EXHIBIT 4.2
January 1996
STIRLING ▇▇▇▇▇ ▇▇▇▇▇ HOLDINGS LIMITED
▇▇▇▇ ▇▇▇▇▇ and others
BRIDGE STREET FUND 1995, L.P.
G S CAPITAL PARTNERS II, ▇.▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. VERWALTUNGS GmbH
(for GS CAPITAL PARTNERS II GERMANY
CIVIL LAW PARTNERSHIP)
G S CAPITAL PARTNERS II OFFSHORE, ▇.▇.
▇▇▇▇▇ STREET FUND 1995, L.P.
______________________________
REGISTRATION RIGHTS
AGREEMENT
______________________________
CONTENTS
Clause Page
-i-
THIS REGISTRATION RIGHTS AGREEMENT is made on ___ January, 1996.
BETWEEN:
(1) STIRLING ▇▇▇▇▇ ▇▇▇▇▇ HOLDINGS LIMITED of Cedar House, 41 Cedar Avenue,
▇▇▇▇▇▇▇▇, Bermuda (the Company);
(2) THOSE PERSONS whose names and addresses are set out in Part A of Schedule 1
(the Management Shareholders); and
(3) THOSE PERSONS whose names and addresses are set out in Part B of Schedule 2
(the Investors).
WHEREAS:
(A) The Company, the Management Shareholders and the Investors have together
entered into an agreement of even date hereof regulating the manner in
which the Company and its subsidiaries will carry on business and the
manner in which the relationship between the Management Shareholders and
the Investors will be governed (the Shareholders' Agreement).
(B) Pursuant to the Shareholders' Agreement, the Company, the Management
Shareholders and the Investors have agreed to the provision of certain
registration rights with respect to the ordinary share capital of the
Company as are contained in this Agreement.
IT IS AGREED as follows:
DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following terms shall (unless the context otherwise
requires) have the following respective meanings:
Business Day means a day on which banks generally are open in New York and
London;
Commission means the United States Securities and Exchange Commission;
Holder or Holders means any party who is a signatory to this Agreement and any
party who shall hereafter acquire and hold Registrable Securities;
IPO means an offering of at least 15% of the Ordinary Share Capital of the
Company (on a fully diluted basis), whether in the United States or the United
Kingdom, which generates net proceeds in aggregate to the Company and/or Holders
(at that time) of at least USS$15 million (or the equivalent in United Kingdom
pounds sterling) and pursuant to which all or any of the Ordinary Shares become
registered under section 12 of the Securities Exchange Act of 1934, as amended
(the Exchange Act);
Ordinary Share Capital and Ordinary Shares mean the ordinary shares of US$1 each
in the
Company, from time to time in issue;
Ordinary Share Equivalents mean any securities convertible, exercisable or
exchangeable into ordinary shares;
Registrable Securities means any Ordinary Shares of the Company in issue and any
Ordinary Shares issuable on conversion, exercise or exchange of any Ordinary
Share Equivalents provided that any particular Registrable Securities shall
cease to be Registrable Securities when:
(i) a registration statement with respect to the sale of such securities
shall have been declared effective under the Securities Act and such
securities shall have been disposed of in accordance with such
registration statement; or
(ii) such securities shall have been sold (other than in a privately
negotiated sale) pursuant to Rule 144 (or any successor provision)
under the Securities Act and in compliance with the requirements of
paragraphs (f) and (g) of Rule 144 (notwithstanding the provisions of
paragraph (k) of such Rule); and
Securities Act means the United States Securities Act of 1933, as amended.
1.2 Except where the context requires otherwise, references to clauses and
Schedules are to clauses of and Schedules to this Agreement.
1.3 References in this Agreement to statutory provisions shall (where the
context so admits and unless otherwise expressly provided) be construed as
references to those provisions which are in force at any time prior to the date
of this Agreement as respectively amended, consolidated, extended or re-enacted
from time to time (whether before or after the date of this Agreement), and to
any orders, regulations, instruments or other subordinate legislation made under
such statutory provisions.
1.4 Headings are inserted for convenience only and shall not affect the
construction of this Agreement or the Schedules.
1.5 References to persons shall be deemed to include references to natural
persons, to firms, to partnerships (whether or not limited partnerships), to
companies, to corporations, to associations, to organisations and to trusts (in
each case whether or not having separate legal personality), but references to
individuals shall be deemed to be references to a natural person only;
1.6 Any references in this Agreement to 'US$' are to United States Dollars.
1.7 Wherever in this Agreement the Investors are expressed to be provided with
any right or entitlement, such right or entitlement may be exercised by any one
or all of the Investors, The ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, L.P., or any other subsidiary
undertaking of, or any investment vehicle,
-2-
including any limited partnership, the general partner, managing general partner
or managing agent of which is under the control (directly or indirectly) of, The
▇▇▇▇▇▇▇ Sachs Group L.P.
DEMAND REGISTRATIONS
2.1(a) Subject to clauses 2.2 and 3 below, at any time and from time to time
after the earlier of
(i) the closing of an IPO; and
(ii) three years following the date of the Shareholders'
Agreement
the Investors shall have the right to require the Company to file a
registration statement under the Securities Act covering all or any
part of their Registrable Securities, by delivering a written request
therefor to the Company specifying the number of Registrable
Securities to be included in such registration by each Investor and
the intended method of distribution thereof, such requests by the
Investors being Demand Registration Requests and the registrations so
requested being Demand Registrations.
(b) As promptly as practicable, but no later than ten days after receipt
of a Demand Registration Request, the Company shall give written
notice (the Demand Exercise Notice) of such Demand Registration
Request to all Holders of record of Registrable Securities.
(c) The Company, subject to clauses 3 and 6, shall include in a Demand
Registration:
(i) the Registrable Securities in respect of which the Investors
requested such registration; and
(ii) the Registrable Securities of any Holder which shall have
made a written request to the Company for registration
thereof (which request shall specify the maximum number of
Registrable Securities intended to be disposed of by such
Holder(s)) within 30 days after the receipt by the Holder of
the Demand Exercise Notice (or 15 days if, at the request of
the Holder(s) which requested such registration, the Company
states in such written notice or gives telephonic notice to
all Holders, with written confirmation to follow promptly
thereafter, that such registration will be on Form F-3).
(d) The Company shall, as expeditiously as possible following a Demand
Registration Request, use its best efforts to:
-3-
(i) effect such registration under the Securities Act
(including, without limitation, by means of a shelf
registration pursuant to Rule 415 under the Securities Act,
if so requested and if the Company is then eligible to use
such a registration) of the Registrable Securities which the
Company has been so requested to register, for distribution
in accordance with such intended method of distribution; and
(ii) if requested by the Investors, obtain acceleration of the
effective date of the registration statement relating to
such registration.
