EXHIBIT 10.1
AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
dated as of
December [__], 2003
among
UNITED NATIONAL GROUP, LTD.
and
THE SHAREHOLDERS LISTED
ON THE SIGNATURE PAGES
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS..................................................... 1
Section 1.1 Certain Definitions......................................... 1
Section 1.2 Other Definitions........................................... 4
Section 1.3 Interpretation.............................................. 5
ARTICLE II REPRESENTATIONS AND WARRANTIES................................. 5
Section 2.1 Representations and Warranties of the Company............... 5
Section 2.2 Representations and Warranties of Holdings.................. 6
Section 2.3 Representations and Warranties of the Trusts................ 6
Section 2.4 Representations and Warranties of the Co-investment Funds... 7
ARTICLE III BOARD COMPOSITION............................................. 7
Section 3.1 Composition of the Board..................................... 7
ARTICLE IV RESTRICTIONS ON TRANSFERS OF SHARES............................ 8
Section 4.1 General Limitations on Transfers............................ 8
Section 4.2 Compliance with Securities Laws............................. 9
Section 4.3 Permitted Transfers......................................... 10
Section 4.4 Tag-Along Rights............................................ 10
Section 4.5 Drag-Along Right............................................ 12
Section 4.6 Additional Provisions Relating to Restrictions on Transfers. 14
Section 4.7 Transfers Pursuant to Rule 144.............................. 15
ARTICLE V REGISTRATION RIGHTS............................................. 15
Section 5.1 Piggyback Registrations..................................... 15
Section 5.2 Registration Procedures..................................... 17
Section 5.3 Indemnification............................................. 20
Section 5.4 Rule 144 Reporting.......................................... 23
Section 5.5 Lock-Up Agreement........................................... 24
ARTICLE VI COVENANTS...................................................... 24
Section 6.1 No Voting or Conflicting Agreements......................... 24
Section 6.2 Further Assurances.......................................... 24
Section 6.3 Certain Transactions........................................ 24
Section 6.4 Confidentiality............................................. 25
ARTICLE VII EFFECTIVENESS; TERMINATION.................................... 25
Section 7.1 Effectiveness; Term.......................................... 25
ARTICLE VIII MISCELLANEOUS................................................ 25
Section 8.1 Notices..................................................... 25
Section 8.2 Amendment; Waivers.......................................... 27
Section 8.3 Successors and Assigns...................................... 27
Section 8.4 Recapitalizations and Exchanges Affecting Shares............ 27
-i-
PAGE
Section 8.5 Governing Law............................................... 27
Section 8.6 Jurisdiction................................................ 28
Section 8.7 WAIVER OF JURY TRIAL........................................ 28
Section 8.8 Counterparts; Third Party Beneficiaries..................... 28
Section 8.9 Entire Agreement............................................ 28
Section 8.10 Captions ................................................... 28
SECTION 8.11 SPECIFIC PERFORMANCE ....................................... 28
Section 8.12 Severability ............................................... 28
Section 8.13 Trustees ................................................... 29
Section 8.14 Uncertificated Shares ...................................... 29
AMENDED AND RESTATED SHAREHOLDERS AGREEMENT, dated as of December [__],
2003, by and among UNITED NATIONAL GROUP, LTD., an exempted company formed with
limited liability under the laws of the Cayman Islands (the "Company"), U.N.
HOLDINGS (CAYMAN), LTD. ("Holdings"), an exempted company formed with limited
liability under the laws of the Cayman Islands, those co-investment funds listed
on the signature pages of this Agreement (the "Co-investment Funds," and
together with Holdings, the "FPC Shareholders") and those trusts listed on the
signature pages of this Agreement (the "Trusts," and together with the FPC
Shareholders, the "Shareholders").
W I T N E S S E T H:
WHEREAS, Holdings, the Company, U.N. Holdings II, Inc., a Delaware
corporation ("U.S. Purchaser"), U.N. Holdings, LLC, a Delaware limited liability
company, U.N. Holdings Inc., a Delaware corporation ("U.N. Holdings"), Wind
River Investment Corporation, a Delaware corporation ("Wind River"), and the
Trusts entered into an Amended and Restated Investment Agreement, dated of as
September 5, 2003 (the "Investment Agreement"), the transactions contemplated by
which (the "Transactions") were completed on September 5, 2003;
WHEREAS, in connection with the Transactions, Holdings, the Trusts and the
Company entered into a Shareholders Agreement, dated as of September 5, 2003
(the "Original Agreement");
WHEREAS, on September 11, 2003, Holdings and the Trusts sold a portion of
their Shares to the Co-investment Funds (the "Co-investment");
WHEREAS, in connection with the Co-investment and immediately prior to the
completion of the proposed initial offering by the Company of Class A Common
Shares (the "IPO"), Holdings, the Trusts and the Company desire to amend and
restate the Original Agreement in its entirety and desire that the Co-investment
Funds shall become parties to this Agreement; and
WHEREAS, the Company, the FPC Shareholders and the Trusts desire to
establish in this Agreement certain terms and conditions concerning the
relationship among the Company, the FPC Shareholders and the Trusts and the
investment of the FPC Shareholders and the Trusts in the Company.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Definitions. As used in this Agreement, the following
terms shall have the meanings ascribed to them below:
"Affiliate" means, with respect to any Person, any other Person directly
or indirectly controlling, controlled by or under common control with such
Person.
"Agreement" means this Amended and Restated Shareholders Agreement.
"Claims" means losses, claims, damages, expenses, judgments or
liabilities, joint or several, actions or proceedings (whether commenced or
threatened).
"Class A Common Shares" means the Class A Common Shares, par value $0.0001
per share, of the Company.
"Class B Common Shares" means the Class B Common Shares, par value $0.0001
per share, of the Company.
"Common Shares" means the Class A Common Shares and the Class B Common
Shares.
"Competitor" means any Person that competes in a significant way with a
substantial business of the Company or any of its subsidiaries or a Person that
has a substantial investment in any such competing Person; provided, that an
institutional investor and its Affiliates shall not be considered Persons who
are Competitors by virtue of holding as a passive portfolio investment nonvoting
debt or less than 5% of the publicly traded equity securities of any such
Competitor. For purposes of this provision, the good faith determination of the
Board that a proposed Transferee is a Competitor, made within 30 days of written
notice to the Board of the proposed Transfer, shall in all respects be
conclusive.
"Exchange Act" means the United States Securities Exchange Act of 1934, as
amended, or any successor United States federal statute thereto, and the rules
and regulations of the SEC promulgated thereunder.
"FPC" means Fox ▇▇▇▇▇ & Company, LLC, a Delaware limited liability
company.
"NASD" means the National Association of Securities Dealers, Inc.
"Nasdaq" means The Nasdaq Stock Market, Inc.
"Person" means an individual, corporation, partnership, limited liability
company, association, trust or other entity or organization, including any
governmental authority.
"Preferred Shares" means the Series A Preferred Shares, par value $0.0001
per share, of the Company, the terms of which are attached as Exhibit 4 to the
Investment Agreement.
-2-
"Registrable Securities" means Common Shares, and any common shares or
other securities issued in respect of Shares or into which Shares shall be
converted in connection with share splits, reverse share splits, share dividends
or distributions, combinations or similar recapitalizations, or a merger,
consolidation or reorganization or otherwise; provided, however, as to any
particular Common Shares, such Common Shares shall cease to be Registrable
Securities when (a) a registration statement with respect to the sale of such
Common Shares shall have become effective under the Securities Act and such
Common Shares shall have been disposed of in accordance with such registration
statement, (b) such Common Shares shall have been sold pursuant to Rule 144, (c)
such Common Shares shall have been otherwise transferred and new certificates
for such Common Shares not bearing a legend restricting further transfer shall
have been delivered by the Company, or (d) such Common Shares shall have ceased
to be outstanding.
"Registration Expenses" means any and all expenses incident to performance
of or compliance with Article V, including (a) all SEC and stock exchange or the
NASD registration and filing fees, (b) all fees and expenses of complying with
United States federal and state securities laws and applicable foreign
securities laws (including reasonable fees and disbursements of counsel for the
underwriters in connection with United States "blue sky" qualifications of the
Registrable Securities), (c) all printing, messenger and delivery expenses, (d)
the fees and disbursements of counsel for the Company and of the Company's
independent public accountants, including the expenses of any special audits
and/or "cold comfort" letters required by or incident to such performance and
compliance, (e) the reasonable fees and disbursements of one counsel retained by
the Shareholders (such counsel to be chosen by the Shareholders by vote of a
plurality of the Registrable Securities of such Shareholders being registered)
as a group in connection with each such registration, (f) any fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities and the reasonable fees and expenses of any special experts retained
in connection with the requested registration, including any fee payable to a
qualified independent underwriter within the meaning of the rules of the NASD,
(g) internal expenses of the Company (including all salaries and expenses of its
officers and employees performing legal or accounting duties) and (h) securities
acts liability insurance (if the Company elects to obtain such insurance) but,
in all cases, excluding underwriting discounts and commissions and transfer
taxes, if any.
"Rule 144" means Rule 144 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, or any successor United States federal statute thereto, and the rules
and regulations of the SEC promulgated thereunder.
