EXHIBIT 10-2
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REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
BRIT HOLDINGS LIMITED
AND
▇▇▇▇.▇▇▇, INC.
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, 2001
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THIS REGISTRATION RIGHTS AGREEMENT dated as of the day of , 2001
(the "Agreement"), is made and entered into by and between BRiT Insurance
Holdings plc, a company organized under the laws of England and Wales with
registered number 3121594, whose registered office is at ▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("BRiT"), and ▇▇▇▇.▇▇▇, Inc., a company incorporated in
Delaware and having its principal office at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ("ebix"). Capitalized terms not otherwise defined herein
have the meanings ascribed to them in Section 1.1.
WHEREAS, ebix and BRiT have entered into the Share Exchange and Purchase
Agreement dated March 30, 2001 (the "SHARE EXCHANGE AND PURCHASE AGREEMENT")
pursuant to which ebix shall issue and sell to BRiT up to 6,944,000 shares of
the common stock, par value $0.10 per share, of ebix;
WHEREAS, the closing of the transactions contemplated by the Share Exchange
and Purchase Agreement is subject to certain conditions, including, pursuant to
Article 7 thereof, the condition that ebix and BRiT enter into this Agreement;
WHEREAS, the parties hereto wish to enter into this Agreement as set forth
herein with respect to the registration of shares of capital stock of ebix under
the United States Securities Act of 1933, as amended.
NOW THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement, and for other good and valuable consideration, the
receipt of which and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. DEFINITIONS.
1.1 In this Agreement where the context so admits the following words and
expressions shall have the following meanings:
(a) "CUTBACK REGISTRATION" means any registration to be effected as an
underwritten offering in which the underwriter or representative of the
underwriters with respect thereto advises ebix and BRiT in writing that,
in its opinion, the number of securities requested to be included in such
registration (including securities of ebix that are not Registrable
Securities) exceeds the number that can be sold in such offering without
a material reduction in the selling price anticipated to be received for
the securities to be sold in such offering;
(b) "BRiT" has the meaning set forth in the Recitals;
(c) "ebix" has the meaning set forth in the Recitals;
(d) "ebix COMMON STOCK" means ebix's common stock, par value $0.10 per
share;
(e) "EXCHANGE ACT" shall mean the United States Securities Exchange Act of
1934, as amended, and the rules and regulations of the SEC issued under
such Act, as they each may be in effect from time to time;
(f) "EXISTING REGISTRATION RIGHTS HOLDERS" means persons and entities who,
pursuant to the agreements or instruments identified on Exhibit A hereto,
have rights to (i) require ebix to include ebix securities held by them
in registration statements filed with the SEC, (ii) require ebix to
file a registration statement with the SEC that, absent such requirement,
ebix did not contemplate filing or (iii) cause ebix to register or
qualify any ebix securities held by such person or entity under the
Securities Act or any securities or blue sky laws of any jurisdiction.
(g) "FORM S-3" means such form under the Securities Act as in effect on the
date hereof or any registration form under the Securities Act
subsequently adopted by the SEC which permits inclusion or incorporation
of substantial information by reference to other documents filed by ebix
with the SEC;
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(h) "INSPECTORS" has the meaning set forth in Section 4.1;
(i) "LEAD UNDERWRITER" has the meaning set forth in Section 2.2;
(j) "NOTICE OF PIGGYBACK REGISTRATION" has the meaning set forth in
Section 3.1;
(k) "PARTIES" means named parties to this Agreement, and "PARTY" means
either of them;
(l) "PIGGYBACK REGISTRATION" means any registration of securities of ebix of
the same class as the Registrable Securities under the Securities Act in
contemplation of an underwritten offering (other than a registration in
respect of a dividend reinvestment or similar plan for stockholders, in
respect of employee stock options or other employee benefit plans or in
respect of any merger, consolidation, acquisition or like combination,
whether on Form S-1, Form ▇-▇, ▇▇▇▇ ▇-▇, Form S-8 or any equivalent form
of registration then in effect (collectively "NON-FINANCING REGISTRATION
STATEMENTS"), whether for sale for the account of ebix or for the account
of any holder of securities of ebix (other than Registrable Securities);
(l) "RECORDS" has the meaning set forth in Section 4.1;
(m) "REGISTER", "REGISTERED" and "REGISTRATION" refer to a registration
effected by preparing and filing a registration statement or similar
document in compliance with the Securities Act and otherwise in
accordance with Article 2 of this Agreement and the declaration or
ordering of effectiveness of such registration statement or document;
(n) "REGISTRABLE SECURITIES" means any ebix Common Stock issued to BRiT in