(e) The Investors may make Demand Registration Requests on a maximum of
five separate occasions, but in calculating how many requests the
Investors have made for the purposes of this clause 2.1(e), Demand
Registration Requests which are not effected (for any reason) shall
not be included.
2.2 The Company shall not be required to cause a registration pursuant to
clause 2.1 (a) to be declared effective:
(a) within a period of 180 days after the effective date of any other
registration statement of the Company other than a registration under
Form S-8.
(b) in accordance with clause 2.5, in the event that a Valid Business
Reason (as defined in clause 2.5 (a)) exists.
2.3 The Company, subject to clauses 3 and 6, may elect to include in any
registration statement and offering made pursuant to clause 2.1:
(a) authorised but unissued Ordinary Shares; and
(b) any other Ordinary Shares which are requested to be included in such
registration pursuant to the exercise of piggyback registration rights
granted by the Company after the date hereof in accordance with the
terms of this Agreement (Additional Piggyback Rights) provided,
however, that such inclusion shall be permitted only to the extent
that it is pursuant to and subject to the terms of the underwriting
agreement or arrangements, if any, entered into by the Investors on
the Demand Registration.
2.4 ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. (GS & Co.) shall have the right to act as the lead
managing underwriter in any registration of Registrable Securities. If GS & Co.
acts as managing underwriter in any such registered offering, to the extent
required by applicable law, a Qualified Independent Underwriter (as defined in
Schedule E to the National Association of Securities Dealers, Inc. By-Laws), as
approved by GS & Co. (whose approval shall not be unreasonably withheld), shall
be retained by the Company, and the Company shall pay all fees and expenses
-4-
(other than underwriting discounts and commissions) of such Qualified
Independent Underwriter.
2.5(a) If the Board of Directors of the Company, in its good faith judgement,
determines that any registration of Registrable Securities should not be made or
continued because it would materially interfere with any material financing,
acquisition, corporate reorganisation or merger or other transaction involving
the Company or any of its subsidiaries (a Valid Business Reason), the Company
may postpone filing a registration statement relating to a Demand Registration
Request until such Valid Business Reason no longer exists, but in no event for
more than six months, and, in case a registration statement has been filed
relating to a Demand Registration Request, if the Valid Business Reason has not
resulted from actions taken by the Company, the Company may cause such
registration statement to be withdrawn and its effectiveness terminated or may
postpone amending or supplementing such registration statement. The Company
shall give written notice of its determination to postpone or withdraw a
registration statement and of the fact that the Valid Business Reason for such
postponement or withdrawal no longer exists, in each case, promptly after the
occurrence thereof. If the Company shall give any notice of withdrawal or
postponement of a registration statement, the Company shall, at such time as the
Valid Business Reason that caused such withdrawal or postponement no longer
exists (but in no event later than six months after the date of the
postponement), use its best efforts to effect the registration under the
Securities Act of the Registrable Securities covered by the withdrawn or
postponed registration statement in accordance with this Agreement (unless the
Investor(s) making the Demand Registration Request shall have withdrawn such
request, in which case the Company shall not be considered to have effected an
effective registration for the purposes of this Agreement), and such
registration shall not be withdrawn or postponed pursuant to clauses 2.2(a) or
2.2(b).
2.5(b) If the Company shall give any notice of postponement or withdrawal of
any registration statement, the Company shall not, during the period of
postponement or withdrawal, register any Registrable Securities, other than
pursuant to a registration statement on Form F4 or S-8 (or an equivalent
registration form then in effect). Each Holder of Registrable Securities agrees
that, upon receipt of any notice from the Company that the Company has
determined to withdraw any registration statement pursuant to clause 2.5(a)
above, such Holder will discontinue its disposition of Registrable Securities
pursuant to such registration statement and, if so directed by the Company, will
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such Holder's possession of the prospectus
covering such Registrable Securities that was in effect at the time of receipt
of such notice. If the Company shall have withdrawn or prematurely terminated a
registration statement filed pursuant to a Demand Registration Request (whether
pursuant to clause 2.5(a) above or as a result of any stop order, injunction or
other order or requirement of the Commission or any other governmental agency or
court), the Company shall not be considered to have effected an effective
registration for the purposes of this Agreement until the Company shall have
filed a new registration statement covering the Registrable Securities covered
by the withdrawn registration statement and such registration statement shall
have been declared effective and shall not have been withdrawn.
-5-
2.6. If, at any time, the Company proposes or is required to register any of
its equity securities under the Securities Act (other than pursuant to (i)
registrations on such form or similar form(s) solely for registration of
securities in connection with an employee benefit plan or dividend reinvestment
plan or a merger or consolidation or (ii) a Demand Registration under Section
2.1(a)) the Company shall give prompt written notice of its intention to do so
to each of the Investors. Upon the written request of any Investor, made within
30 days following the receipt of any such written notice from the company (which
request shall specify the maximum number of Registrable Securities intended to
be disposed of by such Investor and the intended method of distribution thereof)
the Company shall use its best efforts to cause all such Registrable Securities
specified in the notice to be registered under the Securities Act (with the
securities which the Company at the time proposes to register) to permit the
sale or other disposition by the Investors (in accordance with the intended
method of distribution thereof) of the Registrable Securities to be so
registered. There is no limitation on the number of such piggyback
registrations which the Company is obligated to effect pursuant to this clause
2.6. No registration effected under this Section 2.1(b) shall relieve the
Company of its obligations to effect Demand Registrations.
ALLOCATION OF SECURITIES
3.1 If any Demand Registration pursuant to clause 2.1 involves an underwritten
offering and the managing underwriter advises the Company that, in its view, the
number of securities requested to be included in such registration by the
Holders or any other persons (including those securities requested by the
Company or by Holders exercising Additional Piggyback Rights to be included in
such registration) exceeds the largest number (the Demand Registration Sale
Number) that can be sold in an orderly manner in such offering within a price
range acceptable to the Investors, the Company shall include in such
registration:
(a) first, all Registrable Securities requested to be included in such
registration by Holders of Registrable Securities provided that, if
the number of such Registrable Securities exceeds the Demand
Registration Sale Number, the number of such Registrable Securities
(not to exceed the Demand Registration Sale Number) to be included in
such registration shall be allocated:
(i) first to the Investors up to the number of shares requested
to be included in the Demand Registration Request; and
(ii) thereafter on a pro rata basis among all Holders other than
the Investors requesting that Registrable Securities be
included in such registration, based on the number of
Registrable Securities then owned by each other Holder
requesting inclusion in relation to the number of
Registrable Securities owned by all Holders requesting
inclusion, provided, however, that such ratio will be
calculated after giving effect to the sale of Registrable
Securities by the Investors pursuant to clause 3(a)(i);
-6-
(b) second, to the extent that the number of Registrable Securities to be
included by all Holders is less than the Demand Registration Sale
Number, the Registrable Securities that the Company proposes to
register; and
(c) third, to the extent that the number of Registrable Securities to be
included by all Holders and the number of securities to be included by
the Company is less than the Demand Registration Sale Number, any
other securities that the holders thereof propose to register pursuant
to the exercise of Additional Piggyback Rights.