"Senior Notes" means the Senior Notes issued by Wind River to the Trusts
in the Transactions.
-3-
"Shares" means the Common Shares and the Preferred Shares.
"Transfer" means any sale, assignment, mortgage, pledge (other than
pledges to the Company and its Affiliates), encumbrance, redemption or other
transfer, directly or indirectly, whether or not for consideration.
"Transferee" means any Person to whom a Transfer is made, regardless of
the method of Transfer.
"Transferor" means any Person by whom a Transfer is made, regardless of
the method of Transfer.
"U.N. Holdings Common Stock" means the common stock, par value $0.01, of
U.N. Holdings.
"Wind River Common Stock" means the common stock, par value $1.00, of Wind
River.
Section 1.2 Other Definitions. Each of the following terms is defined in
the Section set forth opposite such term:
TERM SECTION
Action 8.6
Board 3.1
Board Composition 3.1
Book Entry Shares 8.14
Co-investment Recitals
Co-investment Funds Preamble
Company Preamble
Debt Securities 6.2
Drag-Along Right 4.5.1
Drag-Along Sale 4.5.1
Drag-Along Seller 4.5.2
FPC Affiliate Transferee 4.3.1(a)
FPC Seller 4.4.1
FPC Shareholders Preamble
FPC Shareholder Nominees 3.1(a)
Holdings Preamble
Investment Agreement Recitals
IPO Recitals
Maximum Sale Number 5.1.3
Joinder Agreement 4.1.3
Offer Shares 4.4.1
Offeree Shareholder 4.4.2
-4-
Original Agreement Recitals
Piggyback Notice 5.1.1
Piggyback Registration 5.1.1
Proposed Transferee 4.4.1
Sale Notice 4.4.1
Shareholders Preamble
Tag-Along Right 4.4.3(a)
Tag-Along Seller 4.4.3(b)
Tag-Along Shares 4.4.2
Transactions Recitals
Trust Affiliate Transferee 4.3.2(a)
Trusts Preamble
Trusts' Nominee 3.1(a)
U.N. Holdings Recitals
U.S. Purchaser Recitals
Violation 5.3(a)
Wind River Recitals
Section 1.3 Interpretation. Except as otherwise provided or if the context
requires otherwise, whenever used in the Agreement, (a) any noun or pronoun
shall be deemed to include the singular and the plural, (b) the terms "include"
and "including" shall be deemed to be followed by the phrase "without
limitation" and (c) the word "or" shall be inclusive and not exclusive.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of the Company. The Company
represents and warrants to each Shareholder as follows:
(a) The Company was duly organized as an exempted company formed with
limited liability under the laws of the Cayman Islands and is validly existing
and in good standing under the laws of the Cayman Islands, and has all necessary
power and authority to enter into this Agreement and to perform its obligations
under this Agreement.
(b) The execution, delivery and performance of this Agreement by the
Company has been duly and validly authorized by all necessary action, and no
other proceedings on the part of the Company are necessary to authorize this
Agreement or the performance of the Company's obligations under this Agreement.
(c) This Agreement has been duly executed and delivered by the Company,
and, assuming due authorization, execution and delivery by each other party,
constitutes a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject to (i) bankruptcy,
insolvency, reorganization, moratorium
-5-
or other similar laws affecting or relating to creditors' rights generally, and
(ii) limitations on the availability of specific performance or injunctive
relief or other equitable remedies.
Section 2.2 Representations and Warranties of Holdings. Holdings
represents and warrants to the Company, each of the Co-investment Funds and each
of the Trusts as follows:
(a) Holdings was duly organized as an exempted company formed with limited
liability under the laws of the Cayman Islands and is validly existing and in
good standing under the laws of the Cayman Islands, and has all necessary power
and authority to enter into this Agreement and to perform its obligations under
this Agreement.
(b) The execution, delivery and performance of this Agreement by Holdings
has been duly and validly authorized by all necessary action, and no other
proceedings on the part of Holdings are necessary to authorize this Agreement or
the performance of Holdings' obligations under this Agreement.
(c) This Agreement has been duly executed and delivered by Holdings, and,
assuming due authorization, execution and delivery by each other party,
constitutes a legal, valid and binding obligation of Holdings, enforceable
against Holdings in accordance with its terms, subject to (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting or
relating to creditors' rights generally, and (ii) limitations on the
availability of specific performance or injunctive relief or other equitable
remedies.
Section 2.3 Representations and Warranties of the Trusts. Each Trust,
severally and not jointly, represents and warrants to the Company, Holdings and
each of the Co-investment Funds as follows:
(a) Such Trust is a trust duly formed, validly existing and, if
applicable, in good standing under the laws of its jurisdiction of formation,
and has all necessary power and authority to enter into this Agreement and to
perform its obligations under this Agreement.
(b) The execution, delivery and performance of this Agreement by such
Trust has been duly and validly authorized by all necessary trust action, and no
other proceedings on the part of such Trust are necessary to authorize this
Agreement or the performance of such Trust's obligations under this Agreement.
(c) This Agreement has been duly executed and delivered by such Trust,
and, assuming due authorization, execution and delivery by each other party,
constitutes a legal, valid and binding obligation of such Trust, enforceable
against such Trust in accordance with its terms, subject to (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting or
relating to creditors' rights generally, and (ii) limitations on the
availability of specific performance or injunctive relief or other equitable
remedies.
-6-
Section 2.4 Representations and Warranties of the Co-investment Funds.
Each Co-investment Fund, severally and not jointly, represents and warrants to
the Company, Holdings and each of the Trusts as follows:
(a) Such Co-investment Fund was duly organized as a limited partnership
under the laws of the Cayman Islands and is validly existing and in good
standing under the laws of the Cayman Islands, and has all necessary power and
authority to enter into this Agreement and to perform its obligations under this
Agreement.
(b) The execution, delivery and performance of this Agreement by such
Co-investment Fund has been duly and validly authorized by all necessary action,
and no other proceedings on the part of such Co-investment Fund are necessary to
authorize this Agreement or the performance of such Co-investment Fund's
obligations under this Agreement.
(c) This Agreement has been duly executed and delivered by such
Co-investment Fund, and, assuming due authorization, execution and delivery by
each other party, constitutes a legal, valid and binding obligation of such
Co-investment Fund, enforceable against such Co-investment Fund in accordance
with its terms, subject to (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting or relating to creditors' rights
generally, and (ii) limitations on the availability of specific performance or
injunctive relief or other equitable remedies.
ARTICLE III
BOARD COMPOSITION
Section 3.1 Composition of the Board. The Company shall be managed subject
to the overall direction and supervision of its Board of Directors (the
"Board"). The parties shall take all necessary actions as may be required under
applicable law (including voting all Shares and executing written resolutions of
shareholders) to cause the Board, effective from and after the date of this
Agreement, to have, and the parties shall refrain from taking any action
(including voting any Shares or executing any written consents of shareholders)
that would cause the Board, effective from and after the date of this Agreement,
not to have, the following size and composition (the "Board Composition"):
(a) The Board shall consist of no fewer than eleven directors and shall
include (i) no fewer than six directors nominated for election by the FPC
Shareholders (which individuals shall initially be ▇▇▇▇ ▇. ▇▇▇, W. ▇▇▇▇▇▇ ▇▇▇▇▇,
III, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇) (the "FPC Shareholder Nominees"), (ii) for so long as the Trusts
together with any Trust Affiliate Transferees, in the aggregate, beneficially
own 5% of the outstanding Shares, one director nominated by the Trusts (which
individual shall initially be ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, III) (the "Trusts' Nominee") and
(iii) a sufficient number of "independent directors" (within the meaning of Rule
4200 of the Nasdaq Rules)
-7-
such that the Board complies with Rule 4350(c) of the Nasdaq Rules (which
individuals shall initially include ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇).
(b) The FPC Shareholders may at any time cause any FPC Shareholder Nominee
to be removed from the Board with or without cause at their sole discretion, and
the Trusts may at any time cause the Trusts' Nominee to be removed from the
Board with or without cause at their sole discretion.
(c) If a vacancy on the Board occurs at any time as a result of the death,
disability, resignation, retirement or removal of any director, the party or
parties nominating the director whose death, disability, resignation, retirement
or removal caused such vacancy shall have the right to nominate for election or
appointment a replacement director; provided, however, that, in the case of the
Trusts' Nominee, such nominee shall be reasonably satisfactory to the FPC
Shareholders (it being acknowledged and agreed that any executive officer,
director or partner of The AMC Group, L.P. or American Manufacturing Corporation
or any respective successor entity shall be reasonably acceptable to the FPC
Shareholders and any nominee's lack of applicable experience shall not be
reasonable grounds for the FPC Shareholders to object to such nominee).
Following notice from such party to the Company of its nomination of a
replacement director, the Board shall not conduct any business until such
nominee has been elected or appointed to the Board.
ARTICLE IV
RESTRICTIONS ON TRANSFERS OF SHARES
Section 4.1 General Limitations on Transfers.
