: Chief Executive Officer
(or at such other address as it may have
furnished the Investor in writing).
(ii) Any notice so addressed shall be deemed to be given: if
delivered by hand or facsimile, on the date of such delivery; if mailed by
courier, on the first business day following the date of such mailing; and
if mailed by registered or certified mail, on the third business day after
the date of such mailing.
(b) Termination and Survival. Unless the Closing has occurred prior
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thereto, this Agreement and all the rights of the parties hereto, shall
terminate on December 31, 1998 (unless such date is extended by mutual written
consent).
(c) Successors and Assigns. This Agreement shall inure to the benefit
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of and be binding upon the successors and permitted assigns of each of the
parties.
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(d) Entire Agreement; Amendment and Waiver. This Agreement and the
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agreements attached as Exhibits hereto constitute the entire understanding of
the parties hereto and supersede all prior agreements or understandings with
respect to the subject matter hereof among such parties. This Agreement may be
amended, and the observance of any term of this Agreement may be waived, with
(and only with) the written consent of the Company and the Investor.
(e) Severability. In the event that any part or parts of this
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Agreement shall be held illegal or unenforceable by any court or administrative
body of competent jurisdiction, such determination shall not affect the
remaining provisions of this Agreement which shall remain in full force and
effect.
(f) Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the Cayman Islands.
(g) Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original and all of which
together shall be considered one of the same agreement.
If you are in agreement with the foregoing, please so indicate by executing
the acceptance set forth below and return a copy of this Agreement to the
Company, whereupon this Agreement shall be a binding agreement between us.
Very truly yours,
SCOTTISH LIFE HOLDINGS, LTD.
BY: ________________________________
Name:
Title:
The foregoing Agreement is hereby accepted:
By:_________________________________
Name:
Title:
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SCHEDULE 1
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Investors Number of Ordinary Shares Purchase Price
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Xxxxxxx X. Xxxxxx 750,000 $48,387.10
Xxxxxxxx X. Xxxxxxx 50,000 $ 3,225.81
Audubon Assets Limited 500,000 $32,258.06
Soulieana Limited 250,000 $16,129.03
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