3.2 If, as a result of the proportion provisions of clause 3.1 any Holder shall
not be entitled to include all Registrable Securities in a registration that
such Holder has requested be included, such Holder may elect to withdraw his
request to include Registrable Securities in such registration or may reduce the
number requested to be included provided that:
(a) such request must be made in writing prior to the earlier of the
execution of the underwriting agreement or the execution of the
custody agreement with respect to such registration; and
(b) such withdrawal shall be irrevocable and, after making such
withdrawal, a Holder shall no longer have any right to include
Registrable Securities in the registration as to which such withdrawal
was made.
REGISTRATION PROCEDURES
4.1 If and whenever the Company is required by the provisions of this Agreement
to use its best efforts to effect or cause the registration of any Registrable
Securities under the Securities Act as provided in this Agreement, the Company
shall, as expeditiously as possible:
(a) Prepare and file with the Commission a registration statement on an
appropriate registration form of the Commission for the disposition of
such Registrable Securities in accordance with the intended method of
disposition thereof, which form:
(i) shall be selected by the Company; and
(ii) shall, in the case of a shelf registration, be available for the
sale of the Registrable Securities by the selling Holders thereof
and such registration statement shall comply as to form in all
material respects with the requirements of the applicable form and
include all financial statements required by the Commission to be
filed therewith, and the Company shall use its best efforts to cause
such registration statement to become and remain effective (provided,
however, that before filing a registration statement or prospectus or
-7-
any amendments or supplements thereto, or comparable statements under
securities or "blue sky" laws of any jurisdiction, the Company will
furnish to counsel for the Investors and the underwriters, if any,
copies of all such documents proposed to be filed (including all
exhibits thereto), which documents will be subject to the reasonable
review and reasonable comment of such counsel, and the Company shall
not file any registration statement or amendment thereto or any
prospectus or supplement thereto to which the Investors or the
underwriters, if any, shall reasonably object in writing);
(b) Prepare and file with the Commission such amendments and supplements
to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement
effective for such period (which shall not be required to exceed 180
days) as any seller of Registrable Securities pursuant to such
registration statement shall request and to comply with the provisions
of the Securities Act with respect to the sale or other disposition of
all Registrable Securities covered by such registration statement in
accordance with the intended methods of disposition by the seller or
sellers thereof set forth in such registration statement;
(c) Furnish, without charge, to each seller of such Registrable Securities
and each underwriter, if any, of the securities covered by such
registration statement such number of copies of such registration
statement, each amendment and supplement thereto (in each case
including all exhibits), and the prospectus included in such
registration statement (including each preliminary prospectus) in
conformity with the requirements of the Securities Act, and other
documents, as such seller and underwriter may reasonably request in
order to facilitate the public sale or other disposition of the
Registrable Securities owned by such seller (the Company hereby
consenting to the use in accordance with all applicable law) of each
such registration statement (or amendment or post-effective amendment
thereto) and each such prospectus (or preliminary prospectus or
supplement thereto) by each such seller of Registrable Securities and
the underwriters, if any, in connection with the offering and sale of
the Registrable Securities covered by such registration statement or
prospectus);
(d) Use its best efforts to register or qualify the Registrable Securities
covered by such registration statement under such other securities or
laws of such jurisdictions as any sellers of Registrable Securities or
any managing underwriter, if any, shall reasonably request, and do any
and all other acts and things which may be reasonably necessary or
advisable to enable such sellers or underwriter, if any, to consummate
the disposition of the Registrable Securities in such jurisdictions
provided, however, that the Company shall not for any purpose be
required to qualify generally to transact business as a foreign
corporation in any jurisdiction where it is not already so qualified
or to consent to general service of process in any such jurisdiction;
-8-
(e) Promptly notify each Holder selling Registrable Securities covered
by such registration statement and each managing underwriter, if any:
(i) when the registration statement, any pre-effective amendment,
the prospectus or any prospectus supplement related thereto or
post-effective amendment to the registration statement has been
filed and, with respect to the registration statement or any
post effective amendment, when the same has become effective;
(ii) of any request by the Commission or state securities authority
for amendments or supplements to the registration statement or
the prospectus related thereto or for additional information;
(iii) of the issuance by the Commission of any stop order suspending
the effectiveness of the registration statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company of any notification with respect
to the suspension of the qualification of any Registrable
Securities for sale under the securities or "blue sky" laws of
any jurisdiction or the initiation of any proceeding for such
purpose;
(v) of the existence of any fact of which the Company becomes aware
which results in the registration statement, the prospectus
related thereto or any document incorporated therein by
reference containing an untrue statement of a material fact or
omitting to state a material fact required to be stated therein
or necessary to make any statement therein not misleading; and
(vi) if at any time the representations and warranties contemplated
by clauses 10.1 and 10.2 below cease to be true and correct in
all material respects; and, if the notification relates to an
event described in clause 4.1(e)(v), the Company shall promptly
prepare and furnish to each such seller and each underwriter, if
any, a reasonable number of copies of a prospectus supplemented
or amended so that, as thereafter delivered to the purchasers of
such Registrable Securities, such prospectus shall not include
an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein in the light of the circumstances under
which they were made not misleading;
(f) Comply with all applicable rules and regulations of the Commission,
and make generally available to its security holders, as soon as
reasonably practicable after the effective date of the registration
statement (and in any event within 16 months thereafter), an earnings
statement (which need not be audited) covering the period of at least
twelve consecutive months beginning with the first day of the
-9-
Company's first calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the
provisions of section 11(a) of the Securities Act and Rule 158
thereunder;
(g) (i) Cause all such Registrable Securities covered by such
registration statement to be listed on the principal securities
exchange on which similar securities issued by the Company are
then listed (if any), if the listing of such Registrable
Securities is then permitted under the rules of such exchange, or
(ii) if no similar securities are then so listed, and the requirements
set out in clause 11.1(a) of the Shareholders' Agreement are
satisfied and provided it has been so determined in accordance
with the Shareholders' Agreement, to cause all such Registrable
Securities to be listed on the New York Stock Exchange or to
secure designation of all such Registrable Securities as a
National Association of Securities Dealers, Inc. Automated
Quotation System (NASDAQ) national market system security within
the meaning of Rule 11Aa2-1 of the Commission or, failIng that,
but subject to the consent of the Investors, secure NASDAQ
authorisation for such shares, and, without limiting the
generality of the foregoing, take all actions that may be
required by the Company as the issuer of such Registrable
Securities in order to facilitate the managing underwriter's