4.1.1 Transfers Generally. No Shareholder shall Transfer any Shares
(whether owned as of the date of this Agreement or subsequently acquired),
unless such Transfer is made in accordance with the requirements of this Article
IV, as may be applicable, or as contemplated by Section 5.1.
4.1.2 Recordation on Register of Members. The Shareholders shall ensure
that the Board shall not record on the Company's Register of Members any
attempted Transfer of Shares held or owned by any Shareholder to any other
Person, except for Transfers in accordance with this Agreement for which the
Shareholders shall take all necessary steps to ensure that the Board updates the
Company's Register of Members.
4.1.3 Obligations of Transferees. No Transfer of Shares that would be
otherwise permitted pursuant to this Agreement shall be effective unless (a) the
Transferee shall have executed an appropriate document (a "Joinder Agreement")
in form and substance reasonably satisfactory to the Company confirming that (i)
the Transferee takes such Shares subject to all the terms and conditions of this
Agreement to the same extent as its Transferor was bound by and entitled to the
benefits of such provisions and (ii) the certificates in respect of the Shares
shall bear legends, substantially in the forms required by Section 4.6, and
-8-
(b) such Joinder Agreement shall have been delivered to and approved by the
Company prior to such Transferee's acquisition of Shares, which approval shall
not be unreasonably withheld, conditioned or delayed. Notwithstanding the
foregoing, the provisions of this Section 4.1.3 shall not apply to a Transfer of
Shares validly made pursuant to a Piggyback Registration, pursuant to an
effective registration statement under the Securities Act, or pursuant to
Section 4.7, and, at the sole discretion of the Board, to any Transfer made in
accordance with the provisions of Sections 4.4 or 4.5.
4.1.4 Prohibited Transfers; Transfers to Competitors. Notwithstanding
anything to the contrary in this Agreement, without the consent of the Board, no
Shareholder shall, at any time, directly or indirectly, complete any Transfer of
Shares that (a) would result in the assets of the Company constituting "Plan
Assets" as such term is defined in the Department of Labor regulations
promulgated under the United States Employee Retirement Income Security Act of
1974, as amended, (b) would cause the Company to be controlled by or be under
common control with an "investment company" for purposes of the United States
Investment Company Act of 1940, as amended, (c) would require the Shares to be
registered under the Exchange Act or (d) is made to any Person who is a
Competitor of the Company or any of its subsidiaries or to any Affiliate of such
a Competitor (other than Transfers to the Company and its Affiliates).
Notwithstanding clause (d) of this Section 4.1.4, a Transfer to a Competitor is
permitted under Section 4.1.4(d) if such Transfer is made in connection with the
exercise of a Tag-Along Right pursuant to Section 4.4 or in connection with the
exercise of a Drag-Along Right pursuant to Section 4.5, in which event such sale
may be effected only in accordance with Section 4.4 or 4.5, as applicable.
Further, this Section 4.1.4 shall not prohibit any Transfer of Shares validly
made pursuant to a registered public offering of Shares or pursuant to Rule 144
of the Securities Act.
Section 4.2 Compliance with Securities Laws. Notwithstanding any other
provision of this Agreement, no Shareholder shall Transfer any Shares unless the
Transfer is made in accordance with the terms of this Agreement and (a) the
Transfer is effected pursuant to an effective registration statement under the
Securities Act and in compliance with any other applicable United States federal
and state securities laws and applicable foreign securities laws or (b) the
Transferor shall have furnished the Company with (i) an opinion of counsel, if
reasonably requested by the Company, which opinion of counsel shall be in form
and substance reasonably satisfactory to the Company, to the effect that no such
registration is required because of the availability of an exemption from
registration under the Securities Act and under any applicable securities laws
of any state of the United States and applicable foreign securities laws and
that the Transfer otherwise complies with any other applicable United States
federal and state securities laws and applicable foreign securities laws and
(ii) such representations and covenants of the Transferor as are reasonably
requested by the Company to ensure compliance with any applicable United States
federal and state securities laws and applicable foreign securities laws.
-9-
Section 4.3 Permitted Transfers.
4.3.1 FPC Shareholders Transfers.
(a) Subject to Sections 4.1.3, 4.1.4 and 4.2, the FPC Shareholders may
Transfer any Shares to any Affiliate of FPC (other than the Company) or any
Person that is an investment fund managed or controlled by FPC or any Affiliate
of FPC (each, an "FPC Affiliate Transferee").
(b) Subject to Sections 4.1.3, 4.1.4 and 4.2, as may be applicable, the
FPC Shareholders and any FPC Affiliated Transferee shall be free to Transfer
Shares to any Person, in whole at any time or in part from time to time;
provided, however, that, if such Person is not a FPC Affiliate Transferee, the
FPC Shareholders shall be required to make such Transfer pursuant to the terms
of Sections 4.4, 4.5 or 5.1, as may be applicable. Notwithstanding the
foregoing, any Transfer of Shares by the FPC Shareholders or any FPC Affiliated
Transferee to all of its respective limited partners or other investors on a pro
rata basis for consideration other than cash, shall not be subject to Section
4.4.
4.3.2 Trust Transfers.
(a) Subject to Sections 4.1.3, 4.1.4 and 4.2, the Trusts may Transfer
any Shares to another Trust, any Affiliate of the Trusts or to the principal
(i.e. corpus) beneficiaries of any Trust (each, a "Trust Affiliate Transferee").
(b) Except as provided in this Article IV, the Trusts and any Trust
Affiliate Transferee shall not Transfer any Shares to any other Person without
the prior written approval of the Company, which approval may be granted or
withheld by the Board in its sole and absolute discretion.
Section 4.4 Tag-Along Rights.
4.4.1 Sale Notice. If at any time the FPC Shareholders or any one or
more FPC Affiliate Transferees (collectively, the "FPC Seller") proposes to
Transfer any of the Shares owned by the FPC Seller, other than (a) to any FPC
Affiliate Transferee, (b) in a Transfer subject to a Drag-Along Right pursuant
to Section 4.5 if the FPC Seller has executed its Drag-Along Right in full, or
(c) pursuant to a Piggyback Registration, then the FPC Seller shall first give
written notice (the "Sale Notice") to the Company and to each Trust, stating
that the FPC Seller desires to make such Transfer, referring to this Section
4.4, specifying the number of each class or series of Shares proposed to be
transferred by the FPC Seller (the "Offer Shares"), and specifying the price,
the form of consideration, name and description of the proposed purchaser
(including controlling Persons) (the "Proposed Transferee"), the other material
terms pursuant to which such Transfer is proposed to be made, and, if the form
of consideration is not solely cash payable in immediately available funds, cash
equivalents or marketable securities, sufficient financial information regarding
the Proposed Transferee in order for the Trusts to reasonably evaluate the
consideration proposed to be delivered.
-10-
4.4.2 Tag-Along Election. Within ten business days of the date of
receipt of the Sale Notice, each Trust shall deliver to the FPC Seller and to
the Company a written notice stating whether such Trust elects to sell a pro
rata portion of its Shares (any Trust that chooses to exercise such right, an
"Offeree Shareholder") (equal to (a) the total number of Shares owned by such
Trust, multiplied by (b) a fraction, (i) the numerator of which is the number of
Offer Shares and (ii) the denominator of which is the total number of Shares
held by the FPC Shareholders and any FPC Affiliate Transferees) to such Proposed
Transferee on the same terms, purchase price and conditions as the FPC Seller
(with respect to each Trust, its "Tag-Along Shares"). An election pursuant to
the first sentence of this Section 4.4.2 shall constitute an irrevocable
commitment by the Offeree Shareholder making such election to sell such
Tag-Along Shares to the Proposed Transferee if the sale of Offer Shares to the
Proposed Transferee occurs on the terms set forth in the Sale Notice. Such terms
may include a maximum number of Shares such Proposed Transferee is willing to
purchase, and, in such case, the FPC Seller and the Offeree Shareholders shall
be cut back pro rata based on the number of Shares the FPC Seller and the
Offeree Shareholders are seeking to sell.
4.4.3 Rights to Transfer. (a) Third-Party Sale; Tag-Along Buyer. The
FPC Seller may not consummate any Transfer that is subject to the provisions of
this Section 4.4 unless the Proposed Transferee purchases, within 180 days of
the date of the Sale Notice concurrently with and on substantially the same
terms and conditions and at the same price as the Offer Shares, all of each
Offeree Shareholder's Tag-Along Shares with respect to such Transfer, in
accordance with their elections pursuant to Section 4.4.2, and subject to the
last sentence thereof (the "Tag-Along Right"). For purposes of the preceding
sentence, the price received by the FPC Seller shall be deemed to include all
compensation of any nature and type as is received by the FPC Seller and its
Affiliates in respect of the Offer Shares and any non-competition covenants and
similar matters, but shall not include any commercially reasonable consideration
for bona fide consulting, financial, investment banking or similar services.
