EXHIBIT 10.1
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated as of January 31, 2007 (this
"Agreement"), is made among CASTLEWOOD HOLDINGS LIMITED, a Bermuda company (the
"Company"), TRIDENT II, L.P., a Cayman Islands limited partnership, ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ CAPITAL PROFESSIONALS FUND, L.P., a Cayman Islands limited partnership
("CPF"), ▇▇▇▇▇ & McLENNAN EMPLOYEES' SECURITIES COMPANY, L.P., a Cayman Islands
limited partnership (collectively, "Trident"), J. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("JCF"),
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ("DS") and the other shareholders of the Company set forth
on the Schedule of Shareholders attached hereto (collectively, together with
Trident, JCF and DS, the "Shareholders").
A. The Company is a party to a Merger Agreement, dated as of May 23, 2006,
amended on November 21, 2006, with The Enstar Group, Inc., a Georgia corporation
("Enstar"), CWMS Subsidiary Corp., a Georgia corporation and a direct
wholly-owned subsidiary of the Company ("Merger Sub") (as amended, supplemented
or otherwise modified, the "Merger Agreement"), which provides, among other
things, for the merger (the "Merger") of Merger Sub with and into Enstar, with
Enstar continuing as the surviving corporation, and the issuance by the Company
of ordinary shares, par value $1.00 per share, of the Company (the "Ordinary
Shares") to the shareholders of Enstar pursuant to the Merger, the closing of
which (the "Closing") shall take place on the date hereof, concurrently with the
execution of this Agreement.
B. The Company and the Shareholders have entered into a Recapitalization
Agreement, dated as of May 23, 2006 (as amended, supplemented or otherwise
modified, the "Recapitalization Agreement"), which provides, among other things,
for the exchange of the outstanding shares of the Company for newly created
Ordinary Shares and non-voting convertible ordinary shares, par value $1.00 per
share, of the Company (the "Non-Voting Convertible Ordinary Shares") at the
Closing but immediately prior to the date and time the Merger becomes effective.
C. The Company has agreed to provide the registration rights set forth in
this Agreement.
D. Capitalized terms used in this Agreement and set forth in Section 10
are used as defined in Section 10. Capitalized terms used in this Agreement
without definition shall have the respective meanings assigned to them in the
Merger Agreement.
Now, therefore, the parties hereto agree as follows:
1. Demand Registrations.
(a) Requests for Registration. At any time following the one (1) year
anniversary of the date hereof, each of Trident, JCF and DS (each, a "Requesting
Holder") shall respectively be entitled to make requests in writing that the
Company effect the registration of all or any part of the Registrable Securities
held by such Holder (a "Registration Request"). Trident shall be entitled to
make three (3) such Registration Requests, JCF shall be entitled to make two (2)
such Registration Requests, and DS shall be entitled to make two (2) such
Registration Requests. Notwithstanding the foregoing, at one time following the
date that is ninety (90) days after the date hereof and prior to the one (1)
year anniversary of the date hereof, Trident may exercise one (1) of its
Registration Requests; provided that such Registration Request shall not be for
more than 750,000 Registrable Securities on the date of such request (after
giving effect to any subsequent stock split, combination, recapitalization or
similar transaction) (the "Initial Request"); provided, further, that Trident
shall give the Company at least 30 days prior written notice of its intent to
exercise the Initial Request. As promptly as reasonably practicable after its
receipt of any Registration Request, other than the Initial Request, but in any
event within seven (7) days of such request, the Company will give written
notice of such request to all other Holders, and will use its reasonable best
efforts to register, in accordance with the provisions of this Agreement, all
Registrable Securities that have been requested to be registered by the Holder
in the Registration Request or by any other Holders by written notice to the
Company given within ten (10) Business Days after the date the Company has given
such Holders notice of the Registration Request; provided, that the Company will
not be required to effect a registration pursuant to this Section 1(a) unless
the aggregate number of shares proposed to be registered constitutes at least
the lesser of (x) 25% of the total number of Registrable Securities held by the
Requesting Holder on the date hereof (or 15% in the case of an Initial Request)
or (y) 10% of the total number of Registrable Securities held by all Holders on
the date hereof, or if the total number of Registrable Securities then
outstanding is less than such amount, all of the Registrable Securities then
outstanding. The Company will not be obligated to effect any registration
pursuant to this Section 1(a) more than once in any nine (9) month period;
provided that the request for a registration that immediately follows the
registration pursuant to the Initial Request may be as soon as six (6) months
following such earlier registration. Notwithstanding anything contained herein
to the contrary, the Company will not include in the Initial Request any
securities other than Registrable Securities owned by Trident without Trident's
prior written consent. Except if expressly prohibited by applicable law, the
Company will pay all Registration Expenses incurred in connection with any
registration pursuant to this Section 1.
(b) Limitation on Demand Registrations. A request for registration will
not constitute the use of a Registration Request pursuant to Section 1(a) if (i)
the Requesting Holder and the Required Holders determine in good faith to
withdraw (prior to the effective date of the Registration Statement relating to
such request) the proposed registration, (ii) the Registration Statement
relating to such request is not declared effective within ninety (90) days of
the date such registration statement is first filed with the SEC, (iii) prior to
the sale of at least 90% of the Registrable Securities included in the
registration relating to such request, such registration is adversely affected
by any stop
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order, injunction or other order or requirement of the SEC or other
governmental agency, quasi-governmental agent or self-regulatory body or court
for any reason and the Company fails to have such stop order, injunction or
other order or requirement removed, withdrawn or resolved to the Holders of a
majority of Registrable Securities included in such registration statement
reasonable satisfaction within thirty (30) days of the date of such order, (iv)
more than 20% of the Registrable Securities requested by the Requesting Holder
to be included in the registration are not so included pursuant to Section 1(e);
provided, that, notwithstanding the foregoing, the Requesting Holder shall
nonetheless be permitted to include the number of Registrable Securities that
the underwriter permits to be included in such registration, (v) the conditions
to closing specified in any underwriting agreement or purchase agreement entered
into in connection with the registration relating to such request are not
satisfied (other than as a result of a material breach thereunder by the
Requesting Holder), or (vi) the Company did not provide Full Cooperation in the
case of an underwritten offering. Notwithstanding the foregoing but except if
expressly prohibited by applicable law, the Company will pay all Registration
Expenses in connection with any request for registration pursuant to Section
1(a) regardless of the application of this provision.