arranging for the registration of at least two market makers as
such with respect to such shares with the National Association of
Securities Dealers, Inc. (the NASD);
(h) Provide and cause to be maintained a transfer agent and registrar for
all such Registrable Securities covered by such registration statement
not later than the effective date of such registration statement;
(i) Enter into such customary agreements (including, if applicable, an
underwriting agreement) and take such other actions as the Investors
shall reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities. The Investors shall be
parties to such underwriting agreement and may, at their option,
require that the Company make to and for the benefit of the Investors
the representations, warranties and covenants of the Company which are
being made to and for the benefit of such underwriters and which are
of the type customarily provided to institutional investors in
secondary offerings;
(j) Use its best efforts to obtain an opinion from the Company's counsel
and a "cold comfort" letter from the Company's independent public
accountants in customary form and covering such matters as are
customarily covered by such opinions and "cold comfort" letters
delivered to underwriters in underwritten public offerings, which
opinion and letter shall be reasonably satisfactory to the
underwriter, if
-10-
any, and to the Investors and furnish to each Holder participating in
the offering and to each underwriter, if any, a copy of such opinion
and letter addressed to such Holder or underwriter;
(k) Deliver promptly to each Holder participating in the offering and each
underwriter, if any, copies of all correspondence between the
Commission and the Company, its counsel or auditors and all memoranda
relating to discussions with the Commission or its staff with respect
to the registration statement, other than those portions of any such
correspondence and memoranda which contain information subject to
attorney-client privilege with respect to the Company, and, upon
receipt of such confidentiality agreements as the Company may
reasonably request, make reasonably available for inspection by any
seller of such Registrable Securities covered by such registration
statement, by any underwriter, if any, participating in any
disposition to be effected pursuant to such registration statement and
by any attorney, accountant or other agent retained by any such seller
or any such underwriter, all pertinent financial and other records,
pertinent corporate documents and properties of the Company, and cause
all of the Company's officers, directors and employees to supply all
information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such registration
statement;
(l) Use its best efforts to obtain the withdrawal of any order suspending
the effectiveness of the registration statement;
(m) Provide a CUSIP number for all Registrable Securities, not later than
the effective date or the registration statement:
(n) Make reasonably available its employees and personnel and otherwise
provide reasonable assistance to the underwriters (taking into account
the needs of the Company's businesses and the requirements of the
marketing process) in the marketing of Registrable Securities in any
underwritten offering;
(o) Promptly prior to the filing of any document which is to be
incorporated by reference into the registration statement or the
prospectus (after the initial filing of such registration statement)
provide copies of such document to counsel for the selling holders of
Registrable Securities and to the managing underwriter, if any, and
make the Company's representatives reasonably available for discussion
of such document and make such changes in such document concerning the
selling holders prior to the filing thereof as counsel for such
selling holders or underwriters may reasonably request;
(p) Furnish to each Holder participating in the offering and the managing
underwriter, without charge, at least one signed copy of the
registration statement and any post-effective amendments thereto,
including financial statements and
-11-
schedules, all documents incorporated therein by reference and all
exhibits (including those incorporated by reference);
(q) Cooperate with the selling holders of Registrable Securities and the
managing underwriter, if any, to facilitate the timely preparation and
delivery of certificates not bearing any restrictive legends
representing the Registrable Securities to be sold, and cause such
Registrable Securities to be issued in such denominations and
registered in such names in accordance with the underwriting agreement
prior to any sale of Registrable Securities to the underwriters or, if
not an underwritten offering, in accordance with the instructions of
the selling holders of Registrable Securities at least three business
days prior to any sale of Registrable Securities; and
(r) Take all such other commercially reasonable actions as are necessary
or advisable in order to expedite or facilitate the disposition of
such Registrable Securities.
4.2 The Company may require as a condition precedent to the Company's
obligations under clauses 4.1(a) to 4.1(r) that each seller of Registrable
Securities as to which any registration is being effected furnish the Company
such information regarding such seller and the distribution of such securities
as the Company may from time to time reasonably request provided that such
information shall be used only in connection with such registration.
4.3 Each Holder of Registrable Securities agrees that upon receipt of any
notice from the Company of the happening of any event of the kind described in
clause 4.1(e)(v), such Holder will discontinue such Holder's disposition of
Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by clause 4.1(e) and, if so
directed by the Company, will deliver to the Company (at the Company's expense)
all copies, other than permanent file copies, then in such Holder's possession
of the prospectus covering such Registrable Securities that was in effect at the
time of receipt of such notice. In the event the Company shall give any such
notice, the applicable period mentioned in clause 4.1(b) shall be extended by
the number of days during such period from and including the date of the giving
of such notice to and including the date when each seller of any Registrable
Securities covered by such registration statement shall have received the copies
of the supplemental or amended prospectus contemplated by clause 4.1(e).
4.4 If any such registration statement or comparable statement under "blue sky"
laws refers to any Holder by name or otherwise as the Holder of any securities
of the Company, then such Holder shall have the right to require:
(a) the insertion therein of language, in form and substance satisfactory
to such Holder and the Company, to the effect that the holding by such
Holder of such securities is not to be construed as a recommendation
by such Holder of the investment quality of the Company's securities
covered thereby and that such
-12-
holding does not imply that such Holder will assist in meeting any
future financial requirements of the Company; or
(b) in the event that such reference to such Holder by name or otherwise
is not in the judgment of the Company, as advised by counsel, required
by the Securities Act or any similar federal statute or any state
"blue sky" or securities law then in force, the deletion of the
reference to such Holder.
REGISTRATION EXPENSES
5.1 Expenses shall mean any and all fees and expenses incident to the Company's
performance of or compliance with this Agreement, including, without limitation:
(a) Commission, stock exchange or NASD registration and filing fees and all
listing fees and fees with respect to the inclusion of securities in
NASDAQ;
(b) fees and expenses of compliance with state securities or "blue sky" laws
and in connection with the preparation of a "blue sky" survey, including
without limitation, reasonable fees and expenses of "blue sky" counsel;
(c) printing and copying expenses;
(e) messenger and delivery expenses;
(f) fees and disbursements of counsel for the Company;
(g) with respect to each registration, the reasonable fees and disbursements of
one counsel for the Investors;
(h) fees and disbursements of all independent public accountants (including the
expenses of any audit and/or "cold comfort" letter) and fees and expenses
of other persons, including special experts, retained by the Company;
(i) fees and expenses payable to a Qualified Independent Underwriter; and
(j) any other fees and disbursements of underwriters, if any, customarily paid
by issuers or sellers of securities.
