EXHIBIT 4.5
WARRANT PURCHASE AGREEMENT
DATED AS OF ________, 1998
BY AND BETWEEN
SCOTTISH LIFE HOLDINGS, LTD.
AND
[PURCHASER]
__________________________________
CLASS B WARRANTS
__________________________________
TABLE OF CONTENTS
ARTICLE I PURCHASE AND SALE OF SHARES......................................................1
Section 1.1 Purchase and Sale......................................................1
Section 1.2 Closing................................................................1
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY....................................2
Section 2.1 Corporate Organization.................................................2
Section 2.2 Subsidiaries...........................................................2
Section 2.3 Authorization..........................................................2
Section 2.4 Capitalization.........................................................2
Section 2.5 Financial Statements...................................................3
Section 2.6 Proceedings............................................................3
Section 2.7 Consents...............................................................3
Section 2.8 Absence of Certain Changes.............................................4
Section 2.09 Certain Events.........................................................4
Section 2.10 Payments by Subsidiary.................................................4
Section 2.11 Investment Company Act; Exchange Act...................................4
Section 2.12 Certain Certificates...................................................4
Section 2.13 Accounting.............................................................5
Section 2.14 No Violations..........................................................5
Section 2.15 Share Certificates.....................................................5
Section 2.16 Exchange Controls......................................................5
Section 2.17 Certain Insurance Regulations..........................................6
Section 2.18 Authorizations to Conduct Business.....................................6
Section 2.19 Certain U.S. Requirements..............................................6
Section 2.20 Certain Relationships..................................................6
Section 2.21 Stamp Tax..............................................................6
Section 2.22 Change in Insurance Law................................................7
Section 2.23 Securities Laws........................................................7
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE INVESTOR..................................7
Section 3.1 Representations and Warranties.........................................7
ARTICLE IV COVENANTS OF THE COMPANY AND THE INVESTOR........................................9
Section 4.1 Insurance..............................................................9
Section 4.2 Conduct of Business....................................................9
Section 4.3 Payment of Taxes, Compliance with Laws, Etc............................9
Section 4.4 Proceeds...............................................................9
Section 4.5 Registration Rights....................................................9
ARTICLE V CLOSING DELIVERIES...............................................................10
Section 5.1 Registration Rights Agreement.........................................10
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Section 5.2 Purchase Price........................................................10
Section 5.3 Warrant Certificates..................................................10
ARTICLE VI POST-CLOSING DELIVERIES..........................................................10
Section 6.1 Secretary's Certificate...............................................10
Section 6.2 Opinion of Counsel to the Company.....................................10
ARTICLE VII MISCELLANEOUS...................................................................11
Section 7.1 Amendment, Waivers and Consents.......................................11
Section 7.2 Survival of Representations; Warranties and Covenants;
Assignability of Rights............................................11
Section 7.3 Applicable Law........................................................11
Section 7.4 Consent to Jurisdiction and Service of Process........................11
Section 7.5 Section Headings......................................................12
Section 7.6 Counterparts..........................................................12
Section 7.7 Notices and Demands...................................................12
Section 7.8 Severability..........................................................13
Section 7.9 Integration...........................................................13
Section 7.10 Publicity.............................................................13
Section 7.11 Restrictions on Transfer..............................................13
SCHEDULES
EXHIBIT A Form of Class B Warrant
EXHIBIT B Form of Registrations Rights Agreement
EXHIBIT C Form of Legal Opinion
EXHIBIT D Form of Legal Opinion
ii
WARRANT PURCHASE AGREEMENT (this "Agreement"), dated as of ________,
---------
1998, by and between SCOTTISH LIFE HOLDINGS, LTD., a corporation organized under
the laws of the Cayman Islands, British West Indies (the "Company"), and
-------
[PURCHASER], a ___________ (the "Investor").