(c) Restrictions on Demand Registrations. The Company may postpone for a
reasonable period of time, not to exceed ninety (90) days, the filing or the
effectiveness of a Registration Statement for a Demand Registration if the
Company furnishes to the Holders a certificate signed by the Chief Executive
Officer of the Company stating that the Board of Directors of the Company has
determined that such Demand Registration is reasonably likely to have a material
adverse effect on any proposal or plan by the Company to engage in any
acquisition of assets or any merger, amalgamation, consolidation, tender offer
or similar transaction, or otherwise would have a material adverse effect on the
business, assets, operations, prospects or financial condition of the Company;
provided, that the Company may not effect such a postponement more than once in
any 360-day period. If the Company so postpones the filing or the effectiveness
of a Registration Statement, the Requesting Holder will be entitled to withdraw
such request and, if such request is withdrawn, such registration request will
not count as a Registration Request for the purposes of Section 1(a). Except if
expressly prohibited by applicable law, the Company will pay all Registration
Expenses incurred in connection with any such non-completed registration.
(d) Selection of Underwriters. If the Requesting Holder intends to
distribute the Registrable Securities covered by its Registration Request by
means of an underwritten offering, the Requesting Holder will so advise the
Company as a part of the Registration Request, and the Company will include such
information in the notice sent by the Company to the other Holders with respect
to such Registration Request. In such event, the Holders of a majority of the
Registrable Securities being so registered will have the right to select the
investment banker(s) and manager(s) to administer the offering, subject to the
Company's approval which will not be unreasonably withheld,
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conditioned or delayed. If the offering is underwritten, the right of any Holder
to registration pursuant to this Section 1 will be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise agreed by the
Required Holders), and each such Holder will (together with the Company and the
other Holders distributing their securities through such underwriting) enter
into an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting. In connection with each
underwritten Demand Registration, the Company shall cause there to be Full
Cooperation.
(e) Priority on Demand Registrations. The Company will not include in any
underwritten registration pursuant to Section 1(a) any securities that are not
Registrable Securities without the prior written consent of both Holders of a
majority of the Registrable Securities included in such Registration Statement
and the Requesting Holder. If the managing underwriter advises the Company that
in its opinion the number of Registrable Securities (and, if permitted
hereunder, other securities requested to be included in such offering) exceeds
the number of securities that can be sold in such offering without adversely
affecting the marketability of the offering, including the price at which the
securities can be sold, the Company will include in such offering the maximum
number of securities that in the opinion of such underwriters can be sold
without adversely affecting the marketability of the offering, including the
price at which the securities can be sold, which securities will be so included
in the following order of priority: (i) first, securities the Company proposes
to sell, provided that the Company shall not be entitled to such first priority
hereunder if such first priority has applied at any time during the 18 month
period preceding the relevant Registration Request, in which case clause (iii)
below shall apply to securities the Company proposes to sell; (ii) second,
Registrable Securities, pro rata among the respective Holders thereof
participating in such registration on the basis of the aggregate number of
Registrable Securities owned by each such Holder on the date of such request or
in such other manner as they may agree; and (iii) third, any other securities of
the Company that have been requested to be so included. Notwithstanding the
foregoing, no employee of the Company or any subsidiary thereof will be entitled
to participate, directly or indirectly, in any such registration to the extent
that the managing underwriter (or, in the case of an offering that is not
underwritten, a nationally recognized investment banking firm) determines in
good faith that the participation of such employee in such registration would
adversely affect the marketability or offering price of the securities being
sold in such registration; provided, however, that this sentence shall not apply
to any registration initiated by a Registration Request made by DS.
(f) Other Registration Rights. Except as provided in this Agreement, the
Company will not grant to any holder or prospective holder of any securities of
the Company registration rights with respect to such securities which are senior
to or otherwise conflict in any material respect with the rights granted
pursuant to this Section
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1 without the prior written consent of either each of the Requesting Holders or
of the Required Holders and, for such time as Trident owns at least 20% of the
Registrable Securities it owns as of the date hereof, Trident; provided, that
the foregoing shall not prevent the Company from granting additional demand or
piggy back registration rights that are pari passu with the rights set forth in
this Agreement, and any dilution of the registration rights herein resulting
from any such pari passu rights shall not be deemed to conflict with the rights
set forth herein.
2. Piggyback Registrations.
(a) Right to Piggyback. At any time after the date hereof, whenever the
Company proposes to register Ordinary Shares (other than a registration pursuant
to Section 1(a) (as a result of the piggyback registration rights related to
such registration being set forth in Section 1(a)), a registration on Form S-4
or a registration relating solely to employee benefit plans), whether for its
own account or for the account of one or more securityholders of the Company,
and the registration form to be filed may be used for the registration or
qualification for distribution of Registrable Securities, the Company will give
prompt written notice to all Holders of its intention to effect such a
registration and will include in such registration all Registrable Securities
with respect to which the Company has received written requests for inclusion
therein within fifteen (15) days after the date of the Company's notice (a
"Piggyback Registration"). Any Holder that has made such a written request may
withdraw its Registrable Securities from such Piggyback Registration by giving
written notice to the Company and the managing underwriter, if any, on or before
the fifth (5th) day prior to the anticipated effective date of such Piggyback
Registration. The Company may terminate or withdraw any registration initiated
by it and covered by this Section 2 prior to the effectiveness of such
registration, whether or not any Holder has elected to include Registrable
Securities in such registration, and except for the obligation to pay
Registration Expenses pursuant to Section 2(c) the Company will have no
liability to any Holder in connection with such termination or withdrawal. A
Piggyback Registration shall not be considered a Demand Registration for
purposes of Section 1 of this Agreement.