accordance with the Share Exchange and Purchase Agreement, and any ebix
Common Stock issued in respect of any of the foregoing (because of share
splits, stock dividends, reclassifications, recapitalizations, or similar
events), PROVIDED, HOWEVER, that ebix Common Stock that constitutes
Registrable Securities shall cease to be Registrable Securities (A) upon
any sale or transfer in any manner to a person or entity that is not an
"affiliate" (as defined under Rule 144) or (B) where the registration
rights with respect to such securities have been terminated pursuant to
Article 10 of this Agreement;
(o) "REGISTRATION EXPENSES" means all expenses incident to ebix's
performance of, or compliance with, its obligations under this Agreement
to effect the registration of Registrable Securities in accordance with
Article 2 or Article 3 of this Agreement, including, without limitation,
all registration, filing, securities exchange listing and NASD fees, all
registration, filing qualification and other fees and expenses of
complying with securities or blue sky laws, all word processing,
duplicating and printing expenses, messenger and delivery expenses, the
fees and disbursements of counsel for ebix and of its independent public
accountants, including the expenses of any special audits or "comfort"
letters required by or incident to such performance and compliance,
customarily paid by issuers or seller of securities, but excluding
underwriting discounts and commissions and transfer taxes, if any, in
respect of Registrable Securities, which shall be payable by each holder
thereof and excluding fees of any counsel or other advisors to such
holders which shall be paid by such holders (all such expenses referred
to as "SELLING EXPENSES"), PROVIDED THAT, in any case where Registration
Expenses are not to be borne by ebix, such expenses shall not include
salaries of ebix personnel or general overhead expenses of ebix, auditing
fees or other expenses for the preparation of financial statements or
other data normally prepared by ebix in the ordinary course of its
business or which ebix would have incurred in any event;
(p) "RULE 144" means Rule 144 promulgated by the SEC under the Securities
Act and any successor provision thereto;
(q) "SEC" means the United States Securities and Exchange Commission;
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(r) "SECURITIES ACT" means the United States Securities Act of 1933, as
amended, and the rules and regulations of the SEC issued under such Act,
as they each may be in effect from time to time;
(s) "SHARE EXCHANGE AND PURCHASE AGREEMENT" has the meaning set forth in the
Recitals;
(t) "SHELF REGISTRATION STATEMENT" has the meaning set forth in
Section 2.1; and
(u) "VIOLATION" has the meaning set forth in Section 7.1.
1.2 Unless the context of this Agreement otherwise requires, (a) words of any
gender include each other gender; (b) words using the singular or plural
number also include the plural or singular number, respectively; (c) the
terms "hereof", "herein", "hereby" and derivative or similar words refer to
this entire Agreement and (d) the terms "Article" or "Section" refer to the
specified Article or Section of this Agreement
2 REGISTRATION
2.1 DUTY TO REGISTER. On or before July 2, 2001, ebix shall file for the benefit
of BRiT, subject to 2.3 below, a registration statement on Form S-3, or such
other registration statement form on which ebix is then eligible to register
its securities with the SEC if it is not eligible to file a registration
statement on Form S-3, with respect to the offer and sale of the Registrable
Securities on a continuous or delayed basis (the "SHELF REGISTRATION
STATEMENT"). Ebix shall use its best efforts to file the Shelf Registration
Statement and effect as soon as practicable the registration under the
Securities Act of all Registrable Securities to the extent requisite to
permit the disposition (in accordance with the intended methods thereof) of
the Registrable Securities. Subject to 2.3 below, the Shelf Registration
Statement shall at all times remain exclusively in favor of BRiT; PROVIDED,
HOWEVER, that if BRiT intends to conduct an Underwritten Shelf Offering (as
defined below) the Existing Registration Rights Holders, to the extent of
their respective rights to include securities in a registration or
participate in an underwritten offering, shall be entitled to elect to
include securities, subject to Section 2.5, of the same class as the
Registrable Securities in a registration covered by the Shelf Registration
Statement; FURTHER PROVIDED, that upon such election by any of the Existing
Registration Rights Holders, the appropriate portions of the Shelf
Registration Statement in such Underwritten Shelf Offering shall be amended
to accurately reflect such Existing Registration Rights Holders'
participation in an Underwritten Shelf Offering. It is understood that,
except in the event of an Underwritten Shelf Offering, if and to the extent
the Existing Registration Rights Holders wish to have ebix securities
registered pursuant to a shelf registration statement, a separate shelf
registration statement would be required absent written consent from BRiT or
otherwise in accordance with Section 2.3.