(b) Sale Agreement. Each Offeree Shareholder electing to sell Tag-Along
Shares (a "Tag-Along Seller") agrees to cooperate in consummating such a
Transfer, including by becoming a party to the sale agreement and all other
appropriate related agreements, delivering, at the consummation of such
Transfer, the share certificates (if any) and other instruments of transfer for
such Shares duly endorsed for transfer, free and clear of all liens and
encumbrances, and voting or consenting in favor of such transaction (to the
extent a vote or consent is required) and taking any other necessary or
appropriate action in furtherance thereof, including the execution and delivery
of any other appropriate agreements, certificates, instruments and other
documents. Each Tag-Along Seller shall be severally responsible for its
proportionate share of the third-party expenses of the Transfer incurred by the
FPC Seller in connection with such Transfer and the monetary obligations and
liabilities incurred by the FPC Seller in connection with such sale. Such
monetary obligations and liabilities shall include (to the extent such
obligations are incurred by the FPC Seller) obligations and liabilities for
indemnification with respect to breaches of representations and warranties made
in connection with such Transfer by the Company or by the FPC Seller and any
Tag-Along Sellers with respect to the Company or the Company's business, and
shall also
-11-
include amounts paid into escrow or subject to holdbacks, and amounts subject to
post-closing purchase price adjustments; provided, however, that all such
obligations are equally applicable on a several and not joint basis to the FPC
Seller and each Tag-Along Seller based on the consideration received by the FPC
Seller and such Tag-Along Seller. The foregoing notwithstanding, (i) without the
written consent of a Tag-Along Seller, the amount of such obligations and
liabilities for which such Tag-Along Seller shall be responsible shall not
exceed the gross proceeds received by such Tag-Along Seller in such Transfer,
and (ii) a Tag-Along Seller shall not be responsible for the fraud of the FPC
Seller or any other Tag-Along Seller or for any indemnification obligations and
liabilities for breaches of representations and warranties made by the FPC
Seller or any other Tag-Along Seller with respect to such other seller's (A)
ownership of and title to Shares, (B) organization, (C) authority or (D)
conflicts and consents and any other matter concerning such other seller, or for
breaches of any covenants made by the FPC Seller or any other Tag-Along Seller.
(c) No Liability. Notwithstanding any other provision contained in this
Section 4.4.3, there shall be no liability on the part of the Company or the FPC
Seller in the event that any Transfer of Offer Shares pursuant to this Section
4.4.3 is not consummated for any reason whatsoever. The decision whether to
effect a Transfer subject to this Section 4.4.3 shall be in the sole and
absolute discretion of the FPC Seller.
4.4.4 Intention of the Parties. The parties acknowledge that the
intention of this Section 4.4 (together with Section 5.1) is to assure that the
Trusts have the ability to liquidate their Shares in amounts and at times that
are related to the amounts and times at which the FPC Shareholders and any FPC
Affiliate Transferee achieves, directly or indirectly, liquidity with respect to
any or all of their investment in the Company. The parties accordingly agree
that upon any direct or indirect Transfer of equity interests of the FPC
Shareholders or any FPC Affiliate Transferee (other than to an FPC Affiliate
Transferee), the Trusts shall have rights in connection with such Transfer that
are comparable to those rights that it would have been afforded had the FPC
Shareholders or the FPC Affiliate Transferee directly Transferred a
proportionate amount of its interest in the Company.
Section 4.5 Drag-Along Right.
4.5.1 Exercise. If at any time an FPC Seller proposes to make a
Transfer, in a bona fide arm's-length sale transaction or series of related sale
transactions to a Person that is not an FPC Affiliate Transferee, of Shares
representing (together with any Shares to be sold by a Drag-Along Seller under
this Section 4.5) at least 50% of the outstanding Shares to a Proposed
Transferee (the "Drag-Along Sale"), including pursuant to a share sale, merger,
business combination, recapitalization, consolidation, reorganization,
restructuring or similar transaction, the FPC Seller shall have the right (a
"Drag-Along Right"), exercisable upon 15 days' prior written notice to the
Trusts, to require the Trusts to sell a number of Shares equal to (a) the total
number of Shares owned by such Trust, multiplied by (b) a fraction (i) the
numerator of which is the number of Shares the FPC Seller proposes to sell to
the Proposed Transferee and (ii) the denominator of which is the total number of
Shares held by the FPC Shareholders and any FPC Affiliate Transferees, to the
Proposed Transferee on the
-12-
same terms and conditions (including the same proportions of each class or
series of Shares) and at the same price as the FPC Seller would receive in
connection with such transaction. For purposes of the preceding sentence, the
price received by the FPC Seller shall be deemed to include all compensation of
any nature and type as is received by the FPC Seller and its Affiliates in
respect of the Shares to be sold by the FPC Seller and any non-competition
covenants and similar matters, but shall not include any commercially reasonable
consideration for bona fide consulting, financial, investment banking or similar
services.
4.5.2 Sale Agreement. Each Trust selling Shares pursuant to a
transaction contemplated by this Section 4.5 (each such Trust, a "Drag-Along
Seller") agrees to cooperate in consummating such a Transfer, including, without
limitation, by becoming a party to the sale agreement and all other appropriate
related agreements, delivering, at the consummation of such Transfer, the share
certificates (if any) and other instruments of transfer for such Shares duly
endorsed for transfer, free and clear of all liens and encumbrances, and voting
or consenting in favor of such transaction (to the extent a vote or consent is
required) and taking any other necessary or appropriate action in furtherance
thereof, including the execution and delivery of any other appropriate
agreements, certificates, instruments and other documents. Each Drag-Along
Seller shall be severally responsible for its proportionate share of the
third-party expenses of the Transfer incurred by the FPC Seller in connection
with such Transfer and the monetary obligations and liabilities incurred by the
FPC Seller in connection with such Transfer. Such monetary obligations and
liabilities shall include (to the extent such obligations are incurred by the
FPC Seller) obligations and liabilities for indemnification with respect to
breaches of representations and warranties made in connection with such Transfer
by the Company or by the FPC Seller and any Drag-Along Sellers with respect to
the Company or the Company's business, and shall also include amounts paid into
escrow or subject to holdbacks, and amounts subject to post-closing purchase
price adjustments; provided, however, that all such obligations are equally
applicable on a several and not joint basis to the FPC Seller and each
Drag-Along Seller based on the consideration received by the FPC Seller and such
Drag-Along Seller. The foregoing notwithstanding, (i) without the written
consent of a Drag-Along Seller, the amount of such obligations and liabilities
for which such Drag-Along Seller shall be responsible shall not exceed the gross
proceeds received by such Drag-Along Seller in such Transfer, and (ii) a
Drag-Along Seller shall not be responsible for the fraud of the FPC Seller or
any other Drag-Along Seller or for any indemnification obligations and
liabilities for breaches of representations and warranties made by the FPC
Seller or any other Drag-Along Seller with respect to such other seller's (A)
ownership of and title to Shares, (B) organization, (C) authority or (D)
conflicts and consents and any other matter concerning such other seller, or for
breaches of any covenants made by the FPC Seller or any other Drag-Along Seller.
4.5.3 No Liability. Notwithstanding any other provision contained in
this Section 4.5, there shall be no liability on the part of the Company or the
FPC Seller in the event that the Transfer pursuant to this Section 4.5 is not
consummated for any reason whatsoever. The decision whether to effect a Transfer
pursuant to this Section 4.5 shall be in the sole and absolute discretion of the
FPC Seller.
-13-
Section 4.6 Additional Provisions Relating to Restrictions on
Transfers.
4.6.1 Legends. Each outstanding certificate representing Shares, shall
bear legends reading substantially as follows:
(a) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE
ISSUED IN A TRANSACTION THAT WAS NOT REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED, UNDER THE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR UNDER ANY FOREIGN SECURITIES LAWS AND MAY
NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER SAID ACT AND APPLICABLE STATE AND FOREIGN SECURITIES
LAWS."
(b) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN A SHAREHOLDERS
AGREEMENT, DATED AS OF SEPTEMBER 5, 2003, AS AMENDED FROM TIME TO TIME,
COPIES OF WHICH MAY BE OBTAINED FROM THE ISSUER OR FROM THE HOLDER OF
THIS CERTIFICATE. NO TRANSFER OF SUCH SECURITIES WILL BE MADE ON THE
BOOKS OF THE ISSUER UNLESS ACCOMPANIED BY EVIDENCE OF COMPLIANCE WITH
THE TERMS OF SUCH AGREEMENT."
4.6.2 Copy of Agreement. A copy of this Agreement shall be filed with
the secretary of the Company, and kept with the records of the Company, and
shall be made available for inspection by any holder of Shares at the principal
executive offices of the Company.
4.6.3 Termination of Restrictions. The restriction referred to in the
legend required pursuant to Section 4.6.1(a) shall cease and terminate as to any
particular Shares when, in the reasonable opinion of counsel for the Company,
such restriction is no longer required in order to assure compliance with the
Securities Act, the securities laws of any state of the United States or
applicable foreign securities laws. The Company or the Company's counsel, at
their election, may request from any holder of Shares a certificate or an
opinion of such holder's counsel with respect to any relevant matters in
connection with the removal of the legend set forth in Section 4.6.1(a) from
such holder's share certificates, any such certificate or opinion of counsel to
be reasonably satisfactory to the Company and its counsel. The restrictions
referred to in the legend required by Section 4.6.1(b) shall cease and terminate
as to any particular Shares when, in the reasonable opinion of counsel for the
Company, the provisions of this Agreement are no longer applicable to such
Shares or this Agreement shall have terminated in accordance with its terms.