(b) Underwritten Registration. If the registration referred to in Section
2(a) is proposed to be underwritten, the Company will so advise the Holders as a
part of the written notice given pursuant to Section 2(a). In such event, the
right of any Holder to registration pursuant to this Section 2 will be
conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting, and each
such Holder will (together with the Company and the other Holders distributing
their securities through such underwriting) enter into an underwriting agreement
in customary form with the underwriter or underwriters selected for such
underwriting by the Company. If any Holder disapproves of the terms of the
underwriting, such Holder may elect to withdraw therefrom by written notice to
the Company and the managing underwriter.
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(c) Piggyback Registration Expenses. Except if expressly prohibited by
applicable law, the Company will pay all Registration Expenses in connection
with any Piggyback Registration, whether or not any registration or prospectus
becomes effective or final.
(d) Priority on Primary Registrations. If a Piggyback Registration relates
to an underwritten primary offering on behalf of the Company, and the managing
underwriters advise the Company that in their opinion the number of securities
requested to be included in such registration exceeds the number which can be
sold without adversely affecting the marketability of the offering, including
the price at which such securities can be sold, the Company will include in such
registration the maximum number of securities that in the opinion of such
underwriters can be sold without adversely affecting the marketability of the
offering, including the price at which such securities can be sold, which
securities will be so included in the following order of priority: (i) first,
the securities the Company proposes to sell, (ii) second, the Registrable
Securities requested to be included in such registration, pro rata among the
Holders of such Registrable Securities on the basis of the number of Registrable
Securities so requested to be included therein owned by each such Holder or in
such other manner as they may agree, and (iii) third, other securities requested
to be included in such registration. Notwithstanding the foregoing, any employee
of the Company or any subsidiary thereof will not be entitled to participate,
directly or indirectly, in any such registration to the extent that the managing
underwriter (or, in the case of an offering that is not underwritten, a
nationally recognized investment banking firm) will determine in good faith that
the participation of such employee in such registration would adversely affect
the marketability or offering price of the securities being sold in such
registration.
(e) Priority on Secondary Registrations. If a Piggyback Registration
relates solely to an underwritten secondary registration on behalf of other
holders of the Company's securities, and the managing underwriters advise the
Company that in their opinion the number of securities requested to be included
in such registration exceeds the number which can be sold without adversely
affecting the marketability of the offering, including the price at which such
securities can be sold, the Company will include in such registration the
maximum number of securities that in the opinion of such underwriters can be
sold without adversely affecting the marketability of the offering, including
the price at which such securities can be sold, which securities will be so
included in the following order of priority: (i) first, the securities requested
to be included therein by the holders requesting such registration and the
Registrable Securities requested to be included in such registration, pro rata
among the holders of such securities and Registrable Securities on the basis of
the number of securities so requested to be included therein owned by each such
holder or in such other manner as they may agree, and (ii) second, other
securities requested to be included in such registration. Notwithstanding the
foregoing, any employee of the Company or any subsidiary thereof will not be
entitled to participate, directly or indirectly, in any such registration to the
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extent that the managing underwriter (or, in the case of an offering that is not
underwritten, a nationally recognized investment banking firm) will determine in
good faith that the participation of such employee in such registration would
adversely affect the marketability or offering price of the securities being
sold in such registration.
(f) Other Registrations. If the Company files a Registration Statement
with respect to Registrable Securities pursuant to Section 1 or Section 2, and
if such registration has not been withdrawn or abandoned, the Company will not
file or cause to be effected any other registration of any of its equity
securities or securities convertible or exchangeable into or exercisable for its
equity securities under the Securities Act (except on Form S-4 or S-8 or any
successor or similar forms), whether on its own behalf or at the request of any
holder or holders of such securities, until a period of at least one hundred
eighty (180) days have elapsed from the effective date of the effectiveness of
such Registration Statement.
3. Registration Procedures. Subject to Section 1(c), whenever the Holders
of Registrable Securities have requested that any Registrable Securities be
registered pursuant to this Agreement, the Company will use its reasonable best
efforts to effect the registration and sale of such Registrable Securities in
accordance with the intended method of disposition thereof. Without limiting the
generality of the foregoing, the Company will, as expeditiously as possible:
(a) prepare and (within forty five (45) days after the end of the
period within which requests for registration may be given to the Company
pursuant hereto) file with the SEC a Registration Statement with respect
to such Registrable Securities, make all required filings with the
National Association of Securities Dealers and thereafter use its
reasonable best efforts to cause such Registration Statement to become
effective; provided, that before filing a Registration Statement or any
amendments or supplements thereto, the Company will furnish to
one firm of counsel selected by the Holders in accordance with Section
4(b) copies of all such documents proposed to be filed, which documents
will be subject to review of such counsel at the Company's expense. Unless
such counsel earlier informs the Company that it has no objections to the
filing of such Registration Statement, amendment or supplement, the
Company will not file such Registration Statement, amendment or supplement
prior to the date that is five Business Days from the date that such
counsel received such document. The Company will not file any Registration
Statement or amendment or post-effective amendment or supplement to such
Registration Statement to which such counsel will have reasonably objected
in writing on the grounds that such amendment or supplement does not
comply in all material respects with the requirements of the Securities
Act or of the rules or regulations thereunder. The Company shall not
permit any person acting on behalf of the Company to use any free writing
prospectus (as defined in Rule 405 under the Securities Act) in connection
with
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any registration statement covering Registrable Securities, without the
prior consent of the Holders named in such registration statement, such
consent not to be unreasonably withheld or delayed;
(b) prepare and file with the SEC such amendments and supplements to
such Registration Statement as may be necessary to keep such Registration
Statement effective for a period of either (i) not less than six (6)
months or, if such Registration Statement relates to an underwritten
offering, such longer period as in the opinion of - counsel for the
underwriters a prospectus is required by law to be delivered in connection
with sales of Registrable Securities by an underwriter or dealer or (ii)
such shorter period as will terminate when all of the securities
covered by such Registration Statement have been disposed of in accordance
with the intended methods of disposition by the Holder or Holders thereof
set forth in such Registration Statement (but in any event not before the
expiration of any longer period required under the Securities Act), and to
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement until
such time as all of such securities have been disposed of in accordance
with the intended methods of disposition by the Holder or Holders thereof
set forth in such Registration Statement;
(c) furnish to each Holder of the Registrable Securities being sold
such number of copies, without charge, of such Registration Statement,
each amendment and supplement thereto, including each preliminary
prospectus, final prospectus, all exhibits and other documents filed
therewith and such other documents as such Holder may reasonably request
including in order to facilitate the disposition of the Registrable
Securities owned by such Holder;
(d) use its reasonable best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of
such jurisdictions as any Holder reasonably requests and do any and all
other acts and things that may be necessary or reasonably advisable to
enable such Holder to consummate the disposition in such jurisdictions of
the Registrable Securities owned by such Holder (provided, that the
Company will not be required to (i) qualify generally to do business in
any jurisdiction where it would not otherwise be required to qualify but
for this subsection, (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction);
(e) use its reasonable best efforts to cause all Registrable
Securities covered by such Registration Statement to be registered with or
approved by such other governmental agencies, authorities or
self-regulatory bodies as may be necessary or reasonably advisable in
light of the business and operations of the
8
Company to enable the Holder or Holders thereof to consummate the
disposition of such Registrable Securities in accordance with the intended
method or methods of disposition thereof;
(f) immediately notify each Holder of such Registrable Securities
being sold and any underwriter(s), at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the
occurrence of any event which will have the result that, the prospectus
contains an untrue statement of a material fact or omits to state any fact
necessary to make the statements therein not misleading in the light of
the circumstances under which they were made, and, as promptly as
practicable, prepare and furnish to such Holder and underwriter(s) a
reasonable number of copies of a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain an untrue
statement of a material fact or omit to state any fact necessary to make
the statements therein not misleading in the light of the circumstances
under which they were made;
(g) notify each Holder of any Registrable Securities being sold and
covered by such Registration Statement (i) when the prospectus or any
prospectus supplement or post-effective amendment has been filed and, with
respect to such Registration Statement or any post-effective amendment,
when the same has become effective, (ii) of any request by the SEC for
amendments or supplements to such registration statement or to amend or to
supplement such prospectus or for additional information and (iii) of the
issuance by the SEC of any stop order suspending the effectiveness of such
registration statement or the initiation of any proceedings for any of
such purposes;
(h) use its reasonable best efforts to cause all such Registrable
Securities to be listed on each securities exchange on which similar
securities issued by the Company are then listed or, if no similar
securities issued by the Company are then listed on any securities
exchange, use its reasonable best efforts to cause all such Registrable
Securities to be listed on the Nasdaq;
(i) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such Registration
Statement;
(j) enter into such customary agreements (including underwriting
agreements with customary provisions) and take all such other actions as
the Requesting Holder, Holders of a majority of Registrable Securities
included in such Registration Statement or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of
such Registrable Securities (including, without limitation, effecting a
share split or a combination of shares);
9
(k) make available for inspection by any Holder of the Registrable
Securities being sold, any underwriter participating in any disposition
pursuant to such Registration Statement and any attorney, accountant or
other agent retained by any such Holder or underwriter, all financial and
other records, pertinent corporate documents and documents relating to the
business of the Company, and cause the Company's officers, directors,
employees and independent accountants to supply all information reasonably
requested by any such Holder, underwriter, attorney, accountant or agent
in connection with such Registration Statement; provided, that each Holder
will, and will use its commercially reasonable efforts to cause each such
underwriter, accountant or other agent to enter into a customary
confidentiality agreement in form and substance reasonably satisfactory to
the Company; provided further, that such confidentiality agreement will
not contain terms that would prohibit any such Person from complying with
its obligations under applicable law or Nasdaq rules.
(l) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months beginning with the first day
of the Company's first full calendar quarter after the effective date of
the Registration Statement, which earnings statement will satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(m) in the event of the issuance of any stop order suspending the
effectiveness of a Registration Statement, or of any order suspending or
preventing the use of any related prospectus or ceasing trading of any
securities included in such Registration Statement for sale in any
jurisdiction, use its reasonable best efforts promptly to obtain the
withdrawal of such order;
(n) enter into such agreements and take such other actions as the
Holders of the Registrable Securities being sold or the underwriters
reasonably request in order to expedite or facilitate the disposition of
such Registrable Securities, including, without limitation, preparing for
and participating in such number of "road shows" and all such other
customary selling efforts as the underwriters reasonably request in order
to expedite or facilitate such disposition;
(o) obtain one or more comfort letters, addressed to the Holders of
the Registrable Securities being sold (and, if such registration includes
an underwritten public offering to the underwriters of such offering),
signed by the Company's independent public accountants in customary form
and covering such matters of the type customarily covered by comfort
letters;
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(p) provide legal opinions of the Company's outside counsel,
addressed to the Holders of the Registrable Securities being sold (and, if
such registration includes an underwritten public offering, to the
underwriters of such offering), with respect to the Registration Statement
and prospectus in customary form and covering such matters of the type
customarily covered by legal opinions of such nature;
(q) furnish to any Holder of the Registrable Securities being sold
such information and assistance as such Holder may reasonably request in
connection with any "due diligence" effort which such Holder deem
appropriate; and
(r) use its reasonable best efforts to take or cause to be taken all
other actions, and do and cause to be done all other things, necessary or
reasonably advisable to effect the registration of such Registrable
Securities contemplated hereby.
The Company agrees not to file or make any amendment to any Registration
Statement with respect to any Registrable Securities, or any amendment of or
supplement to the prospectus used in connection therewith, that refers to any
Holder covered thereby by name, or otherwise identifies such Holder as the
holder of any securities of the Company, without the consent of such Holder,
such consent not to be unreasonably withheld or delayed, unless and to the
extent such disclosure is required by law.
The Company represents and warrants that no Registration Statement (including
any amendments or supplements thereto and prospectuses contained therein) shall
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein, or necessary to make the statements therein not
misleading (except that the Company makes no representation or warranty with
respect to information relating to any Holder furnished in writing to the
Company by or on behalf of the Holder specifically for inclusion therein).
The Company may require each Holder of Registrable Securities as to which any
registration is being effected to furnish the Company with such information
regarding such Holder and pertinent to the disclosure requirements relating to
the registration and the distribution of such securities as the Company may from
time to time reasonably request in writing.
4. Registration Expenses.
(a) Except as otherwise provided for herein, all expenses incidental to
the Company's performance of or compliance with this Agreement, including,
without limitation, all registration and filing fees (including SEC registration
and National Association of Securities Dealers filing fees), fees and expenses
of compliance with
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securities or blue sky laws, word processing, duplicating and
printing expenses, messenger and delivery expenses, transfer agent's and
registrar's fees, cost of distributing prospectuses in preliminary and final
form, as well as any supplements thereto, and fees and disbursements of counsel
for the Company and all independent certified public accountants, underwriters
and other Persons retained by the Company (all such expenses, "Registration
Expenses"), will be borne by the Company. In addition, the Company will, in any
event, pay its internal expenses (including, without limitation, all salaries
and expenses of its officers and employees performing legal or accounting
duties), the expenses of any annual audit or quarterly review, the expenses of
any liability insurance and the expenses and fees for listing the securities to
be registered on each securities exchange or automatic quotation system on which
similar securities issued by the Company are then listed (including the Nasdaq).
Notwithstanding the foregoing, all Selling Expenses will be borne by the holders
of the securities so registered pro rata on the basis of the number of their
shares so registered.
(b) In connection with each registration pursuant to Section 1 and each
Piggyback Registration, the Company will reimburse the Holders of the
Registrable Securities covered by such registration or qualification for the
reasonable fees and disbursements of one law firm, who will be chosen by the
Holders of a majority of the Registrable Securities being so registered.
5. Indemnification.
(a) The Company agrees to indemnify and hold harmless, and hereby does
indemnify and hold harmless, each Holder, its affiliates and their respective
officers, directors and partners and each Person who controls such Holder
(within the meaning of the Securities Act) against, and pay and reimburse such
holder, affiliate, director, officer or partner or controlling person for any
losses, claims, damages, expenses, liabilities, joint or several, to which such
holder or any such affiliate, director, officer or partner or controlling person
may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon (i)
any untrue or alleged untrue statement of material fact contained in any
Registration Statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto, or any "issuer free writing prospectus" (as
defined in Securities Act Rule 433), (ii) any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (iii) any violation or alleged violation by the
Company of any rule or regulation promulgated under the Securities Act , the
Exchange Act, the National Association of Securities Dealers or any state
securities laws applicable to the Company and relating to action or inaction
required of the Company in connection with any such registration, and the
Company will pay and reimburse such Holder and each such affiliate, director,
officer, partner and controlling person for any legal or any other expenses
actually and reasonably incurred by them in connection with
12
investigating, defending or settling any such loss, claim, liability, action or
proceeding; provided, that the Company will not be liable in any such case to
the extent that any such loss, claim, damage, expense, liability (or action or
proceeding in respect thereof) or expense arises out of or is based upon an
untrue statement or alleged untrue statement, or omission or alleged omission,
made in such Registration Statement, any such prospectus or preliminary
prospectus or any amendment or supplement thereto, or in any application, in
reliance upon, and in conformity with, written information prepared and
furnished to the Company by such Holder expressly for use therein or by such
Holder's failure to deliver, to the extent required by law and except to the
extent such failure results from a failure by the Company to comply with Section
3(f), a copy of the Registration Statement or prospectus or any amendments or
supplements thereto after the Company has furnished such Holder with a
sufficient number of copies of the same. In connection with an underwritten
offering, the Company, if requested, will indemnify such underwriters, their
officers and directors and each Person who controls such underwriters (within
the meaning of the Securities Act) to at least the same extent as provided above
with respect to the indemnification of the Holders.
(b) In connection with any Registration Statement in which a Holder is
participating, each such Holder will furnish to the Company in writing such
information as the Company reasonably requests for use in connection with any
such Registration Statement or prospectus and will indemnify and hold harmless
the Company, its directors and officers, each other Person who controls the
Company (within the meaning of the Securities Act) and each underwriter (to the
extent required by such underwriter) against any losses, claims, damages,
expenses, liabilities (or actions or proceedings, whether commenced or
threatened, in respect thereof), joint or several, to which the Company or any
such director or officer, any such underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages, liabilities, actions or proceedings arise out of or are based upon (i)
any untrue or alleged untrue statement of material fact contained in the
Registration Statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or in any application or (ii) any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is made in such Registration Statement, any such
prospectus or preliminary prospectus or any amendment or supplement thereto, or
in any application, in reliance upon and in conformity with written information
prepared and furnished to the Company by such Holder expressly for use therein,
and such Holder will reimburse the Company and each such director, officer,
underwriter and controlling Person for any legal or any other expenses actually
and reasonably incurred by them in connection with investigating, defending or
settling any such loss, claim, liability, action or proceeding; provided, that
the obligation to indemnify and hold harmless will be individual and several to
each Holder and will be limited to the amount of net proceeds received by such
Holder from the sale of Registrable Securities pursuant to such Registration
Statement.
13
(c) Any Person entitled to indemnification hereunder will (i) give prompt
written notice to the indemnifying party of any claim with respect to which it
seeks indemnification and (ii) unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist with respect to such claim, permit such indemnifying party to
assume the defense of such claim with counsel reasonably satisfactory to the
indemnified party. If such defense is assumed, the indemnifying party will not
be subject to any liability for any settlement made by the indemnified party
without its prior written consent (but such consent will not be unreasonably
withheld). An indemnifying party who is not entitled to, or elects not to,
assume the defense of a claim will not be obligated to pay the fees and expenses
of more than one counsel for all parties indemnified by such indemnifying party
with respect to such claim, unless in the reasonable judgment of any indemnified
party a conflict of interest may exist between such indemnified party and any
other of such indemnified parties with respect to such claim. Failure to give
prompt written notice shall not release the indemnifying party from its
obligations hereunder except to the extent that such indemnifying party is
materially prejudiced as a result of such failure to give notice.
(d) The indemnification provided for under this Agreement will remain in
full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and will survive the registration and sale of any securities
by any Person entitled to any indemnification hereunder and the expiration or
termination of this Agreement.
(e) If the indemnification provided for in this Section 5 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 herein,
then the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, will contribute to the amount paid or payable by such indemnified
party as a result of such loss, liability, claim, damage or expense in such
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 hand in
connection with the statements or omissions which resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations. The relevant fault of the indemnifying party and the indemnified
party will 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.
Notwithstanding the foregoing, the amount any Holder will be obligated to
contribute pursuant to this Section 5(e) will be limited to an amount equal to
the net proceeds to such Holder of the Registrable Securities sold pursuant to
the registration statement which gives rise to such obligation to contribute
(less the aggregate amount of any damages which the Holder has otherwise been
required to pay in respect of such loss,
14
claim, damage, expense, liability or action or any substantially similar loss,
claim, damage, expense, liability or action arising from the sale of such
Registrable Securities).
6. Participation in Underwritten Registrations.
(a) No Holder may participate in any registration hereunder that is
underwritten unless such Holder (i) agrees to sell its Registrable Securities on
the basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements (including, without
limitation, pursuant to the terms of any over-allotment or "green shoe" option
requested by the managing underwriter(s); provided, that no Holder will be
required to sell more than the number of Registrable Securities that such Holder
has requested the Company to include in any registration), (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements, and (iii) cooperates with the Company's reasonable
requests in connection with such registration or qualification (it being
understood that the Company's failure to perform its obligations hereunder,
which failure is caused by such Holder's failure to cooperate, will not
constitute a breach by the Company of this Agreement). Notwithstanding the
foregoing, no Holder will be required to agree to any indemnification
obligations on the part of such Holder that are materially greater than its
obligations pursuant to Section 6(b).
(b) Each Holder that is participating in any registration hereunder agrees
that, upon receipt of any notice from the Company of the happening of any event
of the kind described in subsection 3(f) above, such Holder will forthwith
discontinue the disposition of its Registrable Securities pursuant to the
Registration Statement until such Holder receives copies of a supplemented or
amended prospectus as contemplated by such Section 3(f). In the event the
Company gives any such notice, the applicable time period during which a
Registration Statement is to remain effective will be extended by the number of
days during the period from and including the date of the giving of such notice
pursuant to this Section 6(b) to and including the date when each Holder of a
Registrable Security being sold and covered by such Registration Statement will
have received the copies of the supplemented or amended prospectus contemplated
by Section 3(f).
7. Rule 144 and 144A Reporting.
(a) With a view to making available the benefits of certain rules and
regulations of the SEC which may permit the sale of restricted securities to the
public without registration, the Company agrees to:
(i) make and keep public information available as those terms are
understood and defined in Rule 144 under the Securities Act, and
15
(ii) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the
Exchange Act at any time after it has become subject to such reporting
requirements.
(b) For purposes of facilitating sales pursuant to Rule 144A, so long as
the Company is not subject to the reporting requirements of Section 13 or 15(d)
of the Exchange Act, each Holder and any prospective purchaser of such Holder's
securities will have the right to obtain from the Company, upon request of the
Holder prior to the time of sale, a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents so filed as such
Holder or prospective purchaser may reasonably request in availing itself of any
rule or regulation of the SEC allowing such Holder to sell any such securities
without registration, including the Company's most recent quarterly balance
sheet and profit and loss and retained earnings statements, and similar
financial statements for the two preceding fiscal years (the financial
statements to be audited to the extent reasonably available).
(c) Upon the request of any Holder, the Company will deliver to such
Holder a written statement as to whether it has complied with the foregoing
information requirements.
8. Lock Up Agreements. In consideration for the Company agreeing to its
obligations under this Agreement, each Holder agrees in connection with any
registration of the Company's securities (whether or not such Holder is
participating in such registration) upon the request of the Company and the
underwriters managing any underwritten offering of the Company's securities, not
to effect (other than pursuant to such registration) any public sale or
distribution of Registrable Securities, including, but not limited to, any sale
pursuant to Rule 144 or Rule 144A, or make any short sale of, loan, grant any
option for the purchase of, or otherwise dispose of any Registrable Securities,
any other equity securities of the Company or any securities convertible into or
exchangeable or exercisable for any equity securities of the Company without the
prior written consent of the Company or such underwriters, as the case may be,
for such period of time (not to exceed 90 days) beginning on the effective date
of such registration as the Company and the underwriters may specify; provided,
that nothing herein will prevent any Holder that is a partnership or corporation
from making a distribution of Registrable Securities to the partners or
shareholders thereof that is otherwise in compliance with applicable securities
laws, so long as such distributees agree to be so bound. The Company agrees to
use its reasonable best efforts to work with the underwriters to limit any
lock-up period under this Section 8 to the minimum number of days that the
underwriters consider advisable.
9. Term. This Agreement will be effective as of the date hereof and will
continue in effect thereafter until the earliest of (a) its termination by the
consent of the Required Holders and each of the Requesting Holders (but only if
such Requesting
16
Holder, as the case may be, holds any Registrable Securities at
such time) or, in each case, their respective successors in interest, (b) the
date on which no Registrable Securities remain outstanding and (c) the
dissolution, liquidation or winding up of the Company.
10. Defined Terms. Capitalized terms when used in this Agreement have the
following meanings:
"Business Day" means any day, except a Saturday, Sunday or legal holiday
on which banking institutions in The City of New York are authorized or
obligated to close.
"Full Cooperation" means, in connection with any underwritten offering,
where, in addition to the cooperation otherwise required by this
Agreement, (a) members of senior management of the Company (including the
chief executive officer and chief financial officer) reasonably cooperate
with the underwriter(s) in connection therewith and make themselves
reasonably available to participate in "road-shows" and other customary
marketing activities in such locations (domestic and foreign) as
reasonably recommended by the underwriter(s) (including one-on-one
meetings with prospective purchasers of the Registrable Securities) and
(b) the Company prepares preliminary and final prospectuses for use in
connection therewith containing such additional information as reasonably
requested by the underwriter(s) (in additional to the minimum amount of
information required by law, rule or regulation).
"Fully Marketed Underwritten Offering" means an underwritten offering in
which there is Full Cooperation.
"Holder" means any holder of outstanding Registrable Securities who is a
party to this Agreement or to whom the benefits of this Agreement have
been validly assigned.
"Person" means an individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an unincorporated
organization or a government or department or agency thereof.
"Register," "registered" and "registration" refers to a registration
effected by preparing and filing a Registration Statement in compliance
with the Securities Act, and the declaration or ordering of the
effectiveness of such Registration Statement, and compliance with
applicable state securities laws of such states in which Holders notify
the Company of their intention to offer Registrable Securities.
17
"Registrable Securities" means (i) any Ordinary Shares issued pursuant to
the Merger, (ii) any Ordinary Shares issued pursuant to the
Recapitalization Agreement, (iii) any Ordinary Shares issued upon
exercise, exchange or conversion of any options, restricted stock units or
other rights to acquire Ordinary Shares that are issued in connection with
the Merger or the Recapitalization Agreement, or (iv) any equity
securities issued or issuable with respect to the securities referred to
in the foregoing clauses (i) through (iii) by way of conversion, exercise
or exchange thereof or share dividend or share split or in connection with
a combination of shares, recapitalization, reclassification, merger,
amalgamation, arrangement, consolidation or other reorganization. As to
any particular securities constituting Registrable Securities, such
securities will cease to be Registrable Securities when (x) they have been
effectively registered or qualified for sale by prospectus filed under the
Securities Act and disposed of in accordance with the Registration
Statement covering them or (y) they have been sold to the public through a
broker, dealer or market maker pursuant to Rule 144 or Rule 145 or other
exemption from registration under the Securities Act. For purposes of this
Agreement, a Person will be deemed to be a holder of Registrable
Securities whenever such Person has the right to acquire directly or
indirectly such Registrable Securities (upon conversion, exercise or
exchange in connection with a transfer of securities or otherwise, but
disregarding any restrictions or limitations upon the exercise of such
right), whether or not such acquisition has actually been effected.
"Registration Expenses" has the meaning set forth in Section 4.
"Registration Request" has the meaning set forth in Section 1(a).
"Registration Statement" means the prospectus and other documents filed
with the SEC to effect a registration under the Securities Act.
"Required Holders" means Shareholders holding in the aggregate 50% or more
of the outstanding Registrable Securities.
"Rule 144" means Rule 144 under the Securities Act or any successor or
similar rule as may be enacted by the SEC from time to time, as in effect
from time to time.
"Rule 144A" means Rule 144A under the Securities Act or any successor or
similar rule as may be enacted by the SEC from time to time, as in effect
from time to time.
"Selling Expenses" means all underwriting discounts, selling commissions
and transfer taxes applicable to the sale of Registrable Securities
hereunder.
18
11. Miscellaneous.
(a) No Inconsistent Agreements. Subject to Section 1(f), the Company will
not hereafter enter into any agreement with respect to its securities that is
more favorable or is inconsistent or conflicts with or violates the rights
granted to the holders of Registrable Securities in this Agreement.
(b) Adjustments Affecting Registrable Securities. The Company will not
take any action, or permit any change to occur, with respect to its securities
which would materially and adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in a registration
or qualification for sale by prospectus undertaken pursuant to this Agreement or
which would adversely affect the marketability of such Registrable Securities in
any such registration or qualification (including, without limitation, effecting
a share split or a combination of shares).
(c) Remedies. The parties hereto agree and acknowledge that money damages
may not be an adequate remedy for any breach of the provisions of this Agreement
and that any party hereto will have the right to equitable relief, including
specific performance and injunctive relief, in addition to all of its other
rights and remedies at law or in equity, to enforce the provisions of this
Agreement.
(d) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and the Required Holders; provided, that in the
event that such amendment or waiver would treat a Holder or group of Holders in
a manner different from any other Holders, then such amendment or waiver will
require the consent of such Holder or the Holders of a majority of the
Registrable Securities of such group adversely treated.
(e) Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
permitted assigns; provided, that a Holder may not assign or otherwise transfer
its rights or obligations under this Agreement to any other Person without the
prior written consent of the Company.
(f) Severability. Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or the effectiveness or validity of any provision in any
other jurisdiction, and this Agreement will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
19
(g) Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, any one of which need not contain the signatures of more than
one party, but all such counterparts taken together will constitute one and the
same Agreement.
(h) Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
(i) Governing Law. This Agreement and the rights and duties of the parties
hereto hereunder shall be governed by and construed in accordance with laws of
the State of New York, without giving effect to its principles or rules of
conflict of laws to the extent such principles or rules are not mandatorily
applicable by statute and would require or permit the application of the laws of
another jurisdiction.
Any suit, action or proceeding seeking to enforce any provision of, or
based on any matter arising out of or in connection with, this Agreement or the
transactions contemplated hereby may be brought in any federal or state court
located in the County and State of New York, and each of the parties hereby
consents to the jurisdiction of such courts (and of the appropriate appellate
courts therefrom) in any such suit, action or proceeding and irrevocably waives,
to the fullest extent permitted by law, any objection which it may now or
hereinafter have to the laying of the venue of any such suit, action or
proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 12(l) shall be deemed
effective service of process on such party.
EACH OF THE PARTIES HERETO HERBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(j) Further Assurances. Each of the parties hereto shall execute such
documents and other papers and perform such further acts as may be reasonably
required or advisable to carry out the provisions of this Agreement and the
transactions contemplated hereby.
(k) Organizational Documents. Notwithstanding anything to the contrary
herein, all applicable provisions of the Company's Bye-Laws and Memorandum of
Association (the "Organizational Documents") shall apply to this Agreement and
any actions taken hereunder as if set forth herein, and any conflict between the
Organizational
20
Documents and this Agreement shall be resolved in favor of the provisions of the
Organizational Documents. The Company shall not amend or restate the
Organizational Documents at any time in a manner that would conflict in any
material respect with this Agreement, except to the extent required by
applicable law. If any conflict between this Agreement and the Organizational
Documents interferes in any material respect with the exercise of any
Registration Request or other right or remedy hereunder, the Company shall use
its reasonable best efforts to facilitate the exercise of such Registration
Request or other right or remedy without conflict with the Organizational
Documents.
(l) Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement will be in
writing and will be to the Company and the Shareholders in the manner set forth
in the Recapitalization Agreement at the addresses set forth in the
Recapitalization Agreement and on the Schedule of Shareholders attached hereto
(or at such other address or telecopy number as a party may designate to the
other parties).
(m) Entire Agreement. This Agreement together with the Organizational
Documents contains the entire agreement among the parties hereto with respect to
the subject matter hereof and supersedes and replaces all other prior
agreements, written or oral, among the parties hereto with respect to the
subject matter hereof.
(n) No Waivers. No failure or delay by any party in exercising any right,
power or privilege hereunder 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. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
[Remainder of this page left intentionally blank.]
21
IN WITNESS WHEREOF, the undersigned have set their hands and seals as of
the above date.
CASTLEWOOD HOLDINGS LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
J. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ J. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
TRIDENT II, L.P.
By: Trident Capital II, L.P.
Its sole general partner
By: DW Trident GP, LLC, a general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Member
22
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ CAPITAL
PROFESSIONALS FUND, L.P.
By: Stone Point Capital LLC, as manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Principal
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ EMPLOYEES'
SECURITIES COMPANY, L.P.
By: ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇ I, Inc.
Its sole general partner
By: Stone Point Capital LLC, its
attorney-in-fact
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Member
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇. ▇'▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇'▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
T. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ T. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
23
T. ▇▇▇▇▇ ▇▇▇▇▇
/s/ T. ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
The COMMON SEAL of R&H TRUST
CO. (BVI) LTD., as trustee of THE
RIGHT TRUST was hereunto affixed
in the presence of
By: /s/ ▇▇▇▇▇ Steel / ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ Steel and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Directors
The COMMON SEAL of R&H TRUST CO.
(NZ) LIMITED, as trustee of THE
LEFT TRUST was hereunto affixed
in the presence of
By: /s/ BMR ▇▇▇▇▇
------------------------------------
Name: BMR ▇▇▇▇▇
Title: Director
The COMMON SEAL of R&H
TRUST CO. (BVI) LTD., as trustee
of THE ELBOW TRUST was hereunto
affixed in the presence of
24
By: /s/ ▇▇▇▇▇ Steel / ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ Steel and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Directors
The COMMON SEAL of R&H
TRUST CO. (BVI) LTD., as trustee of
THE HOVE TRUST was hereunto affixed
in the presence of
By: /s/ ▇▇▇▇▇ Steel / ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ Steel and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Directors
▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ GIVEN
/s/ ▇▇▇▇▇ Given
----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ZISARUK
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▇▇▇▇▇ WESTERN
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Schedule of Shareholders
Name Address and Telecopy Number
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J. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
T. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
T. ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Trident II, ▇.▇.
▇▇▇▇▇ & McLennan Capital
Professionals Fund, ▇.▇.
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Employees' Securities
Company, L.P.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
R&H Trust Co. (BVI) Ltd., as trustee of
The Right Trust
R&H Trust Co. (NZ) Limited, as trustee of
The Left Trust
R&H Trust Co. (BVI) Ltd., as trustee of
The Elbow Trust
R&H Trust Co. (BVI) Ltd., as trustee of
The Hove Trust
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▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ Given
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▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Zisaruk
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2
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Orla ▇▇▇▇▇▇▇
▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ Western
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3