2.2 UNDERWRITTEN OFFERING. If BRiT intends to distribute the Registrable
Securities covered by the Shelf Registration Statement by means of an
underwritten offering (an "UNDERWRITTEN SHELF OFFERING"), BRiT shall so
advise ebix by written notice. The lead underwriter (the "LEAD UNDERWRITER")
will be selected by BRiT and will be reasonably acceptable to ebix. In such
event, BRiT shall (together with ebix as provided in subsection 4.1(f))
enter into an underwriting agreement in customary form with the underwriter
or underwriters selected for such underwriting. Ebix shall assist BRiT in
marketing the Registrable Securities to be sold pursuant to such
underwritten offering, including by participating in "road shows" and
similar marketing efforts as reasonably requested by BRiT or the
underwriters, subject in all events to the reasonable availability of ebix's
officers and other personnel.
2.3 INCLUSION OF OTHER SECURITIES. Subject to the rights of the Existing
Registration Rights Holders to include securities in a registration or to
participate in an Underwritten Shelf Offering as described above, neither
ebix nor any of its securityholders shall have the right to include any of
ebix's
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securities in the Shelf Registration Statement unless (a) BRiT has elected
to distribute the Registrable Securities covered by the Shelf Registration
Statement in an underwritten offering, (b) such securities are of the same
class as the Registrable Securities, (c) BRiT consents to such inclusion in
writing (such consent not to be withheld unreasonably) and (d) ebix or such
securityholders, as the case may be, agree in writing to sell, subject to
Section 2.5, their securities on the same terms and conditions as apply to
the Registrable Securities being sold. Subject to the rights of the Existing
Registration Rights Holders to include securities in a registration, if
securityholders of ebix other than BRiT include their securities in the
Shelf Registration Statement only in accordance with this Section 2.3, such
securityholders shall pay the fees and expenses of their counsel and their
PRO RATA share, on the basis of the respective amounts of securities
included in such registration on behalf of each such holder, of the
Registration Expenses if the Registration Expenses for such registration are
not paid by ebix for any reason.
2.4 EXPENSES. ebix shall pay all Registration Expenses incurred pursuant to this
Article 2. The holders of Registrable Securities will pay all Selling
Expenses in proportion to the amount of securities sold or as otherwise
agreed to among such holders.
2.5 PRIORITY IN CUTBACK REGISTRATIONS. Subject to the rights of the Existing
Registration Rights Holders to include securities in a registration, if a
registration in respect of an underwritten offering initiated by BRiT
pursuant to Section 2.2 above becomes a Cutback Registration, ebix shall
include in any such registration to the extent of the number which the Lead
Underwriter advises BRiT and ebix can be sold in such offering (a) FIRST,
Registrable Securities requested to be included in such registration by BRiT
and (b) SECOND, other securities of ebix proposed to be included in such
registration, allocated among ebix or the holders thereof in accordance with
the priorities then existing among ebix and the holders of such other
securities.