Whenever such restrictions shall cease and terminate as to any Shares, the
holder thereof shall be entitled to receive from the Company, without expense
(other than applicable transfer taxes, if any, if such unlegended Shares are
being delivered and transferred to any Person other than the registered
-14-
holder thereof), new certificates for a like number of Shares not bearing the
relevant legend(s) set forth in Section 4.6.1.
Section 4.7 Transfers Pursuant to Rule 144. Notwithstanding Section
4.1.1, following the IPO, the Trusts may effect any Transfer of Shares pursuant
to sales under Rule 144, to the extent available; provided, however, that the
Trusts shall not effect any Transfers under this Section 4.7 if (a) in the good
faith judgment of the Board based on advice from its outside financial advisors,
such sales would interfere with a pending registration or a registration that
the Company plans to file within the next 60 days and (b) each other Shareholder
of the Company is similarly restricted from effecting any such Transfers.
ARTICLE V
REGISTRATION RIGHTS
Section 5.1 Piggyback Registrations.
5.1.1 Piggyback Registrations. If at any time (a) either (i) the
Company proposes to register for sale by the Company under the Securities Act
any Common Shares (other than a registration on Form S-4 or Form S-8, or any
successor or similar forms) in a manner that would permit registration of
Registrable Securities for sale to the public under the Securities Act, and (ii)
the FPC Shareholders or any FPC Affiliate Transferee or any other shareholder
proposes to sell Registrable Securities in such registered sale, or (b) the
Company proposes to register for sale by any FPC Shareholder or any FPC
Affiliate Transferee to the public under the Securities Act any Registrable
Securities, the Company shall each such time promptly give written notice to any
Trust that beneficially owns any Registrable Securities of its intention to do
so, of the registration form of the SEC that has been selected by the Company
and of such holders' rights under this Section 5.1 (the "Piggyback Notice").
Subject to Section 5.1.4, the Company shall use its reasonable best efforts to
include, and to cause the underwriter or underwriters, if applicable, to
include, in the proposed offering, on the same terms and conditions as the
Common Shares proposed to be sold by the Company, the FPC Shareholders or FPC
Affiliate Transferees and any other shareholder in such offering, all
Registrable Securities that the Company has been requested in writing, within 15
calendar days after the Piggyback Notice is given, to register by the holders
thereof (each such registration pursuant to this Section 5.1.1, a "Piggyback
Registration"); provided, however, that (a) if, at any time after giving a
Piggyback Notice 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 Common Shares, the Company may, at its election,
give written notice of such determination to all Trusts who beneficially own any
Registrable Securities and, thereupon, shall be relieved of its obligation to
register any Registrable Securities in connection with such abandoned
registration, and (b) in case of a determination by the Company to delay
registration of its Common Shares the Company shall be permitted to delay the
registration of such Registrable Securities for the same period as the delay in
registering such other Common Shares. In the case of any registration of
Registrable Securities in an underwritten offering pursuant to this Section
5.1.1, all Shareholders
-15-
proposing to distribute their securities pursuant to this Section 5.1.1 shall,
at the request of the Company, enter into an agreement in customary form with
the underwriter or underwriters selected by the Company.
5.1.2 Expenses. The Company shall pay all Registration Expenses in
connection with each registration of Registrable Securities requested pursuant
to this Section 5.1; provided, however, that each Trust shall pay all
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of such Trust's Registrable Securities pursuant to a
registration statement effected pursuant to this Section 5.1.
5.1.3 Priority in Piggyback Registrations. If the managing underwriter
for a registration pursuant to this Section 5.1 shall advise the Company in
writing that, in its opinion, the number of Registrable Securities requested to
be included in such registration exceeds the number (the "Maximum Sale Number")
that can be sold in an orderly manner in such offering within a price range
acceptable to the Company or the shareholder for which such registration was
initially proposed to be effected, the Company shall include in such offering
the following Common Shares: (a) first, all the Common Shares, if any, the
Company proposes to register for its own sale, and (b) second, all Registrable
Securities requested to be included by all Shareholders (or if the number of
such Registrable Securities exceeds the Maximum Sale Number less the number of
Common Shares included pursuant to clause (a) above, then the number of such
Registrable Securities included in such registration pursuant to this clause (b)
shall be equal to the excess of the Maximum Sale Number over the number of
Common Shares included pursuant to clause (a) above and shall be allocated pro
rata among all requesting Shareholders, on the basis of the relative number of
Registrable Securities each such Shareholder had requested to have included in
such registration). Notwithstanding the foregoing, if, at the time such proposed
registration is be effective, the Registrable Securities proposed to be included
by the Trusts in such registration are eligible for sale to the public under
Rule 144(k) under the Securities Act, the Company shall include in such offering
the following Common Shares: (i) first, all the Common Shares, if any, the
Company proposes to register for its own sale, (ii) second, all Registrable
Securities requested to be included by the FPC Shareholders (or if the number of
such Registrable Securities exceeds the Maximum Sale Number less the number of
Common Shares included pursuant to clause (i) above, then the number of such
Registrable Securities included in such registration pursuant to this clause
(ii) shall be equal to the excess of the Maximum Sale Number over the number of
Common Shares included pursuant to clause (i) above); and (iii) third , all
Registrable Securities requested to be included by the Trusts (or if the number
of such Registrable Securities exceeds the Maximum Sale Number less the number
of Common Shares included pursuant to clauses (i) and (ii) above, then the
number of such Registrable Securities included in such registration pursuant to
this clause (iii) shall be equal to the excess of the Maximum Sale Number over
the number of Common Shares included pursuant to clauses (i) and (ii) above).
5.1.4 Underwriting Requirements. In connection with any offering
involving any underwriting of securities in a Piggyback Registration, the
Company shall not be required
-16-
to include any Shareholder's Registrable Securities in such underwriting unless
such Shareholder accepts the terms of the underwriting as agreed upon between
the Company and the underwriters in such quantities and on such terms as set
forth in Section 5.1.1, and such Shareholder agrees to sell such Shareholder's
Registrable Securities on the basis provided therein and completes and/or
executes all questionnaires, indemnities, lock-ups, underwriting agreements and
other documents (including powers of attorney and custody arrangements) required
generally of all selling Shareholders, in each case, in customary form and
substance, which are requested to be executed in connection therewith.
Section 5.2 Registration Procedures. If and whenever the Company is
required to use its reasonable best efforts to effect or cause the registration
of any Registrable Securities under the Securities Act as provided in this
Article V, the Company will, as soon as practicable:
(a) prepare and file with the SEC the requisite registration
statement with respect to such Registrable Securities and use its
reasonable best efforts to cause such registration statement to become
and remain effective in order to permit the sale of the Registrable
Securities by the Shareholders in accordance with the intended method
or methods of distribution thereof described in such registration
statement;
(b) prepare and file with the SEC 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 during such period;
(c) comply with the provisions of the Securities Act with
respect to the sale or other disposition of all securities covered by
such registration statement during such period;
(d) furnish to each Shareholder of such Registrable Securities
and each underwriter such number of copies of such registration
statement and of each amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus
included in such registration statement (including each preliminary
prospectus and summary prospectus), in conformity with the requirements
of the Securities Act, and such other documents as such Shareholder may
reasonably request;
(e) (i) promptly notify in writing each Shareholder that holds
Registrable Securities covered by such registration statement, (A) when
such registration statement or any post-effective amendment or
supplement thereto becomes effective, (B) of the issuance by the SEC or
any state securities authority of any stop order, injunction or other
order or requirement suspending the effectiveness of such registration
statement (and take all reasonable action to prevent the entry of such
stop order or to remove it if entered, or the initiation of any
proceedings for that purpose), or (C) of the happening of any event as
a result of which the registration statement, as then in effect, the
prospectus related thereto or any document included therein by
-17-
reference includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the
circumstances under which they were made and (ii) in the case of an
event under clause (e)(i)(B) or (C), promptly file such amendments and
supplements which may be required on account of such event and use its
reasonable best efforts to cause each such amendment and supplement to
become effective;
(f) promptly furnish counsel for each underwriter, if any, and
for the selling Shareholders of Registrable Securities copies of any
written request by the SEC or any state securities authority for
amendments or supplements to a registration statement and prospectus or
for additional information;
(g) use reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of a registration statement at
the earliest possible time;
(h) use its best efforts to cause all such Registrable
Securities covered by such registration statement to be listed on the
principal securities exchange or authorized for quotation on Nasdaq, if
any, on which similar equity securities issued by the Company are then
listed or authorized for quotation, or eligible for listing or
quotation, if the listing or authorization for quotation of such
securities is then permitted under the rules of such exchange or the
NASD;
(i) enter into an underwriting agreement with the underwriter
of such offering in the form customary for such underwriter for similar
offerings, including such representations and warranties by the
Company, provisions regarding the delivery of opinions of counsel for
the Company and accountants' letters, provisions regarding
indemnification and contribution, and such other terms and conditions
as are at the time customarily contained in such underwriter's
underwriting agreements for similar offerings (the sellers of
Registrable Securities that are to be distributed by such
underwriter(s) may, at their 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 underwriter(s) shall
also be made to and for the benefit of such sellers of Registrable
Securities);
(j) make available for inspection by representatives of the
selling Shareholders who hold Registrable Securities and any
underwriters participating in any disposition pursuant hereto and any
counsel or accountant retained by such Shareholders or underwriters,
all relevant financial and other records, pertinent documents and
properties of the Company and cause the respective officers, directors
and employees of the Company to supply all information reasonably
requested by any such representative, underwriter, counsel or
accountant in connection with a registration pursuant hereto; provided,
however, that, with respect to records, documents or information which
the Company determines, in good faith, to be confidential and as to
which the Company notifies such representatives,
-18-
underwriters, counsel or accountants in writing of such
confidentiality, such representatives, underwriters, counsel or
accountants shall not disclose such records, documents or information
unless (i) the release of such records, documents or information is
ordered pursuant to a subpoena or other order from a court of competent
jurisdiction, or (ii) such records, documents or information have
previously been generally made available to the public. Each selling
Shareholder of such Registrable Securities agrees that information
obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company or its Affiliates (or for
such Shareholder's business purposes or for any reason other than in
connection with a registration hereunder) unless and until such
information is made generally available (other than by such Shareholder
or where such Shareholder knows that such information became publicly
available as a result of a breach of any confidentiality arrangement)
to the public. Each selling Shareholder of such Registrable Securities
further agrees that it will, upon learning that disclosure of such
records is sought, give notice to the Company and allow the Company, at
its expense, to undertake appropriate action to prevent disclosure of
the records deemed confidential;
(k) permit any beneficial owner of Registrable Securities
that, in the sole judgment, exercised in good faith, of such holder,
might be deemed to be a controlling Person of the Company, to
participate in the preparation of such registration or comparable
statement and to require the insertion therein of material, furnished
to the Company in writing, that in the judgment of such holder, as
aforesaid, should be included; and
(l) 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 the Registrable
Securities in any underwritten offering.
The Company may require each Shareholder who is selling Registrable
Securities pursuant to which any registration is being effected to furnish the
Company such information regarding such Shareholder and the distribution of such
Registrable Securities as the Company may from time to time reasonably request
in writing. The Company shall not be required to register or qualify any
Registrable Securities covered by such registration statement under any state
securities or "blue sky" laws of such jurisdictions other than as it deems
necessary in connection with the chosen method of distribution or to take any
other actions or do any other things other than those it reasonably deems
necessary or advisable to consummate such distribution, and the Company shall
not for any such purpose be required to qualify generally to do business as a
foreign entity in any jurisdiction wherein it would not otherwise be obligated
to be so qualified, to subject itself to taxation in any such jurisdiction or to
consent to general service of process in any such jurisdiction.
Each beneficial owner of Registrable Securities agrees that upon
receipt of any notice from the Company of the happening of any event of the kind
described in clauses (e)(i)(B) and (e)(i)(C) above, such beneficial owner will
forthwith discontinue
-19-
disposition of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until such beneficial owner's receipt of
the copies of the supplemented or amended prospectus contemplated by clause
(e)(ii) above, and, if so directed by the Company, such beneficial owner will
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such beneficial owner's possession, of the
prospectus covering such Registrable Securities that was in effect prior to such
amendment or supplement.
Section 5.3 Indemnification. (a) In the event of any registration of
any Registrable Securities pursuant to this Article V, the Company shall
indemnify and hold harmless, to the fullest extent permitted by law, the seller
of any Registrable Securities covered by such registration statement, its
Affiliates, directors, officers, fiduciaries, employees, agents and stockholders
or members or general and limited partners (and the directors, officers,
fiduciaries, employees, agents and stockholders or members or general and
limited partners thereof), each other Person who participates as an underwriter
or a qualified independent underwriter, if any, in the offering or sale of such
securities, each director, officer, fiduciary, employee, agent and stockholder
or general and limited partner of such underwriter or qualified independent
underwriter, and each other Person (including any such Person's directors,
officers, fiduciaries, employees, agents and stockholders or members or general
and limited partners), if any, who controls such seller or any such underwriter
or qualified independent underwriter, within the meaning of the Securities Act,
against any and all Claims in respect thereof and expenses (including reasonable
fees and expenses of counsel and any amounts paid in any settlement effected
with the Company's consent, which consent shall not be unreasonably withheld,
conditioned or delayed) to which each such indemnified party may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such Claims
or expenses arise out of or are based upon any of the following actual or
alleged statements, omissions or violations (each, a "Violation"): (i) any
untrue statement or alleged untrue statement of a material fact contained in any
registration statement under which such Registrable Securities were registered
pursuant to this Agreement 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, in light of the circumstances under
which they were made, not misleading, (ii) 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 (unless corrected in
the final prospectus), 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 light of the circumstances under which they were made, not
misleading, or (iii) any violation by the Company of any federal, state, common
law or applicable foreign 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; provided, however, that the Company shall not be liable to any such
indemnified party in any such case to the extent such Claim or expense arises
out of or is based upon any Violation that occurs in reliance upon and in
conformity with written information furnished to the Company
-20-
or its representatives by or on behalf of such indemnified party expressly
stating that such information is for use therein.
(b) Each holder of Registrable Securities that are included in the
securities as to which any Piggyback Registration is being effected (and, if the
Company requires as a condition to including any Registrable Securities in any
registration statement filed in connection with any Piggyback Registration, 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 Section 5.3(a)), to the fullest extent permitted by law,
the Company, its directors, officers, fiduciaries, employees, agents and
shareholders (and the directors, officers, fiduciaries, employees, agents and
shareholders or members or general and limited partners thereof) and each Person
(including any such Person's directors, officers, fiduciaries, employees, agents
and stockholders or members or general and limited partners), if any,
controlling the Company within the meaning of the Securities Act and all other
prospective sellers and their directors, officers, fiduciaries, employees,
agents and shareholders or general and limited partners and respective
controlling Persons (including any such Person's directors, officers,
fiduciaries, employees, agents and shareholders or members or general and
limited partners) against any and all Claims and expenses (including reasonable
fees and expenses of counsel and any amounts paid in any settlement effected
with the consent of the indemnifying party, which consent shall not be
unreasonably withheld, conditioned or delayed) to which each such indemnified
party may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such Claims or expenses arise out of or are based upon any
Violation that occurs in reliance upon and in conformity with written
information furnished to the Company or its representatives by or on behalf of
such holder of Registrable Securities, expressly stating that such information
is for use in connection with any registration statement, preliminary, final or
summary prospectus or amendment or supplement or document incorporated by
reference into any of the foregoing. Notwithstanding anything in this Section
5.3(b) to the contrary, no indemnifying party shall be required pursuant to this
Section 5.3(b) to contribute any amount in excess of the gross proceeds received
by such indemnifying party from the sale of Registrable Securities in the
offering to which the Claims of the indemnified parties relate.
(c) Indemnification similar to that specified in Sections 5.3(a) and
5.3(b) (with appropriate modifications) shall be given by the Company and each
seller of Registrable Securities (and, if the Company requires as a condition to
including any Registrable Securities in any registration statement filed in
connection with any Piggyback Registration, any underwriter and qualified
independent underwriter, if any) with respect to any required registration or
other qualification of securities under any securities or "blue sky" laws of any
state of the United States or applicable foreign laws.
(d) 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 pursuant to this Section 5.3, but the failure of any indemnified party to
provide such notice shall not relieve the indemnifying party of its obligations
under the preceding paragraphs of this Section 5.3,
-21-
except to the extent the indemnifying party is prejudiced thereby and shall not
relieve the indemnifying party from any liability that it may have to any
indemnified party otherwise than under this Section 5.3. In case any action or
proceeding is brought against an indemnified party and it shall notify the
indemnifying party of the commencement thereof, 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
defense thereof jointly with any other indemnifying party similarly notified, to
the extent that it chooses, with counsel reasonably satisfactory to such
indemnified 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 defense thereof other than
reasonable costs of investigation; provided, however, that (i) if the
indemnifying party fails to take reasonable steps necessary to defend diligently
the action or proceeding within 20 calendar days after receiving notice from
such indemnified party that the indemnified party believes it has failed to do
so; or (ii) if such indemnified party who is a defendant in any action or
proceeding that is also brought against the indemnifying party reasonably shall
have concluded that there may be one or more legal defenses available to such
indemnified party which are not available to the indemnifying party; or (iii) 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 defense 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 defenses
available to such party or parties that 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, which consent shall not be unreasonably withheld,
conditioned or delayed, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any Claim in respect of which
indemnification or contribution may be sought hereunder (whether or nor the
indemnified party is an actual or potential party to such Claim) unless such
settlement, compromise or judgment (A) includes an unconditional release of the
indemnified party from all liability arising out of such 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.
(e) If for any reason the foregoing indemnity is unavailable or is
insufficient to hold harmless an indemnified party under Sections 5.3(a), 5.3(b)
or 5.3(c), then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of any Claim in such proportion as
is appropriate to reflect the relative fault of the indemnifying party on the
one hand and the indemnified party and any other indemnifying party on the other
hand from the relevant offering of securities. If, however, the allocation
provided in the immediately preceding sentence is not permitted by applicable
law, or if the indemnified party failed to give the notice required by Section
5.3(d) above and the indemnifying party is prejudiced thereby, then each
indemnifying party shall contribute to the
-22-
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative fault of but also the relative
benefits received by the indemnifying party, on the one hand, and the
indemnified party, on the other hand, as well as any other relevant equitable
considerations, including the extent of such prejudice. The relative fault shall
be determined by a court of law by reference to, among other things, whether the
Violation 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 Violation. The parties
hereto agree that it would not be just and equitable if contributions pursuant
to this Section 5.3(e) were to be determined by pro rata allocation or by any
other method of allocation does not take account of the equitable considerations
referred to in the preceding sentences of this Section 5.3(e). 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 Section 5.3(e) to
the contrary, no indemnifying party (other than the Company) shall be required
pursuant to this Section 5.3(e) to contribute any amount in excess of the gross
proceeds received by such indemnifying party from the sale of Registrable
Securities in the offering to which the Claims of the indemnified parties
relate.
(f) The indemnity agreements contained in this Agreement shall be in
addition to any other rights to indemnification or contribution that 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 and the termination of this
Agreement.
(g) The indemnification and contribution required by this Section 5.3
shall be made by periodic payments of the amount thereof during the course of
the investigation or defense, as and when bills are received or expense, loss,
damage or liability is incurred.
(h) In connection with underwritten offerings, the Company will use
reasonable best efforts to negotiate terms of indemnification that are
reasonably favorable to the various sellers pursuant thereto, as appropriate
under the circumstances.
Section 5.4 Rule 144 Reporting. With a view to making available to the
Shareholders the benefits of certain rules and regulations of the SEC, which may
permit the sale of the Registrable Securities to the public without
registration, at all times after 90 days after any registration statement
covering a public offering of Common Shares under the Securities Act shall have
become effective, or at all times after the Common Shares shall initially be
registered pursuant to the requirements of Section 12 of the Exchange Act, the
Company shall at its cost and expense use its reasonable best efforts to comply
with the filing requirements described in Rule 144(c)(1).
-23-
Section 5.5 Lock-Up Agreement. If requested in writing by the
Company or the underwriter of any underwritten offering including the IPO, each
Shareholder agrees not to effect any public sale or distribution, including any
sale pursuant to Rule 144, of any Registrable Securities or any other Equity
Security (in each case, other than as part of such underwritten public offering)
within 14 calendar days before or 180 calendar days after the effective date of
a registration statement or for such shorter period as the sole or lead managing
underwriter or the Company shall request, in any such case, unless consented to
by such underwriter or the Company, as applicable.
ARTICLE VI
COVENANTS
Section 6.1 No Voting or Conflicting Agreements. No
Shareholder shall enter into or agree to be bound by any voting trust with
respect to any Shares, nor shall any Shareholder enter into any shareholder
arrangements of any kind with any Person with respect to any Shares inconsistent
with the provisions of this Agreement. The foregoing prohibition includes, but
is not limited to, agreements or arrangements with respect to the acquisition,
disposition or voting of Shares inconsistent with the provisions of this
Agreements. No Shareholder shall act, at any time, for any reason, as a member
of a group or in concert with any other Persons in connection with the
acquisition, disposition or voting of Shares in any manner that is inconsistent
with the provisions of this Agreement.
Section 6.2 Further Assurances. The parties shall from time to
time execute and deliver all such further documents and do all acts and things
as the other parties may reasonably require to effectively carry out or better
evidence or perfect the full intent and meaning of this Agreement, including, to
the extent necessary or appropriate, using all reasonable efforts to cause the
amendment of the memorandum and articles of association of the Company in order
to provide for the enforcement of this Agreement in accordance with its terms.
In furtherance and not in limitation of the foregoing, in the event of any
amendment, modification or termination of this Agreement in accordance with its
terms, the Shareholders shall cause the Board to meet within 30 days following
such amendment, modification or termination or as soon thereafter as is
practicable for the purpose of amending the memorandum and articles of
association of the Company, as may be required as a result of such amendment,
modification or termination, and, to the extent required by law, proposing such
amendments to the shareholders of the Company entitled to vote thereon, and such
action shall be the first action to be taken at such meeting. Immediately
following the Transactions, the Shareholders shall take all necessary steps to
ensure that the Board updates the Company's Register of Members to reflect the
Shares issued in the Transactions if not previously done.
Section 6.3 Certain Transactions. FPC shall have the right to
perform all consulting, financing, investment banking and similar services for
the Company and its subsidiaries, for customary compensation (as determined by
the Board of Directors of the
-24-
Company in its sole discretion) and on other terms that are customary for
similar engagements with unaffiliated third parties.
Section 6.4 Confidentiality. The terms of this Agreement shall
be confidential and neither the Company nor any Shareholder nor any Affiliate
thereof shall disclose to any Person not a party to this Agreement any of the
terms of this Agreement, except as may be required by applicable law, this
Agreement, or to negotiate and effect a Transfer permitted under this Agreement.
ARTICLE VII
EFFECTIVENESS; TERMINATION
Section 7.1 Effectiveness; Term.
7.1.1 This Agreement shall become effective as of the date of
this Agreement. The rights and obligations of, and restrictions on, the
Shareholders under Article IV shall terminate upon the date that the FPC
Shareholders and FPC Affiliated Transferees no longer hold in the aggregate at
least 25% of the fully-diluted Shares then outstanding (subject, however, to all
obligations of the parties that must be fulfilled prior to such event).
Notwithstanding the foregoing, in the event the Company enters into any
agreement to merge or consolidate with or into any other Person or adopts any
other plan of recapitalization, consolidation, reorganization or other
restructuring transaction as a result of which the FPC Shareholders and the
Trusts and their respective Affiliate Transferees shall own, in the aggregate,
less than a majority of the outstanding voting power of the entity surviving
such transaction, this Agreement shall terminate, except with respect to Section
4.4 and as contemplated by Section 7.1.2.
7.1.2 Notwithstanding anything in Section 7.1.1 to the
contrary, the provisions contained in Article V shall continue to remain in full
force and effect until the earlier to occur of the 20th anniversary of the date
of this Agreement and the date on which there are no longer any Registrable
Securities outstanding; provided, however, that the provisions of Section 5.3
shall survive termination pursuant to Section 7.1.1 or this Section 7.1.2
indefinitely.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Notices. All notices, requests and other
communications to any party in connection with this Agreement shall be in
writing and delivered personally, sent by documented overnight delivery service
shall be given,
if to any FPC Shareholder, to:
U.N. Holdings (Cayman), Ltd.
-25-
c/o Fox ▇▇▇▇▇ & Company, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇
with a copy to:
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
if to the Company, to:
United National Group, Ltd.
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
P.O. Box 908GT
▇▇▇▇▇▇ Town, Grand Cayman
Cayman Islands
Attention: Chief Executive Officer
with a copy to:
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
if to any Trust, to:
c/o The AMC Group, L.P.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
with a copy to:
Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
One ▇▇▇▇▇ Square
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-26-
All such notices, requests and other communications shall be deemed received on
the date of receipt by the recipient if received prior to 5 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.
Section 8.2 Amendment; Waivers.
8.2.1 This Agreement may not be amended or supplemented,
except by an instrument in writing signed by the Company, by the FPC
Shareholders and by Trusts holding a majority of the then outstanding Shares
held by all of the Trusts. The foregoing notwithstanding, the Company, without
the consent of any other party, may enter into Joinder Agreements in order to
add any Person that becomes a holder of Shares and to reflect Transfers
permitted under this Agreement.
8.2.2 No failure or delay by any party in exercising any
right, power or privilege under this Agreement shall operate as a waiver thereof
nor shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege under
this Agreement. The rights and remedies provided in this Agreement shall be
cumulative and not exclusive of any rights or remedies provided by law.
Section 8.3 Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and assigns. If any Shareholder or any Transferee of
any Shareholder shall acquire any Shares in any manner, whether by operation of
law or otherwise, such Shares shall be held subject to all of the terms of this
Agreement, and, by taking and holding such Shares, such Transferee shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement.
Section 8.4 Recapitalizations and Exchanges Affecting Shares.
Except as contemplated by Section 7.1.1, the provisions of this Agreement shall
apply, to the full extent set forth herein with respect to Shares, to any and
all other share capital of the Company or any successor or assign of the Company
(whether by merger, consolidation, sale of assets or otherwise) that may be
issued in respect of, in exchange for, or in substitution of, Shares, or that
may be issued by reason of any share dividend, share split, reverse share split,
combination, recapitalization, reclassification, merger, consolidation,
reorganization or otherwise. Upon the occurrence of any of such events, numbers
of Shares and amounts under this Agreement and any other appropriate terms shall
be appropriately adjusted, as determined in good faith by the Board.
Section 8.5 Governing Law. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of Delaware
applicable to contracts made and wholly-performed within such state, without
regard to the conflicts of law principles of such state.