5.2 Subject to clause 5.7, the Company shall pay all Expenses with respect to
any Demand Registration Request that is not effected, for whatever reason.
5.3 Subject to clause 5.7, with respect to any Demand Registration effected
pursuant to clause 2.1;
-13-
(a) the Company shall pay all Expenses related to the first three Demand
Registrations; and
(b) the Holders of Registrable Securities (together with the Company, if the
Company participates in any Demand Registration pursuant to clause 2.3)
shall pay all Expenses related to any other Demand Registration (such
Expenses shall be allocated among the persons (including the Company, if
applicable) participating in a Demand Registration on a pro rata basis
based on the number of Registrable Securities included in such offering by
a person relative to the number of Registrable Securities included in such
offering by all persons, except to the extent Expenses are specifically
attributable to a person or to securities included in an offering by a
person).
5.4 The provisions of this clause 5 shall be deemed amended to the extent
necessary to cause these expense provisions to comply with "blue sky" laws of
each state in which the offering is made.
5.5 In connection with any registration hereunder, each Holder of Registrable
Securities being registered shall pay all underwriting discounts and commissions
and any transfer taxes, if any, attributable to the sale of such Registrable
Securities, pro rata with respect to payments of discounts and commissions in
accordance with the number of shares sold in the offering by such Holder. Any
obligation on the Company to pay monies pursuant to this clause shall be subject
to clause 5.7.
5.6 Subject to clause 5.7, the Company shall, in the case of all registrations
under this Agreement be responsible for all its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties).
5.7(a) The obligation on the Company pursuant to this clause 5 to pay any
Expenses or bear the cost of any other payments or expenses pursuant to
clauses 5.5 or 5.6 (the Other Costs) shall apply only to the extent that
payment of such Expenses or Other Costs is lawful under Bermuda law.
(b) To the extent that the Company may only pay Expenses or Other Costs
lawfully under Bermuda law pursuant to this clause 5 if payment of such
Expenses or Other Costs is approved in accordance with the procedure set
out in section 39B and section 39C of the Bermuda Companies Act 1981
(respectively, the Procedure and the Sections), each of the Holders
agrees:
(i) to use all reasonable endeavours to procure that, at the appropriate
time and in accordance with the time periods set out in the Sections,
the Procedure is undertaken by the Holders, the Company and its
Directors and that all conditions applicable to the Procedure are
fulfilled; and
(ii) to consent to or vote in favour of any resolution proposed to the
Holders in relation to the Procedure.
-14-
(c) To the extent that the Company may not lawfully pay any Expenses or Other
Costs and such payment has not been approved in accordance with the
Procedure at such time as such expense would otherwise fall due for
payment, the Holders agree that all such Expenses and Other Costs shall be
borne by the Holders (other than the Company) in the same proportions as
represent their respective pro rata percentage share of the Registrable
Securities then in issue.
CERTAIN LIMITATIONS ON REGISTRATION RIGHTS
6. In the case of any Demand Registrations pursuant to an underwritten
offering, if the Company (with the approval of the Investors) has determined to
enter into an underwriting agreement in connection therewith, all securities to
be included in such registration shall be subject to an underwriting agreement
and no person may participate in such registration unless such person agrees to
sell such person's securities on the basis provided therein and completes and
executes all reasonable questionnaires, and other documents (other than powers
of attorney) which must be executed in connection therewith, and provides such
other information to the Company or the underwriter as may be necessary to
register such person's securities.
LIMITATIONS ON SALE OR DISTRIBUTION OF OTHER SECURITIES
7.1 Each Holder of Registrable Securities agrees, if requested in writing by
the Company or the managing underwriter, if any, of any registration effected
pursuant to clause 2.1, not to effect any public sale or distribution (including
any sale pursuant to Rule 144 under the Securities Act) of any Registrable
Securities, of any other equity security of the Company or of any security
convertible into or exchangeable or exercisable for any equity security of the
Company other than as part of such underwritten public offering during the time
period reasonably requested by the managing underwriter, not to exceed 180 days
and the Company hereby also so agrees (except that the Company may effect any
sale or distribution of any such securities pursuant to a registration on Form
F4 (if reasonably acceptable to the managing underwriter) or Form S-8, or any
successor or similar form which is then in effect) and agrees to use its
reasonable best efforts to cause each holder of any equity security or of any
security convertible into or exchangeable or exercisable for any equity security
of the Company purchased from the Company at any time other than in a public
offering so to agree.
7.2 The Company hereby agrees that, if it shall previously have received a
request for registration pursuant to clause 2.1, and if such previous
registration shall not have been withdrawn or abandoned, the Company shall not
effect any registration of any of its securities under the Securities Act (other
than a registration on Form F-4 or Form S-8 or any successor or similar form
which is then in effect), whether or not for sale for its own account, until a
period of 180 days shall have elapsed from the effective date of such previous
registration, and the Company shall so provide in any registration rights
agreements hereafter entered into with respect to any of its securities.
NO REQUIRED SALE
-15-
9. Nothing in this Agreement shall be deemed to create an independent
obligation on the part of any Holder to sell any Registrable Securities pursuant
to any effective registration statement.
INDEMNIFICATION
9.1 Subject to clause 9.2, in the event of any registration of any securities
of the Company under the Securities Act pursuant to this Agreement, the Company
will, and hereby does, indemnify and hold harmless, to the fullest extent
permitted by law, each Holder of Registrable Securities, its directors,
officers, fiduciaries, employees and stockholders or general and limited
partners (and the directors, officers, employees, stockholders and general and
limited partners thereof, each other individual, partnership, joint venture,
corporation, trust, unincorporated organisation or government or any department
or agency thereof (each, a Person) who participates as an underwriter or a
Qualified Independent Underwriter, if any, in the offering or sale of such
securities, each officer, director, employee, stockholder or general or limited
partner of such underwriter or Qualified Independent Underwriter, and each other
Person, if any, who controls such seller or any such underwriter within the
meaning of the Securities Act, against any and all losses, claims, damages or
liabilities, joint or several, actions or proceedings (whether commenced or
threatened) in respect thereof (Claims) and expenses (including reasonable fees
of counsel and any amounts paid in any settlement effected with the Company's
consent, which consent shall not be unreasonably withheld or delayed) to which
each such indemnified party may become subject under the Securities Act or
otherwise, insofar as such Claims or expenses arise out of or are based upon:
(a) any untrue statement or alleged untrue statement of a material fact
contained in any registration statement under which such securities were
registered under the Securities Act or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading;
(b) any untrue statement or alleged untrue statement of a material fact
contained in any preliminary, final or summary prospectus or any amendment
or supplement thereto, together with the documents incorporated by
reference therein, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; or
(c) any violation by the Company of any federal, state or common law rule or
regulation applicable to the Company and relating to action required of or
inaction by the Company in connection with any such registration
and the Company will reimburse any such indemnified party for any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such Claim as such expenses are incurred.