--------
RECITALS
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Upon the terms and subject to the conditions of this Agreement, the
Company is issuing and selling to the Investor the Class B Warrant (the "Class B
-------
Warrant"), in the form of Exhibit A hereto, to purchase ________ of the
-------
Company's Ordinary Shares, par value $0.01 per shares (the "Ordinary Shares")
such Class B Warrant exercisable to purchase _______ Ordinary Shares at a per
share purchase price equal to the sales price to the public of an Ordinary Share
in the Company's initial public offering of its Ordinary Shares, subject to
adjustment under certain circumstances as provided in the Class B Warrants.
In consideration of the mutual covenants and agreements set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the parties agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
---------------------------
Section 1.1 Purchase and Sale. Subject to the terms and conditions
-----------------
set forth herein and in reliance on the representations, warranties and
covenants set forth herein, the Company is contemporaneously herewith issuing
and selling to the Investor, and the Investor is contemporaneously herewith
purchasing from the Company, a Class B Warrant for the aggregate purchase price
of $_______ payment of which is being made contemporaneously herewith by the
Investor to the Company by certified check or wire transfer of immediately
available funds to an account designated by the Company (the "Investment").
----------
Section 1.2 Closing. The purchase and sale of the shares of Class B
-------
Warrants constituting the Investment are taking place at a closing (the
"Closing") at the offices of ______________, at ____ on the date hereof or such
-------
other date and time as may be agreed by the Company and the Investor. The date
and time of Closing are referred to herein as the "Closing Date".
------------
1
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
---------------------------------------------
The Company represents and warrants to the Investor as follows:
Section 2.1 Corporate Organization. Each of the Company and Scottish
----------------------
Life Assurance Company (Cayman) Ltd., a Cayman Islands, British West Indies
corporation (the "Subsidiary"), has been duly organized and is validly existing
as a corporation in good standing under the laws of the Cayman Islands, British
West Indies and is duly qualified to transact business as a foreign corporation
and is in good standing under the laws of all other jurisdictions where the
ownership or leasing of its properties or the conduct of its business requires
such qualification, except where the failure to be so qualified does not amount
to a material liability or disability to the Company and its Subsidiary, taken
as a whole.
Section 2.2 Subsidiaries. The Company has no subsidiary other than
------------
the Subsidiary. The issued shares of capital stock of the Subsidiary have been
duly authorized and validly issued, are fully paid and nonassessable and are
owned beneficially by the Company free and clear of any security interests,
liens, encumbrances, equities or claims.
Section 2.3 Authorization. The Company has all requisite corporate
-------------
power and authority to execute and deliver this Agreement, the Registration
Rights Agreement in the form of Exhibit B hereto of even date herewith, between
the Company and the Investor (the "Registration Rights Agreement") and the Class
-----------------------------
B Warrant, and to carry out its obligations hereunder and thereunder. The
execution and delivery of this Agreement, the Registration Rights Agreement and
the Class B Warrant, and the performance by the Company of its obligations
hereunder and thereunder have been duly authorized by the Company, and no other
corporate proceeding therefor on the part of the Company or its stockholders is
required. This Agreement, the Registration Rights Agreement and the Class B
Warrant have been duly executed and delivered by the Company and are the valid
and binding obligations of the Company, enforceable against it in accordance
with their terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws
relating to the enforcement of creditors' rights and remedies or other equitable
principles of general application. Each of the Company and its Subsidiary has
full corporate power to own or lease its properties and to conduct its business
as described in the draft S-1 Registration Statement of the Company dated the
date hereof (the "Information Materials").
Section 2.4 Capitalization.
--------------
(a) The Company has an authorized, issued and outstanding
capitalization as set forth in the Information Materials. All of the issued
shares of capital stock of the Company have been duly authorized and validly
issued and are fully paid and nonassessable. The Class B Warrant has been duly
authorized and, after payment therefor in accordance herewith, will be validly
issued, fully paid and nonassessable. No holders of outstanding shares of
capital stock of the Company are entitled as such to any preemptive or other
rights to subscribe for any Ordinary Shares or Class B Warrants (including any
Ordinary Shares issuable upon exercise of the Class B
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Warrants) and the Ordinary Shares initially issuable upon conversion of the
Class B Warrants have been duly and validly authorized and reserved for issuance
upon such conversion and, when issued upon conversion, will be validly issued,
fully paid and nonassessable.
(b) The capital stock of the Company conforms to the description
thereof contained in the Information Materials.
(c) Except as disclosed in the Information Materials, there are no
outstanding (A) securities or obligations of the Company or its Subsidiary
convertible into or exchangeable for any capital stock of the Company or its
Subsidiary, (B) warrants, rights or options to subscribe for or purchase from
the Company or its Subsidiary any such capital stock or any such convertible or
exchangeable securities or obligations, or (C) obligations of the Company or its
Subsidiary to issue any shares of capital stock, any such convertible or
exchangeable securities or obligations, or any such warrants, rights or options.
Section 2.5 Financial Statements. The consolidated balance sheet of
--------------------
the Company and its Subsidiary included in the Information Materials fairly
present the financial position of the Company and its Subsidiary as of the date
therein specified. Such balance sheet has been prepared in accordance with
United States generally accepted accounting principles consistently applied
throughout the periods involved (except as otherwise noted therein).
Section 2.6 Proceedings. Except as set forth in the Information
-----------
Materials, there are no legal or governmental proceedings pending to which the
Company or its Subsidiary is a party or to which the property of the Company or
its Subsidiary is subject, and no such proceedings have been threatened against
the Company or its Subsidiary or with respect to any of their respective
properties; and except as set forth in the Information Materials, neither the
Company nor the Subsidiary is party to any material contract or other document.
Section 2.7 Consents. The issuance, offering and sale of the Class B
--------
Warrant to the Investor by the Company pursuant to this Agreement and the
issuance of Ordinary Shares issuable upon the exercise of the Class B Warrants
and the compliance by the Company with the other provisions of this Agreement
and the Class B Warrants and the consummation of the other transactions herein
and therein contemplated do not (i) require the consent, approval,
authorization, registration or qualification of or with any governmental
authority, or (ii) conflict with or result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, lease or other agreement or instrument to which the
Company or its Subsidiary is a party or by which the Company or its Subsidiary
or any of their respective properties are bound, or the Memorandum of
Association or Articles of Association of the Company or its Subsidiary, or any
statute or any judgment, decree, order, rule or regulation of any court or other
governmental authority or any arbitrator applicable to the Company or its
Subsidiary.
Section 2.8 Absence of Certain Changes. Subsequent to the respective
--------------------------
dates as of which information is given in the Information Materials, neither the
Company nor its Subsidiary has sustained any material loss or interference with
their respective businesses or properties from fire, flood, hurricane, accident
or other calamity, whether or not covered by
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insurance, or from any labor dispute or any legal or governmental proceeding and
there has not been any material adverse change, or any development involving a
prospective material adverse change, in the condition (financial or otherwise),
management, business prospects, net worth, or results of the operations of the
Company or its Subsidiary, except in each case as described in or contemplated
by the Information Materials.
Section 2.09 Certain Events. Subsequent to the respective dates as
--------------
of which information is given in the Information Materials, (1) the Company and
its Subsidiary have not incurred any material liability or obligation, direct or
contingent, nor entered into any material transaction not in the ordinary course
of business; (2) the Company has not purchased any of its outstanding capital
stock, nor declared, paid or otherwise made any dividend or distribution of any
kind on its capital stock; and (3) there has not been any material change in the
capital stock, short-term debt or long-term debt of the Company and its
Subsidiary, except in each case as described in or contemplated by the
Information Materials.
Section 2.10 Payments by Subsidiary. The Company's Subsidiary is not
----------------------
currently prohibited, directly or indirectly, from paying any dividends to the
Company, from making any other distribution on its capital stock, from repaying
to the Company any loans or advances to it from the Company or from transferring
any of its property or assets to the Company, except as described in or
contemplated by the Information Materials.
Section 2.11 Investment Company Act; Exchange Act. The Company and
------------------------------------
its Subsidiary will conduct their operations in a manner that will not subject
either of them to registration as an investment company under the Investment
Company Act of 1940, as amended (the "1940 Act"), an investment adviser under
the Investment Advisers Act of 1940, as amended (the "Advisers Act"), or a
broker-dealer under the Securities Exchange Act of 1934, as amended (the "1934
Act"), and the transaction contemplated hereby will not cause the Company or its
Subsidiary to become an investment company subject to registration under the
1940 Act, an investment adviser subject to registration under the Advisers Act
or a broker-dealer subject to registration under the 1934 Act. The Company and
its Subsidiary will conduct their operations in accordance with the requirements
of Rule 3a-6 under the 1940 Act.
Section 2.12 Certain Certificates. Each certificate with respect to
--------------------
this Agreement or the Class B Warrant signed by any officer of the Company and
delivered to the Investors or its counsel shall be deemed to be a representation
and warranty by the Company as to the matters covered thereby.
Section 2.13 Accounting. The Company and its Subsidiary maintain a
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system of internal accounting controls sufficient to provide reasonable
assurance that (1) transactions are executed in accordance with management's
general or specific authorizations; (2) transactions are recorded as necessary
to permit preparation of financial statements in conformity with United States
generally accepted accounting principles and to maintain asset accountability;
(3) access to assets is permitted only in accordance with management's general
or specific authorization; and (4) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
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Section 2.14 No Violations. Neither the Company nor the Subsidiary
-------------
is (i) in violation of its Memorandum of Association or Articles of Association
or other organizational documents, (ii) in violation of any law, ordinance,
administrative or governmental rule or regulation applicable to it or any of its
properties, except where any such violation or violations in the aggregate could
not reasonably be expected to have a material adverse effect on the condition
(financial or otherwise), management, business prospects, net worth or results
of the operations of the Company and its Subsidiary, taken as a whole, (iii) in
violation of any judgment, injunction, order or decree of any court,
governmental agency or body (including, without limitation, any insurance
regulatory agency or body) or arbitrator having jurisdiction over it, except
where any such violation or violations in the aggregate could not reasonably be
expected to have a material adverse effect on the condition (financial or
otherwise), management, business prospects, net worth or results of the
operations of the Company and its Subsidiary, taken as a whole, and (iv) no
default exists, and no event has occurred which, with notice or lapse of time or
both, would constitute a default in the due performance and observance of any
term, covenant or condition of any indenture, mortgage, deed of trust, lease or
other agreement or instrument to which the Company or its Subsidiary is a party
or by which the Company or its Subsidiary or any of their respective properties
is bound or may be affected, except where any such default or event or defaults
or events in the aggregate could not reasonably be expected to have a material
adverse effect on the condition (financial or otherwise), management, business
prospects, net worth or results of the operations of the Company and its
Subsidiary, taken as a whole.
Section 2.15 Share Certificates. The forms of certificate for the
------------------
Ordinary Shares and Class B Warrants conform to the requirements of the
Companies Law (1995 Revision) of the Cayman Islands, British West Indies.
Section 2.16 Exchange Controls. No currency exchange control laws or
-----------------
withholding taxes of the Cayman Islands, British West Indies or elsewhere apply
to the payment of dividends (i) on the Ordinary Shares by the Company or (ii) by
the Subsidiary to the Company, except in each case as described in or
contemplated by the Information Materials.
Section 2.17 Certain Insurance Regulations. The Subsidiary has made
-----------------------------
application to be duly licensed by the Governor-in-Council as an unrestricted
Class "B" insurer under the Insurance Law (1998 Revision) of the Cayman Islands,
British West Indies (the "Insurance Law") and is in compliance with the
requirements of the Insurance Law and any applicable rules and regulations
thereunder and will file all statutory financial returns, reports, documents or
other information required to be filed thereunder, except where the failure to
comply or to file would not have a material adverse effect on the condition
(financial or otherwise), management, business prospects, net worth, or results
of the operations of the Company and its Subsidiary, taken as a whole. The
Company is a holding company and is not subject to Cayman Islands insurance
regulations. The Company and its Subsidiary are in compliance with all other
insurance laws and regulations of the jurisdictions that apply to them,
including laws that relate to companies that control insurance companies, except
where the failure to comply would not have a material adverse effect on the
condition (financial or otherwise), management, business prospects, net worth,
or results of the operations of the
5
Company and its Subsidiary, taken as a whole. Neither the Company nor its
Subsidiary has received any notification from any insurance authority,
commission or other insurance regulatory body in the Cayman Islands or elsewhere
to the effect that the Subsidiary is not in compliance with any insurance law or
regulation.
Section 2.18 Authorizations to Conduct Business. Each of the Company
----------------------------------
and the Subsidiary possess all certificates, authorizations and permits issued
by the appropriate Cayman Islands, United States federal, state or foreign
regulatory authorities necessary to conduct their respective businesses, and
neither the Company nor the Subsidiary has received any notice of proceedings
relating to, or knows of any event that could reasonably be expected to result
in, the revocation or modification of any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a material adverse change in the
condition (financial or otherwise), management, business prospects, net worth or
results of operations of the Company and the Subsidiary, except as described in
or contemplated by the Information Materials.
Section 2.19 Certain U.S. Requirements. Neither the Company nor its
-------------------------
Subsidiary is required to be licensed or admitted as an insurer or an insurance
holding company, as applicable, or to otherwise comply with the insurance laws
and regulations of any jurisdictions within the United States in order to
conduct their respective businesses as described in the Information Materials.
Section 2.20 Certain Relationships. All material relationships,
---------------------
direct or indirect, existing between or among the Company or its Subsidiary on
the one hand, and the directors, officers, promoters, affiliates or shareholders
of the Company or its Subsidiary on the other hand, have been described in the
Information Materials.
Section 2.21 Stamp Tax. The Investor will not be subject to any
---------
stamp duty, excise or similar tax imposed in the Cayman Islands, British West
Indies in connection with the offering, sale or purchase of the Class B Warrants
or the exercise thereunder for Ordinary Shares.
Section 2.22 Change in Insurance Law. To the knowledge of the
-----------------------
Company and its Subsidiary, no change in any insurance law or regulation is
pending that could have, individually or in the aggregate, a material adverse
effect on the condition (financial or otherwise), business prospects, net worth
or results of the operations of the Company and its Subsidiary, except as
described in or contemplated by the Information Materials.
Section 2.23 Securities Laws. (a) It is not necessary in connection
---------------
with the offer, sale and issuance of the Class B Warrant in the manner
contemplated by this Agreement, or the issuance of the Ordinary Shares upon
exercise of the Class B Warrant in the manner contemplated thereby, to register
the Class B Warrant or the Ordinary Shares under the Securities Act of 1933, as
amended (the "1933 Act"), or any applicable state securities or blue sky laws.
(b) Neither the Company nor any affiliate (as defined in Rule 501(b)
of Regulation D ("Regulation D") under the ▇▇▇▇ ▇▇▇) of the Company has directly
or through any agent (i) sold, offered for sale, solicited offers to buy or
otherwise negotiated in respect of, any
6
security (as defined in the 1933 Act) which is or will be integrated with the
sale of the Class B Warrant or the underlying Ordinary Shares in a manner that
would require the registration of the Class B Warrant under the 1933 Act or (ii)
engaged in any form of general solicitation or general advertising (within the
meaning of Regulation D) in connection with the offering of the Class B Warrant.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
----------------------------------------------
Section 3.1 Representations and Warranties. The Investor represents
------------------------------
that:
(a) It is a ____________ duly formed, validly existing and in good
standing under the laws of __________. The Investor has all requisite power and
authority to own, operate and lease its properties and to conduct its business
as currently conducted. The Investor is duly qualified or licensed to do
business and is in good standing in each jurisdiction in which its ownership or
leasing of property or the conduct of its business requires such licensing or
qualification, except to the extent that the failure to be so qualified or
licensed would not have a material adverse effect on it.
(b) It has all requisite power and authority to execute and deliver
this Agreement and to carry out its obligations hereunder. The execution and
delivery of this Agreement and the performance by the Investor of its
obligations hereunder, have been duly authorized by the Investor, and no other
proceeding therefor on the part of the Investor or any of its partners is
required. This Agreement has been duly executed and delivered by the Investor
and is the valid and binding obligation of the Investor, enforceable against it
in accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar laws relating to the enforcement of creditors' rights and remedies or by
other equitable principles of general application.
(c) It is purchasing the Class B Warrant (including the Ordinary
Shares issuable upon exercise thereof) for the Investor's own account for
investment only and not with a view to or for sale in connection with the
distribution thereof, except for sales contemplated by the Registration Rights
Agreement, and provided that the disposition of the Investor's Class B Warrant
(and Ordinary Shares obtainable upon exercise thereof) shall at all times remain
within its control.
(d) It has such knowledge and experience in financial and business
matters that the Investor is capable of evaluating the merits and risks of the
investment contemplated by this Agreement and making an informed investment
decision with respect thereto.
(e) It is an institutional "accredited investor" as such term is
defined in Rule 501 under the Securities Act.
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(f) It has had the opportunity to ask questions and receive answers
concerning the terms and conditions of the offering of Class B Warrant purchased
hereunder, as well as the opportunity to obtain additional information necessary
to verify the accuracy of information furnished in connection with such offering
that the Company possesses or can acquire without unreasonable effort or
expense; provided, however, the Investor has relied upon the representations and
warranties of the Company set forth in this Agreement, and this Section 3.1(f)
shall not be interpreted to limit that reliance.
(g) It understands that the Class B Warrant and the Ordinary Shares
issuable upon conversion of the Series B Preferred Stock have not been
registered under the 1933 Act or any state securities laws, and may not be
transferred unless subsequently registered thereunder or pursuant to an
exemption from registration, and that a legend indicating such restrictions will
be placed on the certificates representing such Class B Warrants and Ordinary
Shares.
(h) There are no claims for investment banking fees, brokerage
commissions, finder's fees or similar compensation (other than professional fees
to lawyers, accountants and other consultants) in connection with the
transactions contemplated by this Agreement based on any arrangement or
agreement made by or on behalf of the Investor.
ARTICLE IV
COVENANTS OF THE COMPANY AND THE INVESTOR
-----------------------------------------
So long as the Investors shall be a holder of Class B Warrants or
Ordinary Shares obtained upon exercise thereof, the Company shall comply with
the following covenants:
Section 4.1 Insurance. The Company and its Subsidiary shall keep its
---------
insurable properties insured, upon reasonable business terms, by financially
sound and reputable insurers against liability and the perils of casualty, fire
and extended coverage in amounts of coverage at least equal to those customarily
maintained by companies of similar size in the same or similar business as the
Company. The Company and its Subsidiary shall also maintain with such insurers
insurance against other hazards and risks and liability to persons and property
to the extent and in the manner customary for companies of similar size engaged
in the same or similar business.
Section 4.2 Conduct of Business. The Company and its Subsidiary
-------------------
shall keep in full force and effect its corporate existence and use commercially
reasonable efforts to keep in full force and effect all intellectual property
rights and licenses material to its business. The Company and its Subsidiary
shall maintain all properties used or useful in the conduct of its business in
good repair, working order and condition, ordinary wear and tear excepted, as
necessary to permit such business to be properly and advantageously conducted.
Section 4.3 Payment of Taxes, Compliance with Laws, Etc. The Company
-------------------------------------------
and its Subsidiary shall pay and discharge all lawful taxes, assessments and
governmental charges or levies imposed upon it or its income or property before
the occurrence of any default, as well as
8
all lawful claims for labor, materials and supplies which, if not paid when due,
might become a lien or charge upon its property or any part thereof, provided,
however, that the Company and its Subsidiary shall not be required to pay and
discharge any such tax, assessment, charge, levy or claim so long as the
validity thereof is being contested by the Company and its Subsidiary in good
faith by appropriate proceedings and an adequate reserve therefor has been
established on their books. The Company and its Subsidiary shall comply with all
applicable laws and regulations in the conduct of its business, including,
without limitation, all applicable federal and state securities laws in
connection with the issuance of any securities.
Section 4.4 Proceeds. The proceeds from the issuance and sale to the
--------
Investor of the Class B Warrants will be used for the Company's general
corporate purposes.
Section 4.5 Registration Rights. The Company shall not grant to any
-------------------
person any rights superior to those of the Investor to have the Company's
capital stock registered for sale to the public in connection with the laws of
any jurisdiction or grant any such rights as would in any way limit the
Investor's registration rights, except that the Company may grant to other
investors registration rights no more favorable to such other investors than
those granted to the Investor in the Registration Rights Agreement.
ARTICLE V
CLOSING DELIVERIES
------------------
Contemporaneously herewith or prior hereto, the Company or the
Investor, as the case may be, is delivering or has previously delivered to the
other, each of the following documents or instruments:
Section 5.1 Registration Rights Agreement. The Company and the
-----------------------------
Investor shall have executed and delivered to the other the Registration Rights
Agreement.
Section 5.2 Purchase Price. The Investor shall have delivered to the
--------------
Company the purchase price required pursuant to Section 1.1 hereof, by certified
check or wire transfer of immediately available funds.
Section 5.3 Warrant Certificates. The Company shall have delivered
--------------------
to the Investor certificates representing the Class B Warrants constituting the
Investment, registered in the name of the Investor.
ARTICLE VI
POST-CLOSING DELIVERIES
-----------------------
Within ten business days after the Closing Date, the Investor shall
receive each of the following:
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Section 6.1 Secretary's Certificate. The Company shall have
-----------------------
delivered to the Investor a certificate of the Secretary of the Company, dated
as of the Closing Date, certifying (a) attached copies of the Company's
Memorandum of Association and Articles of Association as then in effect, (b) the
adoption by the Company's Board of Directors and shareholders (to the extent
required) of attached resolutions authorizing, among other things, the execution
and delivery of this Agreement, the Registration Rights Agreement and the Class
B Warrants and the consummation of the transactions contemplated hereby and
thereby, and (c) the incumbency and signatures of the officers of the Company
executing this Agreement and the other agreements and instruments contemplated
hereby.
Section 6.2 Opinion of Counsel to the Company. The Investor shall
---------------------------------
have received from ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, counsel to the Company, ▇▇▇▇▇▇
and Calder, Cayman Islands counsel to the Company opinions dated as of the
Closing Date, substantially in the forms, respectively, of Exhibit C and Exhibit
--------- --------
D hereto.
-
Failure to receive the documents contemplated in Sections 6.1 and 6.2 shall not
be deemed a breach of this Agreement.
ARTICLE VII
MISCELLANEOUS
-------------
Section 7.1 Amendment, Waivers and Consents. For the purposes of
-------------------------------
this Agreement and all agreements executed pursuant hereto, no course of dealing
between the Company and the Investor and no delay on the part of any party
hereto in exercising any rights hereunder or thereunder shall operate as a
waiver of the rights hereof or thereof. No provision hereof may be waived
except by written instrument signed by the party so waiving such provision. No
amendment of this Agreement shall be binding unless executed in writing by each
party to be bound thereby.
Section 7.2 Survival of Representations; Warranties and Covenants;
------------------------------------------------------
Assignability of Rights. All covenants, agreements, representations and
-----------------------
warranties of the Company made herein and to be performed prior to or at the
Closing and in the certificates, lists, exhibits, schedules or other written
information delivered or furnished to the Investor in connection herewith or
therewith (a) shall be deemed to have been relied upon by the Investor, and
shall survive the delivery of the Class B Warrants and (b) shall bind the
Company's and shall inure to the benefit of the Investor's successors and
assigns and to transferees of the Class B Warrants.
Section 7.3 Applicable Law. The validity and interpretation of this
--------------
Agreement, and the terms and conditions set forth herein, shall be governed by
and construed in accordance with the laws of the State of New York, without
giving effect to any provisions relating to conflicts of laws.
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Section 7.4 Consent to Jurisdiction and Service of Process. All
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judicial proceedings arising out of or relating to this Agreement may be brought
in any state or federal court of competent jurisdiction in the State of New
York, and by execution and delivery of this Agreement, the Company accepts the
nonexclusive jurisdiction of the aforesaid courts and waives any defense of
forum non conveniens. The Company designates and appoints CT Corporation
System, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, and such other persons as may
hereafter be selected by the Company irrevocably agreeing in writing to so
serve, as its agent to receive on its behalf service of all process in any such
proceedings in any such court, such service being hereby acknowledged by the
Company to be effective and binding service in every respect. A copy of any
such process so served shall be mailed by registered mail to the Company at its
address provided in Section 6.8 hereof; provided, however, that, unless
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otherwise provided by applicable law, any failure to mail such copy shall not
affect the validity of service of such process. If any agent appointed by the
Company refuses to accept service, the Company hereby agrees that service of
process sufficient for personal jurisdiction in any action against the Company
under this Agreement in the State of New York may be made by registered or
certified mail, return receipt requested, to the Company at its address provided
in Section 6.8 hereof, and the Company hereby acknowledges that such service
shall be effective and binding in every respect. Nothing herein shall affect
the right to serve process in any other manner permitted by law or shall limit
the right of the Investor to bring proceedings against the Company in the courts
of any other jurisdiction.
Section 7.5 Section Headings. The descriptive headings in this
----------------
Agreement have been inserted for convenience only and shall not be deemed to
limit or otherwise affect the construction or interpretation of any provision
thereof or hereof.
Section 7.6 Counterparts. This Agreement may be executed
------------
simultaneously in any number of counterparts, each of which when so executed and
delivered shall be taken to be an original, but such counterparts shall together
constitute but one and the same document.
Section 7.7 Notices and Demands. Any notice or demand which is
-------------------
required or provided to be given under this Agreement shall be deemed to have
been sufficiently given and received for all purposes when delivered by hand,
telecopy, or nationally recognized overnight courier, or five days after being
sent by certified or registered mail, postage and charges prepaid, return
receipt requested, to the following addresses:
If to the Company:
Scottish Life Holdings, Ltd.
▇▇▇▇▇▇ House
113 South Church Street
Georgetown, Grand Cayman
Cayman Islands, British West Indies
Attn: Chief Executive Officer
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
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If to the Investor:
or, at any other address designated in writing by such party in accordance with
the provisions of this Section 7.7.
Section 7.8 Severability. Whenever possible, each provision of this
------------
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be deemed
prohibited or invalid under such applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, and such
prohibition or invalidity shall not invalidate the remainder of such provision
or the other provisions of this Agreement.
Section 7.9 Integration. This Agreement, including the exhibits,
-----------
documents and instruments referred to herein or therein, constitutes the entire
agreement, and supersedes any other prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof.
Section 7.10 Publicity. The Company and the Investor shall have the
---------
right to review before issuance any press releases or any other public
statements sought to be made by the other with respect to the transactions
contemplated hereby.
Section 7.11 Restrictions on Transfer. The Class B Warrants shall
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not be transferable except upon the conditions specified therein, which
conditions are intended to insure compliance with the provisions of the 1933 Act
in respect of the transfer of any such securities.
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IN WITNESS WHEREOF, the parties have caused this Warrant Purchase
Agreement to be duly executed and delivered as of the day and year first above
written.
SCOTTISH LIFE HOLDINGS, LTD.
By:
------------------------------------
Name:
Title:
[PURCHASER]
By:
------------------------------------
Name:
Title:
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