3. PIGGYBACK REGISTRATIONS
3.1 RIGHT TO INCLUDE REGISTRABLE SECURITIES. Notwithstanding anything to the
contrary in Article 2, if ebix at anytime proposes after the date hereof to
effect a Piggyback Registration, it will each such time give written notice
(a "NOTICE OF PIGGYBACK REGISTRATION") at least 10 days prior to the
anticipated filing date to BRiT of its intention to do so and of BRiT's
rights under this Article 3, which Notice of Piggyback Registration shall
include a description of the intended method of disposition of such
securities. Upon written request of BRiT made within five days after receipt
of Notice of Piggyback Registration (which request shall specify the
Registrable Securities intended to be disposed of by BRiT and the intended
method of disposition thereof), ebix shall use commercially reasonable
efforts to include in the registration statement relating to such Piggyback
Registration all Registrable Securities that ebix has been so requested to
register. Notwithstanding the foregoing, if, at any time after the giving of
a Notice of Piggyback Registration and prior to the effective date of the
registration statement filed in connection with such registration, ebix
shall determine for any reason not to register or to delay registration of
such securities, ebix may, at its election, give written notice of such
determination to BRiT and, thereupon:
(a) in the case of a determination not to register, ebix shall be relieved
of its obligation to register any Registrable Securities in connection
with such registration (but not from its obligation to pay the
Registration Expenses in connection therewith) without prejudice,
however, to the rights of BRiT under Article 2; and
(b) in the case of a determination to delay registering, ebix shall be
permitted to delay registering any Registrable Securities for the same
period as the delay in registering other securities.
No registration effected under this Article 3 shall relieve ebix of its
obligations to file a Shelf Registration Statement under Article 2.
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3.2 EXPENSES. ebix shall pay all Registration Expenses incurred in connection
with each Piggyback Registration. The holders of Registrable Securities will
pay all Selling Expenses in proportion to the amount of securities sold or
as otherwise agreed to among such holders.
3.3 PRIORITY IN CUTBACK REGISTRATIONS. Subject to the rights of the Existing
Registration Rights Holders to include securities in a registration, if a
Piggyback Registration becomes a Cutback Registration, ebix will include in
such registration to the extent of the amount of securities that the
underwriter or representative of the underwriters for the offering advises
ebix can be sold in such offering:
(a) if such registration as initially proposed by ebix was solely a primary
registration of its securities, (i) FIRST, the securities proposed to be
sold by ebix for its own account and (ii) SECOND, any Registrable
Securities requested to be included in such registration by BRiT;
(b) if such registration as initially proposed by ebix was in whole or in
part requested by securityholders other than BRiT pursuant to outstanding
demand registration rights, (i) FIRST, such securities held by the
holders initiating such registration and, if applicable, any securities
proposed by ebix to be sold for its own account, allocated in accordance
with the priorities then existing among ebix and such holders and
(ii) SECOND, any Registrable Securities requested to be included in such
registration by BRiT.
4. OBLIGATIONS OF ebix
4.1 REGISTRATION PROCEDURES. In furtherance of its obligations hereunder, ebix
shall, as expeditiously as possible:
(a) at least five days before filing the Shelf Registration Statement or any
amendment thereto, ebix shall furnish to BRiT copies of drafts of all
such documents proposed to be filed (including exhibits) and BRiT shall
have the opportunity to object to any information pertaining solely to
BRiT that is contained therein and ebix shall make the corrections
reasonably requested by BRiT with respect to such information prior to
filing any such registration statement;
(b) prepare and file with the SEC such amendments and supplements to the
Shelf Registration Statement and any prospectus used in connection
therewith as may be necessary to (i) maintain the continuous
effectiveness of the Shelf Registration Statement and (ii) comply with
the provisions of the Securities Act with respect to the disposition of
all Registrable Securities covered by such registration statement, in
accordance with the intended methods of disposition thereof as set forth
in such registration statement, until the earlier of (A) such time as all
of the Registered Securities have been disposed by BRiT (or its
successors or assigns) in accordance with this Agreement and (B) three
years after such registration statement becomes effective;
(c) promptly notify BRiT and the Lead Underwriter, if any:
(i) when such Shelf Registration Statement or any prospectus used in
connection therewith or any amendment or supplement thereto, has
been filed and, with respect to such registration statement or any
post-effective amendment thereto, when the same has become
effective;
(ii) of any written comments from the SEC with respect to any filing
referred to in subsection 4.1(c)(i) or of any written request from
the SEC for amendments or supplements to the Shelf Registration
Statement or prospectus;
(iii) of the notification to ebix by the SEC of its initiation of any