9.2 The Company shall not be liable to a Person otherwise indemnified pursuant
to clause
-16-
9.1 to the extent a Claim or expense arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact or omission or alleged
omission of a material fact made in a registration statement or amendment
thereof or supplement thereto or in a prospectus or a preliminary, final or
summary prospectus in reliance upon and in conformity with written information
furnished to the Company by or on behalf of such Person specifically for use
therein.
9.3 Subject to clause 9.4, each Holder of Registrable Securities that are
included in the securities as to which any Demand Registration is being effected
(and, if the Company, with the approval of the Investors, so requires as a
condition to including any Registrable Securities in any Demand Registration
Statement, any underwriter and Qualified Independent Underwriter, if any) shall,
severally and not jointly, indemnify and hold harmless (in the same manner and
to the same extent as set forth in clause 9.1) to the extent permitted by law
the Company, its officers and directors, each Person controlling (within the
meaning of the Securities Act) the Company and all other prospective sellers and
their directors, officers, general and limited partners and respective
controlling Persons with respect to any untrue statement or alleged untrue
statement of any material fact in, or omission or alleged omission of any
material fact from, such registration statement, any preliminary, final or
summary prospectus contained therein, or any amendment or supplement thereto, if
such statement or alleged statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Company or its representatives by or on behalf of such Holder or underwriter or
Qualified Independent Underwriter, if any, specifically for use therein and
reimburse such indemnified party for any legal or other expenses reasonably
incurred in connection with investigating or defending any such Claim as such
expenses are incurred. Such indemnity and reimbursement of expenses shall
remain in full force and effect regardless of any investigation made by or on
behalf of such indemnified party and, where applicable, shall survive the
transfer of securities by the Holder.
9.4 The aggregate amount which any such Holder shall be required to pay
pursuant to clauses 9.3, 9.5 and 9.7 shall in no case be greater than the amount
of the net proceeds received by such person upon the sale of the Registrable
Securities pursuant to the registration statement giving rise to such claim.
9.5 Indemnification similar to that specified in clauses 9.1 and 9.3 (with
appropriate modifications) shall be given by the Company (to the fullest extent
permitted by law) and each seller of Registrable Securities with respect to any
required registration or other qualification of securities under any state
securities and "blue sky" laws.
9.6 Any person entitled to indemnification under this Agreement shall notify
promptly the indemnifying party in writing of the commencement of any action or
proceeding with respect to which a claim for indemnification may be made clauses
9.1, 9.3 and 9.5, but the failure of any indemnified party to provide such
notice shall not relieve the indemnifying party of its obligations under those
clauses, except to the extent the indemnifying party is materially
-17-
prejudiced thereby and shall not relieve the indemnifying party from any
liability which it may have to any indemnified party otherwise than under this
Agreement. In case any action or proceeding is brought against an indemnified
party and it shall notify the indemnifying party of the commencement thereof,
and the indemnifying party shall be entitled to participate therein and, unless
in the reasonable opinion of outside counsel to the indemnified party a conflict
of interest between such indemnified and indemnifying parties may exist in
respect of such claim, to assume the defence thereof jointly with any other
indemnifying party similarly notified, to the extent that it chooses, with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified party
that it so chooses, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defence thereof other than reasonable
costs of investigation, provided that:
(a) if the indemnifying party fails to take reasonable steps necessary to
defend diligently the action or proceeding within 20 days after receiving
notice from such indemnified party that the indemnified party believes it
has failed to do so; or
(b) if such indemnified party who is a defendant in any action or proceeding
which is also brought against the indemnifying party reasonably shall have
concluded that there may be one or more legal defences available to such
indemnified party which are not available to the indemnifying party; or
(c) if representation of both parties by the same counsel is otherwise
inappropriate under applicable standards of professional conduct
then, in any such case, the indemnified party shall have the right to assume or
continue its own defence as set forth above (but with no more than one firm of
counsel for all indemnified parties in each jurisdiction, except to the extent
any indemnified party or parties reasonably shall have concluded that there may
be legal defences available to such party or parties which are not available to
the other indemnified parties or to the extent representation of all indemnified
parties by the same counsel is otherwise inappropriate under applicable
standards of professional conduct) and the indemnifying party shall be liable
for any expenses therefor. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(A) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (B) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
9.7 If for any reason the foregoing indemnity is unavailable or is
insufficient to hold harmless an indemnified party under clauses 9.1, 9.3 and
9.5 then each indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of any
-18-
Claim in such proportion as is appropriate to reflect the relative fault of the
indemnifying party, on the one hand, and the indemnified party, on the other
hand, with respect to such offering of securities. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the indemnifying party or the
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. If, however, the allocation provided in the second preceding sentence
is not permitted by applicable law, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative faults but also
the relative benefits of the indemnifying party and the indemnified party as
well as any other relevant equitable considerations. The parties hereto agree
that it would not be just and equitable if contributions pursuant to this clause
9.7 were to be determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in the preceding sentences of this clause 9.7. The amount paid or payable in
respect of any Claim shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such Claim. 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. Notwithstanding anything in this clause 9.7 to the contrary,
no indemnifying party (other than the Company) shall be required pursuant to
this clause 9.7 to contribute any amount in excess of the net proceeds received
by such indemnifying party from the sale of Registrable Securities in the
offering to which the losses, claims, damages or liabilities of the indemnified
parties relate, less the amount of any indemnification payment made by such
indemnifying party pursuant to clauses 9.3 and 9.5.
9.8 The indemnity agreements contained herein shall be in addition to any other
rights to indemnification or contribution which any indemnified party may have
pursuant to law or contract and shall remain operative and in full force and
effect regardless of any investigation made or omitted by or on behalf of any
indemnified party and shall survive the transfer of the Registrable Securities
by any such party.
9.9 The indemnification and contribution required by this clause 9 shall be
made by periodic payments of the amount thereof during the course of the
investigation or defence, as and when bills are received or expense, loss,
damage or liability is incurred.
9.10 To the extent that the Company may only comply lawfully under Bermuda law
with its obligations pursuant to this clause 9 if such compliance is approved in
accordance with the Procedure (as that term is defined in clause 5.7 hereof),
each of the Holders agrees:
(a) to use all reasonable endeavours to procure that, at the appropriate time
and in accordance with the time periods set out in the Sections (as that
term is defined in clause 5.7 hereof), the Procedure is undertaken by the
Holders, the Company and its Directors and that all conditions applicable
to the Procedure are fulfilled; and
-19-
(b) to consent to or vote in favour of any resolution proposed to the Holders
in relation to the Procedure.