-27-
Section 8.6 Jurisdiction. Except as otherwise set forth in
this Agreement, any suit, action or other proceeding ("Action") seeking to
enforce any provision of, or based on any matter arising out of or in connection
with, this Agreement shall be brought in the United States District Court for
the District of Delaware or any Delaware State court, so long as one of such
courts shall have subject matter jurisdiction over such Action, and each of the
parties irrevocably consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such Action 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 Action in any such court
or that any such Action that is brought in any such court has been brought in an
inconvenient forum. Process in any such Action 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 8.1 shall be deemed effective service of
process on such party.
Section 8.7 WAIVER OF JURY TRIAL. EACH PARTY IRREVOCABLY
WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATED TO
THIS AGREEMENT.
Section 8.8 Counterparts; Third Party Beneficiaries. This
Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if such signatures were upon the same
instrument. A facsimile or photocopied signature (which may be delivered by
facsimile) shall be deemed to be the functional equivalent of an original for
all purposes. This Agreement shall become effective when each party shall have
received a counterpart of this Agreement signed by the other party. No provision
of this Agreement is intended to confer and shall not confer upon any Person
other than the parties any rights or remedies.
Section 8.9 Entire Agreement. This Agreement constitutes the
entire agreement among the parties with respect to the subject matter of this
Agreement and supersedes all prior agreements and understandings, both oral and
written, among the parties with respect to the subject matter of this Agreement,
including the letter of intent dated as of March 8, 2003 by and between Fox
▇▇▇▇▇ and the Company.
Section 8.10 Captions. The captions are included in this
Agreement for convenience of reference only and shall be ignored in the
construction or interpretation of this Agreement. All references to Sections or
Articles contained in this Agreement shall be to Sections or Articles of this
Agreement unless otherwise stated.
Section 8.11 Specific Performance. The parties acknowledge and
agree that irreparable damage would occur if any party fails to perform in
accordance with the terms of this Agreement and that the parties shall be
entitled to specific performance in such event, in addition to any other remedy
at law or in equity.
Section 8.12 Severability. If this Agreement, or any of its
provisions, or the performance of any provision, is found to be illegal or
unenforceable, the parties shall be
-28-
excused from the performance of such portions of this Agreement as shall be
found to be illegal or unenforceable without affecting the validity of the
remaining provisions of this Agreement; provided, however, that the remaining
provisions of this Agreement shall in their totality constitute a commercially
reasonable agreement.
Section 8.13 Trustees. All actions under or pursuant to this
Agreement by the Trustees are in their respective capacities as trustees under
the Trusts and not as individuals.
Section 8.14 Uncertificated Shares. Notwithstanding anything
herein to the contrary, the parties hereby acknowledge that the Shares issued in
the Transactions are intended to be uncertificated (the "Book Entry Shares") and
such issuance will be recorded on the Company's Register of Members. With
respect to the Book Entry Shares, the provisions of the Agreement regarding
share certificates shall be deemed modified as necessary to effect the
intentions of the parties. Following the Transfer of any Book Entry Shares in
accordance with the terms of this Agreement, the Shareholders shall take all
necessary steps to ensure that the directors of the Company update the Company's
Register of Members to reflect such Transfer of Book Entry Shares. Within a
reasonable time after any Transfer of such Book Entry Shares, the Company shall
send to the new registered owner of such Book Entry Shares a written notice
containing the information required pursuant to the terms of this Agreement to
be set forth or stated on share certificates.
[Signature pages follow]
-29-
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed by their respective authorized officers or trustees as of the
day and year first above written.
UNITED NATIONAL GROUP, LTD.
By:
---------------------------------
Name:
Title:
U.N. HOLDINGS (CAYMAN), LTD.
By:
---------------------------------
Name:
Title:
U.N. CO-INVESTMENT FUND I (CAYMAN), L.P.
By: Fox ▇▇▇▇▇ Capital
Co-Investors International
GP, Ltd., its General
Partner
By:
----------------------
Name:
Title:
U.N. CO-INVESTMENT FUND II (CAYMAN),
L.P.
By: Fox ▇▇▇▇▇ Capital
Co-Investors International
GP, Ltd., its General
Partner
By:
----------------------
Name:
Title:
U.N. CO-INVESTMENT FUND III (CAYMAN),
L.P.
By: Fox ▇▇▇▇▇ Capital
Co-Investors International
GP, Ltd., its General
Partner
By:
----------------------
Name:
Title:
[SIGNATURE PAGE TO AMENDED AND RESTATED SHAREHOLDERS AGREEMENT]
U.N. CO-INVESTMENT FUND IV (CAYMAN),
L.P.
By: Fox ▇▇▇▇▇ Capital
Co-Investors International
GP, Ltd., its General
Partner
By:
----------------------------
Name:
Title:
U.N. CO-INVESTMENT FUND V (CAYMAN), L.P.
By: Fox ▇▇▇▇▇ Capital
Co-Investors International
GP, Ltd., its General
Partner
By:
----------------------
Name:
Title:
U.N. CO-INVESTMENT FUND VI (CAYMAN),
L.P.
By: Fox ▇▇▇▇▇ Capital
Co-Investors International
GP, Ltd., its General
Partner
By:
----------------------
Name:
Title:
U.N. CO-INVESTMENT FUND VII (CAYMAN),
L.P.
By: Fox ▇▇▇▇▇ Capital
Co-Investors International
GP, Ltd., its General
Partner
By:
----------------------
Name:
Title:
[SIGNATURE PAGE TO AMENDED AND RESTATED SHAREHOLDERS AGREEMENT]
U.N. CO-INVESTMENT FUND VIII (CAYMAN),
L.P.
By: Fox ▇▇▇▇▇ Capital
Co-Investors International
GP, Ltd, its General Partner
By:
----------------------
Name:
Title:
U.N. CO-INVESTMENT FUND IX (CAYMAN),
L.P.
By: Fox ▇▇▇▇▇ Capital
Co-Investors International
GP, Ltd., its General
Partner
By:
----------------------
Name:
Title:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, III, ▇▇▇▇▇▇ ▇. ▇▇▇▇,
PNC BANK, N.A., TRUSTEES U/W OF ▇▇▇▇▇▇▇
▇. ▇▇▇▇, ▇▇., AS APPOINTED BY ▇▇▇▇▇▇▇ ▇.
▇▇▇▇, ▇▇. F/B/O
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, III
By:
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, III
Title: Trustee
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, III, ▇▇▇▇▇▇ ▇. ▇▇▇▇,
PNC BANK, N.A., TRUSTEES U/W OF ▇▇▇▇▇▇▇
▇. ▇▇▇▇, ▇▇., AS APPOINTED BY ▇▇▇▇▇▇▇ ▇.
▇▇▇▇, ▇▇. F/B/O
▇▇▇▇▇▇ ▇. ▇▇▇▇
By:
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, III
Title: Trustee
[SIGNATURE PAGE TO AMENDED AND RESTATED SHAREHOLDERS AGREEMENT]
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, III, ▇▇▇▇▇▇ ▇. ▇▇▇▇,
PNC BANK, N.A., TRUSTEES U/A/T OF ▇▇▇▇▇
▇. ▇▇▇▇; DATED 2/9/67, AS APPOINTED BY
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
F/B/O ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, III
By:
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, III
Title: Trustee
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, III, ▇▇▇▇▇▇ ▇. ▇▇▇▇,
PNC BANK, N.A., TRUSTEES U/A/T OF ▇▇▇▇▇
▇. ▇▇▇▇; DATED 2/9/67, AS APPOINTED BY
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
F/B/O ▇▇▇▇▇▇ ▇. ▇▇▇▇
By:
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, III
Title: Trustee
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, III, ▇▇▇▇▇▇ ▇. ▇▇▇▇,
PNC BANK, N.A., TRUSTEES U/A/T OF
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.;
DATED 11/9/67
By:
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, III
Title: Trustee
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, III, ▇▇▇▇▇▇ ▇. ▇▇▇▇,
PNC BANK, N.A., TRUSTEES U/A/T OF
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.;
DATED 6/9/69
By:
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, III
Title: Trustee
[SIGNATURE PAGE TO AMENDED AND RESTATED SHAREHOLDERS AGREEMENT]
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, III, ▇▇▇▇▇▇ ▇. ▇▇▇▇,
PNC BANK, N.A., TRUSTEES U/A/T OF
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.;
DATED 1/29/70
By:
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, III
Title: Trustee
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, III, ▇▇▇▇▇▇ ▇. ▇▇▇▇,
PNC BANK, N.A., TRUSTEES U/A/T OF
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.;
DATED 1/24/73
By:
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, III
Title: Trustee
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, III, ▇▇▇▇▇▇ ▇. ▇▇▇▇,
PNC BANK, N.A., TRUSTEES U/A/T OF
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.; DATED 12/22/76
F/B/O ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, III
By:
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, III
Title: Trustee
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, III, ▇▇▇▇▇▇ ▇. ▇▇▇▇,
PNC BANK, N.A., TRUSTEES U/A/T OF
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.; DATED 12/22/76
F/B/O ▇▇▇▇▇▇ ▇. ▇▇▇▇
By:
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, III
Title: Trustee
[SIGNATURE PAGE TO AMENDED AND RESTATED SHAREHOLDERS AGREEMENT]