proceedings with respect to the Shelf Registration Statement, or of
the issuance by the SEC of any stop order suspending the
effectiveness of such registration statement; and
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(iv) of the receipt by ebix of any notification with respect to the
suspension of the qualification of any Registrable Securities for
sale under the applicable securities or blue sky laws of any
jurisdiction;
(d) furnish to each seller of Registrable Securities covered by the Shelf
Registration Statement such number of conformed copies of such
registration statement and of each amendment and supplement thereto (in
each case including all exhibits and documents incorporated by
reference), the prospectus contained in such registration statement and
any other prospectus filed under Rule 424 promulgated under the
Securities Act relating to the Registrable Securities and such other
documents as BRiT may reasonably request to facilitate the disposition of
the Registrable Securities;
(e) provide a transfer agent and registrar for all Registrable Securities
and a CUSIP number for all Registrable Securities, in each case not later
than the effective date of the related registration statement;
(f) in the event of any underwritten public offering of Registrable
Securities, enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the underwriters of such
offering and BRiT, which underwriting agreement shall include, among
other provisions, indemnities to the effect and to the extent provided in
Article 7 and shall further provide that ebix furnish to BRiT:
(i) an opinion of counsel for ebix dated the date of any closing under
the underwriting agreement, reasonably satisfactory in form and
substance to BRiT; and
(ii) an accountants' "comfort letter" dated the date of any closing
under the underwriting agreement, reasonably satisfactory in form
and substance to BRiT, signed by the independent public accountants
that have certified ebix's financial statements included in the
registration statement,
in each case covering substantially the same matters with respect
to the Shelf Registration Statement (and the prospectus included
therein) and, in the case of the comfort letter, with respect to
events subsequent to the date of such financial statements, as are
customarily covered, respectively, in opinions of issuer's counsel
and in accountants' letters delivered to the underwriters in
underwritten offerings of securities and, in the case of the
comfort letter, such other financial matters as BRiT or the Lead
Underwriter, if any, may request;
(g) notify BRiT when a prospectus relating thereto is required to be
delivered under the Securities Act (or other applicable law or
regulation) of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect,
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 then
existing;
(h) otherwise use its best efforts to comply with all applicable rules and
regulations of the SEC;
(i) make available for inspection by BRiT, any underwriter participating in
any disposition pursuant to such registration statement and any lawyer,
accountant or other agent retained by BRiT or any such underwriter or
agent (collectively, the "INSPECTORS") all financial and other records,
pertinent documents and properties of ebix (collectively, the "RECORDS")
as shall be reasonably necessary to enable them to exercise their due
diligence responsibility and cause ebix's officers, directors and
employees to supply all information reasonably requested by any such
Inspector in connection with such registration statement; and
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(j) cause all such Registrable Securities registered pursuant to this
Agreement to be listed on each securities exchange or nationally
recognized quotation system on which similar securities issued by ebix
are then listed.
BRiT agrees by acquisition of such Registrable Securities that upon receipt
of any notice from ebix of the happening of any event of the kind described
in subsection 4.1(g), BRiT will forthwith discontinue its disposition of
Registrable Securities pursuant to the Shelf Registration Statement until
its receipt of the copies of a supplemented or amended prospectus correcting
the untrue statements or omissions referred to in that subsection and, if so
directed by ebix, will deliver to ebix (at ebix's expense) all copies, other
than permanent file copies, then in its possession of the prospectus
relating to such Registrable Securities current at the time of receipt of
such notice.
5. UNDERWRITTEN OFFERINGS
5.1 REPRESENTATIONS AND WARRANTIES. BRiT may, at its option, require that any or
all of the representations and warranties by, and the other agreements on
the part of, ebix to and for the benefit of the underwriters also be made to
and for its benefit and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement also be
conditions precedent to its obligations. BRiT shall not be required to make
any representations or warranties to or agreements with ebix or the
underwriter other than representations, warranties or agreements regarding
BRiT, its ownership of the securities being registered on its behalf, its
intended method of distribution and the accuracy of any information
contained in registration statement concerning BRiT. Notwithstanding the
first sentence of this Section 5.1, ebix shall not be required to make any
representations, warranties or agreements with respect to matters with
respect to which BRiT can be obligated pursuant to the preceding sentence.
6. RESTRICTIONS
6.1 ADVERSE AFFECT
(a) If, after the Shelf Registration Statement or another registration
statement contemplating the offer or sale of the Registrable Securities
has become effective, ebix advises BRiT in writing that ebix considers it
necessary or appropriate for such registration statement to be amended or
supplemented in order for sales thereunder to be made in compliance with
the rules and regulations of the SEC, then BRiT shall suspend any further
sale, transfer or other disposition of its Registrable Securities
pursuant to such registration statement until ebix advises BRiT that such
registration statement has been amended or supplemented and, as so
amended or supplemented has been declared effective by the SEC.
(b) ebix may delay filing any amendment or supplement to the Shelf
Registration Statement, and may cause its effectiveness to be delayed, if
ebix advises BRiT in such written notice that the filing of such
amendment or supplement would (i) adversely affect the negotiation or
completion of a material transaction by ebix contemplated at the time the
right to delay is exercised or (ii) involve disclosure obligations not in
the best interest of ebix, provided that ebix may delay filing any such
amendment or supplement to the registration statement and may cause its
effectiveness to be delayed for a period not exceeding 60 days from the
date of such written notice to BRiT.
(c) The Parties agree that ebix shall have no rights under Section 6.1(b)
until January 1, 2002. In addition, the Parties agree that ebix shall not
exercise its rights under Section 6.1(b) to the extent such delay would
exceed an aggregate of 90 days in any calendar year.
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6.2 HOLDBACK AGREEMENTS
(a) Unless the managing underwriter of an underwritten offering by ebix
otherwise agrees, each holder of Registrable Securities agrees, to the
extent permitted by law, not to effect any public sale or distribution of
such securities, or any securities convertible into or exchangeable or
exercisable for such securities, during 15 days prior to and 90 days
after the effective date of any registration statement filed by ebix in
connection with such underwritten offering (or for such period of time as
is sufficient and appropriate in the opinion of the managing underwriter)
in order to complete the sale and distribution of the securities included
in such registration, except as part of such registration statement,
whether or not such holder participates in such registration.
(b) Unless the Lead Underwriter otherwise agrees ebix agrees not to effect
any public sale or distribution of its equity securities or any
securities convertible into or exchangeable or exercisable for such
securities during the 14 days prior to and the 90 days after the
effective date of any amendment to the Shelf Registration Statement in
connection with an underwritten offering made pursuant to the Shelf
Registration Statement (or for such shorter period of time as is
sufficient and appropriate in the opinion of the Lead Underwriter) except
pursuant to Non-Financing Registration Statements.
(c) The foregoing provisions of this Section 6.2 shall not apply to any
holder of securities of ebix to the extent such holder is prohibited by
applicable law from agreeing to withhold from sale or to the extent such
holder as acting in its capacity as a fiduciary or an investment adviser.
Without limiting the scope of the term "fiduciary", a holder shall be
deemed to be acting as a fiduciary or an investment adviser if its
actions or the shares proposed to be sold are subject to the United
States Employee Retirement Income Security Act of 1974, as amended, the
United States Investment Company ▇▇▇ ▇▇▇▇, as amended, or the United
States Investment Advisers Act of 1940, as amended, or if such shares are
held in a separate account under applicable law or regulation.
7. INDEMNIFICATION
7.1 INDEMNIFICATION OBLIGATIONS. In the event any Registrable Securities are
included in a registration statement under this Agreement:
(a) ebix shall indemnify and hold harmless BRiT, any underwriter (as defined
in the Securities Act) for BRiT and each person, if any, who controls
BRiT or underwriter within the meaning of the Securities Act or the
Exchange Act or other applicable law, against any losses, claims,
damages, or liabilities (joint or several) to which they may become
subject under the Securities Act, the Exchange Act or other applicable
United States federal or state securities law), insofar as such losses,
claims, damages, or liabilities (or actions in respect thereof) arise out
of or are based upon any of the following statements, omissions or
violations (collectively a "VIOLATION"): (i) any untrue statement or
alleged untrue statement of a material fact contained in such
registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto,
(ii) the omission or alleged omission to state therein a material fact
required to be stated therein, or necessary to make the statements
therein (in the case of the prospectus, in the light of the circumstances
under which they were made) not misleading, or (iii) any violation or
alleged violation by ebix of the Securities Act, the Exchange Act (or
other applicable securities law or United States federal or state
securities regulation), any blue sky law or any rule or regulation
promulgated under such laws, regulations or rules; and ebix will pay to
BRiT and each such underwriter or controlling person, as incurred, any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability, or
action;
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PROVIDED, HOWEVER, that the indemnity agreement contained in this
subsection 7.1(a) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability, or action if such settlement is
effected without the consent of ebix, nor shall ebix be liable in any
such case for any such loss, claim, damage, liability, or action to the
extent that it arises out of or is based upon a Violation that occurs in
reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by BRiT or any
such underwriter or controlling person.
(b) BRiT shall indemnify and hold harmless ebix, each of its directors, each
of its officers who has signed the registration statement, each person,
if any, who controls ebix within the meaning of the Securities Act, any
underwriter, any other holder selling securities in such registration
statement and any controlling person of any such underwriter or other
holder, against any losses, claims, damages, or liabilities (joint or
several) to which any of the foregoing persons may become subject, under
the Securities Act, the Exchange Act (or other applicable securities law
or securities regulation) or other federal or state securities law,
insofar as such losses, claims, damages, or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each
case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by
BRiT expressly for use in connection with such registration; and BRiT
will pay, as incurred, any legal or other expenses reasonably incurred by
any person intended to be indemnified pursuant to this subsection 7(b),
in connection with investigating or defending any such loss, claim,
damage, liability, or action; PROVIDED, HOWEVER, that the indemnity
agreement contained in this subsection 7(b) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of BRiT, which consent
shall not be unreasonably withheld; PROVIDED, HOWEVER, that in no event
shall any indemnity under this subsection 7(b) exceed the net proceeds
from the offering received by BRiT.
(c) Promptly after receipt by an indemnified party under this Article 7 of
notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to
be made against any indemnifying party under this Article 7, deliver to
the indemnifying party a written notice of the commencement thereof and
the indemnifying party shall have the right to participate in, and, to
the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with
counsel mutually satisfactory to the parties; PROVIDED, HOWEVER, that an
indemnified party (together with all other indemnified parties that may
be represented without conflict by one counsel) shall have the right to
retain one separate counsel, with the fees and expenses to be paid by the
indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to
actual or potential differing interests between such indemnified party
and any other party represented by such counsel in such proceeding. The
failure to deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action, if materially
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this
Article 7, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have
to any indemnified party otherwise than under this Article 7.
(d) If the indemnification provided for in this Article 7 is held by a court
of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, liability, claim, damage, or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such loss, liability,
claim, damage, or expense in such
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proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the
other in connection with the statements or omissions that resulted in
such loss, liability, claim, damage, or expense as well as any other
relevant equitable considerations. The relative fault of the indemnifying
party and of the indemnified party shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent, knowledge, access to information,
and opportunity to correct or prevent such statement or omission.
(e) The obligations of ebix and BRiT under this Article 7 shall survive the
completion of any offering of Registrable Securities in a registration
statement under this Agreement, and otherwise.
(f) Indemnification similar to that specified in this Article 7 shall be
given by ebix and BRiT with respect to any required registration or other
qualification of securities under any United States federal or state law
or regulation of any governmental authority other than the Securities
Act. The provisions of this Article 7 shall be in addition to any other
rights to indemnification or contribution which an indemnified party may
have pursuant to law, equity, contract or otherwise.
8. REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934
8.1 COVENANTS OF ebix. ebix hereby agrees:
(a) to file with the SEC in a timely manner all reports and other documents
required of ebix under the Securities Act and the Exchange Act;
(b) to comply with all rules and regulations of the SEC applicable in
connection with Rule 144 and take such other action and furnish BRiT with
other information as BRiT may request in order to avail itself of such
Rule or any other rule or regulation of the SEC allowing BRiT to sell any
Registrable Securities without registration;
(c) use its reasonable best efforts to take every action that is necessary
to effect the Shelf Registration Statement on Form S-3.
(d) furnish to BRiT, so long as BRiT owns any Registrable Securities such
other information as may be reasonably requested in availing BRiT of any
rule or regulation of the SEC that permits the selling of any such
securities.
9. LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS
9.1 NO EXISTING AGREEMENTS. ebix represents and warrants to BRiT that there is
not in effect on the date hereof any agreement by ebix other than this
Agreement pursuant to which any holder of securities of ebix has a right to
cause ebix to register or qualify securities under the Securities Act or any
securities or blue sky laws of any jurisdiction, other than as is set forth
in Exhibit A hereto.
9.2 FUTURE AGREEMENTS. From and after the date of this Agreement, ebix shall
not, without the prior written consent of BRiT, enter into any agreement
with any holder or prospective holder of any securities of ebix that would
allow such holder or prospective holder (a) to include such securities in
the Shelf Registration Statement, unless under the terms of such agreement,
such holder or prospective holder may include such securities in any such
registration only to the extent that the inclusion of his securities will
not reduce the amount of the Registrable Securities of BRiT that is included
or (b) to make a demand registration which could result in such registration
statement being declared effective prior to January 1, 2002.
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10. TERMINATION OF REGISTRATION RIGHTS
10.1 TERMINATION. All of ebix's obligations to register Registrable Securities
under this Agreement shall terminate on the earlier of the third anniversary
of the date the Shelf Registration Statement becomes effective or the date
on which all Registrable Securities are sold or transferred to persons who
are not "affiliates" of BRiT.
11. MERGERS
11.1 RESTRICTION ON MERGERS AND OTHER CORPORATE EVENTS. ebix shall not, directly
or indirectly, enter into any merger, consolidation or reorganization in
which ebix shall not be the surviving corporation unless the proposed
surviving corporation shall, prior to such merger, consolidation or
reorganization, agree in writing to assume the obligations of the company
under this Agreement, and for that purpose references hereunder to
Registrable Securities shall be deemed to be references to the securities
which BRiT would be entitled to receive in exchange for Registrable
Securities under any such merger, consolidation or reorganization; PROVIDED,
HOWEVER, that the provisions of this Section 11.1 shall not apply in the
event of any merger, consolidation or reorganization if BRiT is entitled to
receive in exchange for its Registrable Securities consideration consisting
solely of (a) cash, (b) securities of the acquiring corporation which may be
immediately sold to the public without registration under the Securities Act
or (c) securities of the acquiring corporation which the acquiring
corporation has agreed to register within 90 days of completion of the
transaction for resale to the public pursuant to the Securities Act.
12. MISCELLANEOUS
12.1 NOTICE. Any notice, demand or other communication given or made under this
Agreement shall be in writing and delivered or sent to the relevant Party at
its address or facsimile number set out below (or such other address or
facsimile number as the addressee has by five days' prior written notice
specified to the other Party):
to BRiT: BRiT Insurance Holdings plc
▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇ (▇▇) ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
copies to: ▇▇▇▇▇▇ & Whitney
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇ (▇▇) ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
to ebix: ▇▇▇▇.▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
copies to: ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
Suite 8000 Sears Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇ (▇▇▇) ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
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Any notice, demand or other communication so addressed to the relevant Party
shall be deemed to have been delivered: (a) if given or made by letter, when
actually delivered to the relevant address; and (b) if given or made by
facsimile, on the first business day following transmission if telegraphic
advice of such transmissions is given on such first business day and a
machine-printed confirmation of receipt is received by the sender.
12.2 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the terms and
conditions of this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns of the parties; PROVIDED,
HOWEVER, that the rights under Section 2 and Section 3 may be assigned only
to affiliates of BRiT. Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly
provided in this Agreement.
12.2 GOVERNING LAW. This Agreement shall be governed by and construed under the
laws of the State of New York, without reference to its conflict of laws
provisions.
12.3 COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
12.4 TITLES AND SUBTITLES. The titles and subtitles used in this Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Agreement.
12.5 EXPENSES. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
12.6 AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively), only
with the written consent of ebix and BRiT. No waivers of or exceptions to
any term, condition or provision of this Agreement, in any one or more
instances, shall be deemed to be, or construed as, a further or continuing
waiver of any such term, condition or provision.
12.7 SEVERABILITY. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision shall be excluded from
this Agreement, and the balance of the Agreement shall be interpreted as if
such provision were so excluded, and shall be enforceable in accordance with
its terms.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered by the
duly authorized officer of each party hereto as of the date first above written.
▇▇▇▇.▇▇▇, INC.
By:
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Name:
Title:
BRIT INSURANCE HOLDINGS PLC
By:
----------------------------
Name:
Title:
By:
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Name:
Title:
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