REQUESTED UNDERWRITTEN OFFERINGS
--------------------------------
10.1 Subject to clause 10.2, if requested by the underwriters for any
underwritten offering by Holders pursuant to a Demand Registration Request, the
Company shall enter into a customary underwriting agreement with the
underwriters. Such underwriting agreement shall be satisfactory in form and
substance to the Investors and shall contain such representations and warranties
by, and such other agreements on the part of, the Company and such other terms
as are generally prevailing in agreements of that type, including, without
limitation, indemnities and contribution agreements. Any Holder participating
in the offering shall be a party to such underwriting agreement and may, at its
option, require that any or all of the representations and warranties by, and
the other agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such Holder and that
any or all of the conditions precedent to the obligations of such underwriters
under such underwriting agreement be conditions precedent to the obligations of
such Holder.
10.2 The underwriting agreement referred to in clause 10.1 shall contain such
representations and warranties by the participating Holders as are customary in
agreements of that type.
ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES
11.1 Subject to clause 11.2, the Company agrees that it shall not effect or
permit to occur any combination or subdivision of shares which would adversely
affect the ability of the Holder of any Registrable Securities to include such
Registrable Securities in any registration contemplated by this Agreement or the
marketability of such Registrable Securities in any such registration.
11.2 The Company agrees that it will take all reasonable steps necessary to
effect a subdivision of shares if in the reasonable judgment of:
(a) the Investors, on making a Demand Registration Request; and
(b) the managing underwriter for the offering in respect of such Demand
Registration Request
such subdivision would enhance the marketability of the Registrable Security and
each Holder agrees to vote all of its share of capital stock in a manner, and to
take all other actions necessary, to permit the Company to carry out the intent
of the preceding sentence.
RULE 144
--------
12.1 If the Company shall have filed a registration statement pursuant to the
requirements
-20-
of section 12 of the Exchange Act or a registration statement pursuant to the
requirement of the Securities Act in respect of the Ordinary Shares or Ordinary
Share Equivalents, the Company covenants that:
(a) so long as it remains subject to the reporting provisions of the Exchange
Act, it will timely file the reports required to be filed by it under the
Securities Act or the Exchange Act (including, but not limited to, the
reports under sections 13 and 15(d) of the Exchange Act referred to in
subparagraph (c)(1) of Rule 144 under the Securities Act); and
(b) it will take such further action as any Holder of Registrable Securities
may reasonably request,
all to the extent required from time to time to enable such Holder to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (A) Rule 144 under the Securities Act,
as such Rule may be amended from time to time or (B) any similar rule or
regulation hereafter adopted by the Commission.
12.2 Upon the request of any Holder of Registrable Securities, the Company will
deliver to such Holder a written statement as to whether it has complied with
the requirements set out in clause 12.1.
UNITED KINGDOM PUBLIC OFFERINGS
-------------------------------
13. The Investors shall have the right, at any time during which they have the
right to require a Demand Registration pursuant to clause 2.1, to require the
Company:
(a) to authorise and prepare (or assist in the preparation of) any prospectus
which may be required in order to make an offer of Ordinary Shares under
the Public Offers of Securities Regulations; and
(b) to take such other steps as are necessary for the Company to take to
facilitate the sale or offer of Ordinary Shares to the public in the United
Kingdom.
NOMINEES FOR BENEFICIAL OWNERS
------------------------------
14. If Registrable Securities are held by a nominee for the beneficial owner
thereof, the beneficial owner thereof may, at its option, be treated as the
Holder of such Registrable Securities for purposes of any request or other
action by any Holder or Holders of Registrable Securities pursuant to this
Agreement (or any determination of any number or percentage of shares
constituting Registrable Securities held by any Holder or Holders of Registrable
Securities contemplated by this Agreement), provided that the Company shall have
received assurances reasonably satisfactory to it of such beneficial ownership.
-21-
AMENDMENTS AND WAIVERS
----------------------
15. This Agreement may be amended, modified, supplemented or waived only upon
the written agreement of the party against whom enforcement of such amendment,
modification, supplement or waiver is sought.
MISCELLANEOUS
-------------
16.1 This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and the respective successors, personal
representatives and assigns of the parties hereto, whether so expressed or not.
No person other than a Holder shall be entitled to any benefits under this
Agreement, except as otherwise expressly provided herein.
16.2 This Agreement and the rights of the parties hereunder may be assigned by
any of the parties hereto in whole or in part to any transferee of Registerable
Securities provided that upon the consummation of, and as a condition to, any
such assignment the transferee assumes the obligations of the assignor under,
and agrees to be bound by the terms of, this Agreement.
16.3 This Agreement (with the documents referred to herein or delivered
pursuant hereto) embodies the entire agreement and understanding between the
parties hereto and supersedes all prior agreements and understandings relating
to the subject matter hereof.
16.4 This Agreement shall be construed and enforced in accordance with and
governed by the laws of the State of New York without giving effect to the
conflicts of law principles thereof.
16.5 This Agreement may be executed in any number of counterparts, each of
which shall be an original, but all of which together shall constitute one
instrument.
16.6 Any term or provision of this Agreement which is invalid or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this Agreement or affecting
the validity or enforceability of any of the terms or provisions of this
Agreement in any other jurisdiction.
16.7 It is hereby agreed and acknowledged that it will be impossible to measure
in money the damages that would be suffered if the parties fail to comply with
any of the obligations herein imposed on them and that in the event of any such
failure, an aggrieved person will be irreparably damaged and will not have an
adequate remedy at law. Any such person, therefore, shall be entitled to
injunctive relief, including specific performance, to enforce such obligations,
without the posting of any bond, and, if any action should be brought in equity
to enforce any of the provisions of this Agreement, none of the parties hereto
shall raise the defence that there is an adequate remedy at law.
-22-
16.8 Each party hereto shall do and perform or cause to be done and performed
all such further acts and things and shall execute and deliver all such other
agreements, certificates, instruments, and documents as any other party hereto
reasonably may request in order to carry out the intent and accomplish the
purposes of this Agreement and the consummation of the transactions contemplated
hereby.
NO INCONSISTENT AGREEMENTS
--------------------------
17. The Company shall not grant any registration rights to any person without
the prior written consent of the Investors and neither the Company nor any
Holder will, without the prior written consent of the Investors, on or after the
date of this Agreement, enter into any agreement with respect to its securities
which is inconsistent with the rights granted in this Agreement or otherwise
conflicts with the provisions hereof, other than any lock-up hereunder, pursuant
to which the Company shall agree not to register for sale, and not to sell or
otherwise dispose of, Ordinary Shares or any Ordinary Share Equivalents, for a
specified period following the registered offering.
NOTICES
-------
18.1 Any notice, instruction, consent or other document to be given under this
Agreement shall be in writing and delivered personally or by pre-paid recorded
delivery or facsimile (provided that, in the case of facsimile, the notice is
confirmed by being delivered by hand or sent by first class post within 72 hours
thereafter) to the recipient party at the address shown in Schedule 1 to this
Agreement (for the Management Shareholders) at the address shown in Schedule 2
(for the Investors) and in Schedule 3 (for the Company) or to such other
address, or to a facsimile number, as is notified in writing from time to time
by such party to each of the other parties.
18.2 Any notice delivered personally shall be deemed to be received when
delivered, any notice sent by pre-paid recorded delivery post shall be deemed to
have been received 5 Business Days after posting and any notice sent by
facsimile, at the time of transmission (provided that if transmission occurs
after 6 p.m. on a Business Day, or not on a Business Day, delivery will be
deemed to occur at 9 a.m. on the next Business Day). References to time in this
clause are references to local time in the country of the recipient of the
notice.
18.3 Each of the parties to this Agreement agrees, on the written request of
any Holder, forthwith to appoint, and to notify all other parties to this
Agreement of the identity and address of, an agent for service in either or both
of Bermuda and the state of New York.
IN WITNESS WHEREOF this Agreement has been executed by the parties the day and
------------------
year first before written.
-23-
SCHEDULE 1
THE MANAGEMENT SHAREHOLDERS
Name Address Address for service of
notices and fax
numbers
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ "Tunbridge ▇▇▇▇▇" ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ House
Smiths H502 ▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
For the attention of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ Fairs ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
For the attention of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ Beaufort House
▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
For the attention of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Redcroft ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
For the attention of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-24-
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ Beaufort House
Hornchurch ▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
For the attention of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 10 Mossbank ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Grays ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
For the attention of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Fishermans Cottages ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ on ▇▇▇▇▇▇ ▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
For the attention of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Sacy ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ Beaufort House
▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
For the attention of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-25-
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 2 Gainsborough Court ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
For the attention of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ Beaufort House
▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
For the attention of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ House ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Beech Beaufort House
Alton 15 St. Botolph Street
Hampshire GU34 4AX ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
For the attention of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Thollon ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
For the attention of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-26-
▇▇▇▇▇ ▇▇▇▇▇▇▇ Tarsh 4 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Admiral Walk Beaufort House
Carlton Gate ▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
For the attention of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Atteline 97 ▇▇▇▇▇▇▇▇▇▇ Sound Road ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ Smiths H502 Beaufort House
Bermuda ▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
For the attention of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ Beaufort House
▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
For the attention of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ c/o ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
For the attention of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-27-
SCHEDULE 2
THE INVESTORS
Name Address Address for service of
notice and fax number
Bridge Street Fund c/o The Corporation ▇▇▇▇▇▇▇ ▇▇▇▇▇
1995, L.P. Trust Company, International
Corporation Trust Center, Petersborough Court
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
U.S.A. For the attention of
▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax no. ▇▇▇▇ ▇▇▇ ▇▇▇▇
GS Capital c/o The Corporation ▇▇▇▇▇▇▇ ▇▇▇▇▇
Partners II, L.P. Trust Company, International
Corporation Trust Center, Petersborough Court
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
U.S.A. For the attention of
▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax no. ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Messe Turm ▇▇▇▇▇▇▇ Sachs
Co. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ International
GmbH as general Germany Petersborough Court
partner of GS ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Germany Civil For the attention of
Law Partnership ▇▇▇▇▇▇▇ ▇▇▇▇▇
(with limited Fax no. ▇▇▇▇ ▇▇▇ ▇▇▇▇
liability)
GS Capital c/▇ ▇▇▇▇▇▇ and Calder, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Partners II PO Box 309, International
Offshore, L.P. Grand Cayman, Petersborough Court
Cayman Islands, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
For the attention of
▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax no. ▇▇▇▇ ▇▇▇ ▇▇▇▇
-▇▇-
▇▇▇▇▇ ▇▇▇▇▇▇ Fund c/o The Corporation ▇▇▇▇▇▇▇ ▇▇▇▇▇
1995. L.P. Trust Company, International
Corporation Trust Center, Petersborough Court
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
U.S.A. For the attention of
▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax no. ▇▇▇▇ ▇▇▇ ▇▇▇▇
-29-
SCHEDULE 3
THE COMPANY
Name Address Address for service of
notice and fax number
Stirling ▇▇▇▇▇ Cedar House ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ Holdings ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
For the attention of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-30-
SIGNED by )
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ )
by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ )
his attorney in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by )
▇▇▇▇ ▇▇▇▇▇▇ FAIRS )
by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ )
his attorney in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by )
▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇ )
by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ )
his attorney in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by )
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ )
by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ )
his attorney in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by )
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ )
by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ )
his attorney in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by )
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ )
by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ )
his attorney in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by )
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ )
by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ )
his attorney in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by )
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ SACY )
by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ )
his attorney in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by )
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ )
in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by )
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ )
in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by )
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ )
BLOIS ▇▇▇▇▇▇▇ )
by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ )
his attorney in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by )
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ )
in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by )
▇▇▇▇▇ ▇▇▇▇▇▇▇ TARSH )
by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ )
his attorney in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by )
PENELOPE ATTELINE ▇▇▇▇▇ )
by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ )
his attorney in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by )
▇▇▇▇ ▇▇▇▇▇▇ )
by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ )
his attorney in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by )
▇▇▇▇▇ ▇▇▇▇▇▇ )
by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ )
his attorney in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by ▇▇▇▇ de POURTALES )
as attorney on behalf of the General )
Partner of BRIDGE STREET )
FUND 1995, L.P. )
in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by ▇▇▇▇ de POURTALES )
as attorney on behalf of ▇▇▇▇▇▇▇ )
SACHS & CO VERWALTUNGS )
GmbH as General Partner of )
GS CAPITAL PARTNERS II )
GERMANY CIVIL LAW )
PARTNERSHIP (with limited )
liability) in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by ▇▇▇▇ de POURTALES )
as attorney on behalf of the General )
Partner of GS CAPITAL )
PARTNERS II, L.P. in the presence )
of: )
Witness- Signature:
Name:
Address:
SIGNED by ▇▇▇▇ de POURTALES )
as attorney on behalf of the General )
Partner of GS CAPITAL )
PARTNERS II OFFSHORE, L.P. )
in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by ▇▇▇▇ de POURTALES )
as attorney on behalf of the General )
Partner of STONE STREET )
FUND 1995, L.P. )
in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by )
STIRLING ▇▇▇▇▇ ▇▇▇▇▇ )
HOLDINGS LIMITED )
acting by: )
Director:
Secretary: