VOTING AGREEMENT AND WAIVER
VOTING AGREEMENT AND WAIVER (this "Agreement"), dated as of November 26,
2006, is made by and among Scottish Re Group Limited, an exempted company
limited by shares organized and existing under the laws of the Cayman Islands
(the "Company"), MassMutual Capital Partners LLC, a Delaware limited liability
company ("MassMutual"), SRGL Acquisition, LLC, a Delaware limited liability
company ("Cerberus" and together with MassMutual, the "Investors") and the
shareholders of the Company listed on Schedule 1 attached hereto (each
individually a "Shareholder" and collectively the "Shareholders").
WITNESSETH:
WHEREAS, simultaneously with the execution of this Agreement the Company
has agreed to issue and sell, and the Investors have agreed to purchase,
pursuant to the Securities Purchase Agreement, dated as of November 26, 2006
(the "Securities Purchase Agreement"), by and among the Company and the
Investors, an aggregate of 1,000,000 convertible cumulative participating
preferred shares, par value $0.01 per share, of the Company (together with the
other transactions and terms contemplated by the Transaction Documents, the
"Transaction"); and
WHEREAS, each Shareholder owns the number of ordinary shares of the
Company, par value $0.01 per share (the "Ordinary Shares") set forth opposite
such Shareholder's name on Schedule 1 hereto (such Ordinary Shares, together
with any other shares, warrants or convertible notes of the Company Beneficially
Owned by such Shareholder as of the date hereof or acquired by such Shareholder
after the date hereof and during the term of this Agreement, including any
shares issued upon the exercise of any warrants or options, the conversion of
any convertible securities or otherwise, being collectively referred to herein
as the "Subject Shares" with respect to such Shareholder); and
WHEREAS, as inducement and a condition to entering into the Securities
Purchase Agreement, the Investors have required the Shareholders to agree, and
the Shareholders have agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises,
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound hereby, agree as follows:
Section 1. Certain Definitions. In addition to the terms defined elsewhere
herein, capitalized terms used and not defined herein shall have the respective
meanings ascribed to them in the Securities Purchase Agreement. For purposes of
this Agreement:
(a) "Beneficially Own" or "Beneficial Ownership" with respect to any
securities means having "beneficial ownership" of such securities as determined
pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). Without duplicative counting of the same securities by the
same holder, securities Beneficially Owned by a person include securities
Beneficially Owned by all other persons with whom such person would constitute a
"group" within the meaning of Section 13(d) of the Exchange Act with respect to
the securities of the same issuer.
Section 2. Representations and Warranties of Shareholder. Each Shareholder
represents and warrants severally and not jointly and severally, to the
Investors as follows:
(a) Ownership of Shares. Such Shareholder is a record owner and Beneficial
Owner of the Subject Shares set forth opposite such Shareholder's name on
Schedule 1. On the date hereof, the Subject Shares constitute all of the shares
of the Ordinary Shares owned of record or Beneficially Owned by such Shareholder
(including the options, convertible notes, purchase rights and warrants set
forth opposite such Shareholders name on Schedule 1). On the date hereof other
than as subject to the Shareholders' Agreement (as defined below), such
Shareholder does not own or have any rights to (i) any Ordinary Shares or other
voting securities or equity interests of the Company, (ii) any securities of the
Company convertible into or exchangeable or exercisable for Ordinary Shares or
other voting securities or equity interests of the Company or (iii) options,
warrants, other rights, convertible or exchangeable securities, "phantom" unit
rights, share appreciation rights or share-based performance units. There are no
outstanding options or other rights to acquire from such Shareholder or
obligations of such Shareholder to sell or to acquire, any Ordinary Shares. With
respect to the Ordinary Shares held by it, each Shareholder has sole voting
power and sole power to issue instructions with respect to the matters set forth
in Sections 4 and 5 hereof, sole power of disposition, sole power of conversion
and sole power to agree to all of the matters set forth in this Agreement, in
each case with respect to all of the Subject Shares with no limitations,
qualifications or restrictions on such rights, subject to applicable securities
Laws and the terms of this Agreement.
(b) Power; Binding Agreement. Such Shareholder has the legal capacity,
power and authority to enter into and perform all of such Shareholder's
obligations under this Agreement. This Agreement has been duly and validly
executed and delivered and, if such Shareholder is not a natural person,
authorized by such Shareholder and constitutes a valid and binding agreement of
such Shareholder, enforceable against such Shareholder in accordance with its
terms except that (i) such enforcement may be subject to applicable bankruptcy,
insolvency or other similar Laws, now or hereafter in effect, affecting
creditors' rights generally, and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
(c) No Conflicts. Except for any filings, permits, authorizations,
consents, and approvals necessary on the part of the Investors or the Company to
exercise the rights provided to the Investors hereunder or to consummate the
transactions contemplated hereby, no filing with, and no permit, authorization,
consent or approval of, any Governmental Entity is necessary for the execution
and delivery of this Agreement by such Shareholder and the consummation by such
Shareholder of the transactions contemplated hereby, and none of the execution
and delivery of this Agreement by such Shareholder, the consummation by such
Shareholder of the transactions contemplated hereby or compliance by such
Shareholder with any of the provisions hereof shall (i) if a particular
Shareholder is not a natural person, conflict with or result in any breach of
any organizational documents applicable to such Shareholder, (ii) result in a
violation or breach of, or constitute (with or without notice or lapse of time
or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the terms,
conditions or provisions of any note, loan agreement, bond, mortgage, indenture,
license, or material contract, commitment, arrangement, understanding, agreement
or
other instrument or obligation of any kind to which such Shareholder is a party
or by which such Shareholder or any of its properties or assets may be bound, or
(iii) violate any order, writ, injunction, decree, judgment, order, statute,
rule or regulation applicable to such Shareholder or the Subject Shares, except
for any of the foregoing solely with respect to clause (ii) above, as would not
reasonably be expected, individually or in the aggregate, to materially impair,
impede or delay the ability of such Shareholder to perform its obligations
hereunder.
(d) No Encumbrance. Except as permitted by this Agreement, the Subject
Shares are now, and, at all times during the term hereof, will be, held by such
Shareholder free and clear of all Liens, except for any such Liens arising
hereunder.
(e) No Finder's Fees. No broker, investment banker, financial advisor or
other person is entitled to any broker's, finder's, financial adviser's or other
similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of such Shareholder.
(f) Reliance. Each Shareholder understands and acknowledges that each
Investor is entering into the Securities Purchase Agreement in reliance upon
such Shareholder's execution and delivery of this Agreement.
Section 3. Disclosure. Each Shareholder hereby agrees to permit the Company
to publish and disclose in the Disclosure Documents (including all documents and
schedules filed with the SEC), and any press release or other disclosure
document which the Company, in its sole discretion, determines to be required by
applicable Law or necessary in connection with the Transaction and any
transactions related thereto, such Shareholder's identity and ownership of the
Ordinary Shares and the nature of such Shareholder's commitments, arrangements
and understandings under this Agreement provided that the form of any such
disclosure shall be subject to such Shareholder's prior review and written
consent, not to be unreasonably withheld, delayed or conditioned.
Section 4. Certain Restrictions; Waiver and Termination.
(a) No Solicitation. Each Shareholder shall not (whether directly or
indirectly through affiliates, advisors, agents or other intermediaries), and
each Shareholder shall direct its and its Subsidiaries' respective officers,
directors, affiliates, employees, members, partners, shareholders, advisors,
representatives or other agents retained by or otherwise acting on behalf of
such Shareholder or its Subsidiaries and affiliates (collectively,
"Representatives", provided that such term shall not be deemed to include the
Company or apply to any Representatives of the Company, acting in their capacity
as such on behalf of the Company) not to, directly or indirectly, (i) solicit,
initiate, accept, seek, encourage, induce or facilitate (including by way of
furnishing non-public information) any inquiries or the making or submission of
any proposal that constitutes or could reasonably be expected to lead to an
Acquisition Proposal, or cooperate in any way with any inquiry, proposal or
offer from any other person relating to, that has the purpose of, or that
constitutes or could reasonably be expected to lead to an Acquisition Proposal,
(ii) continue or participate or engage in discussions or negotiations with, or
disclose any information or data relating to the Company or its Subsidiaries or
afford access to the properties, books or records of the Company or its
Subsidiaries to, or otherwise cooperate with,
any person that has made an Acquisition Proposal or to any person that has
disclosed to the Company that it is considering making an Acquisition Proposal,
(iii) accept an Acquisition Proposal or enter into any agreement or agreement in
principle or letter of intent, providing for or relating to an Acquisition
Proposal or enter into any agreement or agreement in principle or letter of
intent requiring the Company to abandon, terminate or fail to consummate the
transactions contemplated by the Securities Purchase Agreement, or (iv) grant
any waiver or release under any standstill, confidentiality or similar agreement
entered into by the Company, its Subsidiaries or any of their respective
Representatives; provided that each Shareholder in such Shareholder's capacity
as a director of the Company, if applicable, shall be permitted to take any
action expressly permitted under the Securities Purchase Agreement, solely in
its capacity as a director of the Company. Each Shareholder shall and shall
cause its Representatives to (i) immediately cease and cause to be terminated
any existing activities, discussions or negotiations with any persons or their
representatives conducted prior to the date of this Agreement with respect to
any Acquisition Proposal and will request the prompt return or destruction of
any confidential information previously furnished to such persons in connection
therewith, and (ii) promptly inform its Representatives of the obligations
undertaken in this Section 4(a). Without limiting the foregoing, any violation
of the restrictions set forth in this Section 4(a) by any Representative of a
Shareholder or any of its Subsidiaries, whether or not such person is purporting
to act on behalf of such Shareholder or any of its Subsidiaries, shall be deemed
to be a breach of this Section 4(a) by such Shareholder. Each Shareholder will
as promptly as practicable (and in any event within 24 hours) advise the
Investors of any request for information with respect to any Acquisition
Proposal or of any inquiry, proposal, discussions or negotiation with respect to
any Acquisition Proposal, and the material terms and conditions of such request,
Acquisition Proposal, inquiry, proposal, discussion or negotiation. For purposes
of this Agreement, each Investor is not deemed to be an Affiliate of the
Shareholders. So long as no Shareholder (or its respective Representative) is in
breach of this Agreement and subject to such Shareholder's continued compliance
with this Agreement, nothing contained in this Agreement shall prevent a
Shareholder or its Representatives from negotiating the terms of any agreement
(including any shareholders or similar agreement), or otherwise participating in
negotiations together with the Company, in connection with an Acquisition
Proposal in the event that the Company is pursuing negotiations or discussions
with the Person making such Acquisition Proposal in compliance with Section
5.2(b) of the Securities Purchase Agreement; provided that, such negotiations by
a Shareholder or its Representatives shall not in and of themselves be deemed to
constitute breach of this Agreement by such Shareholder or its Representatives
for the purposes of this Section 4(a) provided that such Shareholder and its
Representatives are otherwise in compliance with this Agreement.
(b) Certain Prohibited Transfers and Actions. Prior to the termination of
this Agreement, each Shareholder agrees not to, directly or indirectly:
(i) other than to an affiliate who has agreed in writing to be bound
by the terms of this Agreement with respect to the transferred Subject
Shares, transfer, assign, sell, gift-over, pledge, encumber or otherwise
dispose of any or all of the Subject Shares or any right or interest
therein, or consent to or enter into any contract, option or other
agreement, arrangement or understanding with respect to any of the
foregoing;
(ii) grant any proxy, grant any power of attorney, deposit any of the
Subject Shares into a voting trust or enter into a voting agreement or
arrangement with respect to the Subject Shares except as provided in this
Agreement; or
(iii) take any other action that would make any representation or
warranty of such Shareholder contained herein untrue or incorrect or have
the effect of preventing or disabling such Shareholder from performing its
obligations under this Agreement.
(c) Waiver and Termination. Each Shareholder hereby agrees to waive (and
shall not seek to enforce) any and all rights, indemnities, privileges, powers
or preferences that arise or could reasonably be expected to arise under that
certain Shareholders' Agreement (the "Shareholders' "Agreement"), dated as of
December 31, 2004, by Cypress Merchant B Partners II (Cayman) L.P., Cypress
Merchant Banking II-A C.V., Cypress Side-By-Side (Cayman) L.P., 55th Street
Partners II (Cayman) L.P. (collectively, the "Cypress Investors") and the
Company as a result of the execution of the Transaction Documents and the
consummation of the transactions contemplated thereby, or which could reasonably
be expected, to impede, interfere with, delay, postpone or adversely affect the
transactions contemplated by this Agreement or the Securities Purchase
Agreement, including without limitation, any and all rights granted pursuant to
Article IV of the Shareholders Agreement. The Shareholders shall enter into (i)
one or more termination agreements, each in form and substance satisfactory to
the Investors in their sole discretion, and deliver to the Investors (prior to
Closing) copies of such executed termination agreements, evidencing the
termination, effective immediately prior to the Closing, by all parties thereto
of, the Shareholders Agreement, Securities Purchase Agreement, dated as of
October 17, 2004, by and among the Company and the Cypress Investors and any
other agreements with the Company that grant to the Shareholders or the Cypress
Investors, as the case may be, any rights, indemnities, preferences, powers or
privileges with respect to, or in connection with, the Company or its
Subsidiaries, the Subject Shares or any other shares of the Company and (ii) at
or prior to the Closing, the Registration Rights and Shareholders Agreement in
the form attached hereto as Exhibit A.
Section 5. Stop Transfer; Legend.
(a) Each Shareholder agrees with, and covenants to, the Investors that such
Shareholder will not request that the Company register the transfer (book-entry
or otherwise) of any certificate or uncertificated interest representing any of
the Subject Shares, unless such transfer is made in compliance with this
Agreement.
(b) In the event of a share dividend or distribution, or any change in the
Ordinary Shares by reason of any share dividend, split-up, recapitalization,
combination, exchange of share or the like other than pursuant to the
Transaction, the term "Subject Shares" will be deemed to refer to and include
the Ordinary Shares as well as all such share dividends and distributions and
any shares into which or for which any or all of the Subject Shares may be
changed or exchanged and appropriate adjustments shall be deemed made to the
terms and provisions of this Agreement.
(c) In furtherance of this Agreement, concurrently herewith, each
Shareholder shall, and hereby does authorize the Company to, notify the
Company's transfer agent that there is a stop transfer order with respect to all
of the Subject Shares (and that this Agreement places limits on the voting and
transfer of such shares).
(d) In the event that a Shareholder intends to undertake a transfer,
assignment, sale, gift-over, pledge or other disposition of any of the Subject
Shares as permitted by Section 4(b), such Shareholder shall provide notice
thereof to the Company and shall authorize and instruct the Company to instruct
its transfer agent to (i) lift the stop transfer order in order to effect such
transaction and (ii) re-enter the stop transfer order upon completion of such
transaction, and the Company agrees that it will comply with such instructions.
(e) For the avoidance of doubt, the obligations contained in this Section 5
and any restrictions or limitations imposed thereby, shall terminate and be of
no further force or effect at the earlier of (i) termination of this Agreement
and (ii) consummation of the transactions contemplated by the Securities
Purchase Agreement.
Section 6. Voting of the Ordinary Shares. Each Shareholder hereby agrees
that, during the period commencing on the date hereof and continuing until the
first to occur of (a) the Closing or (b) termination of this Agreement in
accordance with its terms, at any meeting (whether annual or special and whether
or not an adjourned or postponed meeting) of the holders of Ordinary Shares,
however called, or in connection with any written consent of the holders of
Ordinary Shares, such Shareholder shall appear at the meeting or otherwise cause
the Subject Shares to be counted as present thereat for purposes of establishing
a quorum and vote or consent (or cause to be voted or consented) all of the
Subject Shares, in each case to the fullest extent the Subject Shares are
entitled to vote thereon or consent thereto:
(i) in favor of transactions contemplated by the Transaction
Documents, including the approval by the Members of the matters set forth
in Section 2.1(a)(i) of the Securities Purchase Agreement to the effect as
set forth in Section 3.19 thereof and any actions required in furtherance
thereof and hereof; and
(ii) except as otherwise agreed to in writing in advance by the
Investors in their sole discretion, against any of the following (other
than the Transaction and the transactions contemplated by this Agreement
and the Securities Purchase Agreement): (A) any Acquisition Proposal; (B)
any action or agreement that would, to the knowledge of such Shareholder,
result in a breach in any material respect of any covenant, representation
or warranty or any obligation or agreement of the Company under the
Securities Purchase Agreement or such Shareholder under this Agreement, and
(C) any action which is intended, or which could reasonably be expected, to
impede, interfere with, delay, postpone or materially adversely affect the
transactions contemplated by this Agreement or the Securities Purchase
Agreement.
Section 7. Irrevocable Proxy.
(a) Each Shareholder hereby irrevocably grants to, and appoints,
Christopher Brody and Larry N. Port, or either of them, in their respective
capacities as officers of each Investor, as applicable, and any individual who
shall hereafter succeed to any such office of such Investor, and each of them
individually, such Shareholder's proxy and attorney-in-fact (with full power of
substitution and resubstitution), for and in the name, place and stead of such
Shareholder, to vote or cause to be voted the Subject Shares at any meeting of
the members or shareholders of the Company or at any adjournment or postponement
thereof during the term of this Agreement:
(i) in favor of transactions contemplated by the Transaction
Documents, including the approval by the Members of the matters set forth
in Section 2.1(a)(i) of the Securities Purchase Agreement to the effect as
set forth in Section 3.19 thereof and any actions required in furtherance
thereof and hereof; and
(ii) except as otherwise agreed to in writing in advance by the
Investors in their sole discretion, against any of the following (other
than the Transaction and the transactions contemplated by this Agreement
and the Securities Purchase Agreement): (A) any Acquisition Proposal; (B)
any action or agreement that would, to the knowledge of such Shareholder,
result in a breach in any material respect of any covenant, representation
or warranty or any obligation or agreement of the Company under the
Securities Purchase Agreement or such Shareholder under this Agreement, and
(C) any action which is intended, or which could reasonably be expected, to
impede, interfere with, delay, postpone or materially adversely affect the
transactions contemplated by this Agreement or the Securities Purchase
Agreement.
(b) Each Shareholder represents that any proxies heretofore given in
respect of the Subject Shares are not irrevocable, and that such proxies either
have been or are hereby revoked.
(c) Each Shareholder hereby affirms that the irrevocable proxy set forth in
this Section 7 is given in connection with the execution of the Securities
Purchase Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of such Shareholder under this Agreement. Except in
the event of a termination of this Agreement in accordance with Section 10
(whereupon this irrevocable proxy shall be automatically revoked), each
Shareholder hereby further affirms that the irrevocable proxy is coupled with an
interest and may not be revoked, except as by amendment or modification in
accordance with Section 12(c) hereof. Each Shareholder hereby ratifies and
confirms all that such irrevocable proxy may lawfully do or cause to be done by
virtue hereof. Such irrevocable proxy and power of attorney is executed and
intended to be irrevocable in accordance with the Powers of Attorney Law (1996
Revision) of the Cayman Islands. The power and authority hereby conferred shall
not be terminated by any act of such Shareholder or by operation of law, by the
dissolution of the Shareholder (if such Shareholder is other than a natural
person), by lack of appropriate power or authority, or by the occurrence of any
other event or events and shall be binding upon all his
representatives, executors, successors and/or assigns. If after the execution of
this Agreement a Shareholder shall dissolve (if such Shareholder is other than a
natural person), cease to have appropriate power or authority, or if any other
such event or events shall occur, the Investors are nevertheless authorized and
directed to vote the Subject Shares in accordance with the terms of this
Agreement as if such dissolution, if applicable, lack of appropriate power or
authority or other event or events had not occurred and regardless of notice
thereof. Notwithstanding anything to the contrary contained in this Agreement,
the irrevocable proxy is subject to, and shall only become effective upon, the
receipt by the Investors of all necessary regulatory approvals and consents, if
any, required under applicable law to exercise the voting powers granted by such
proxy.
Section 8. Fiduciary Duties. Each Shareholder is signing this Agreement
solely in such Shareholder's capacity as an owner of his or her respective
Subject Shares, and nothing herein shall limit, prohibit, prevent or preclude
such individual Shareholder from taking or not taking any action in his or her
capacity as an officer or director of the Company, to the extent permitted by
the Securities Purchase Agreement.
Section 9. Reasonable Best Efforts. Subject to the terms and conditions of
this Agreement, each of the parties hereto agrees to use its reasonable best
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the Transaction. Each party shall
promptly consult with the other and provide any necessary information and
material with respect to all filings made by such party with any Governmental
Entity in connection with this Agreement and the Securities Purchase Agreement
and the transactions contemplated hereby and thereby.
Section 10. Termination. This Agreement shall terminate on the earliest of
(a) termination of the Securities Purchase Agreement in accordance with its
terms, (b) the written agreement of the parties hereto to terminate this
Agreement, or (c) the Closing.
Section 11. No Ownership Interest. Nothing contained in this Agreement
shall be deemed to vest in the Investors any direct or indirect ownership or
incidence of ownership of or with respect to any Subject Shares. All rights,
ownership and economic benefits of and relating to the Subject Shares shall
remain vested in and belong to the applicable Shareholder, and the Investors
shall have no authority to manage, direct, superintend, restrict, regulate,
govern, or administer any of the policies or operations of the Company or
exercise any power or authority to direct any Shareholder in the voting of any
of the Subject Shares, except as otherwise expressly provided herein.
Section 12. Miscellaneous.
(a) Entire Agreement. This Agreement (including the documents and
instruments referred to herein, to the extent referenced herein) constitutes the
entire agreement and supersedes all other prior agreements and understandings,
both written and oral, among the parties, or any of them, with respect to the
subject matter hereof.
(b) Successors and Assigns. This Agreement shall not be assigned by
operation of Law or otherwise without the prior written consent of the other
parties hereto. This Agreement shall be binding upon, inure to the benefit of
and be enforceable by each party and such party's respective heirs,
beneficiaries, executors, representatives and permitted assigns.
(c) Amendment and Modification. This Agreement may not be amended, altered,
supplemented or otherwise modified or terminated (other than a termination under
Section 10(a) or Section 10(c) of this Agreement) except upon the execution and
delivery of a written agreement executed by the parties hereto.
(d) Notices. All notices, requests, claims and demands and other
communications hereunder shall be in writing and shall be deemed duly delivered
(i) four Business Days after being sent by registered or certified mail, return
receipt requested, postage prepaid, or (ii) one Business Day after being sent
for next business day delivery, fees prepaid, via a reputable nationwide
overnight courier service, in each case to the intended recipient as set forth
below:
If to Cerberus, to:
c/o Cerberus Capital Management, L.P.
299 Park Avenue
New York, NY 10171
Facsimile: (212) 891-1540
Attention: Christopher Brody
with a copy to:
Schulte Roth & Zabel LLP
919 Third Avenue
New York, New York 10022
Facsimile: (212) 593-5955
Attention: Marc Weingarten, Esq.
If to MassMutual, to:
c/o MassMutual Financial Group
1295 State Street
Springfield, MA 01111
Facsimile: (413) 744-6350
Attention: Larry N. Port
with a copy to:
Ropes & Gray LLP
45 Rockefeller Plaza
New York, NY 10111
Facsimile: (212) 841-5725
Attention: Othon A. Prounis, Esq.
If to the Company, to:
Scottish Re Group Limited
Crown House, Second Floor
4 Par-la-Ville Road
Hamilton, HM 08, Bermuda
Facsimile: (441) 295-7576
Attention: Paul Goldean
with a copy to:
LeBoeuf, Lamb, Greene & MacRae LLP
125 West 55th Street
New York, NY 10019
Facsimile: (212) 424-8500
Attention: Stephen G. Rooney, Esq.
If to Shareholder, to the address set forth opposite such Shareholder's name on
Schedule 1, with a copy to:
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017
Facsimile: (212) 455-2502
Attention: Sean D. Rodgers, Esq.
Any party may give any notice or other communication hereunder using any
other means (including personal delivery, messenger service, facsimile or
ordinary mail), but no such notice or other communication shall be deemed to
have been duly given unless and until it is actually received by the party for
whom it is intended. Any party may change the address to which notices and other
communications hereunder are to be delivered by giving the other parties to this
Agreement notice in the manner herein set forth.
(e) Severability. Any term or provision of this Agreement which is held to
be invalid, illegal or unenforceable in any respect in any jurisdiction shall,
as to that jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
(f) Specific Performance. The parties acknowledge that money damages would
not be an adequate remedy at Law if any party fails to perform in any material
respect any of its obligations hereunder and accordingly agree that each party,
in addition to any other remedy to which it may be entitled at Law or in equity
shall be entitled to seek to compel specific performance of the obligations of
any other party under this Agreement, without the posting of any bond, in
accordance with the terms and conditions of this Agreement in any court of the
United States or any State thereof having jurisdiction, and if any action should
be brought in equity to enforce any of the provisions of this Agreement, none of
the parties hereto shall raise the defense that there is an adequate remedy at
Law. No remedy shall be exclusive of any other remedy. All available remedies
shall be cumulative.
(g) No Waiver. The failure of any party hereto to exercise any right, power
or remedy provided under this Agreement or otherwise available in respect hereof
at Law or in equity, or to insist upon compliance by any other party hereto with
its obligations hereunder, and any custom or practice of the parties at variance
with the terms hereof, will not constitute a waiver by such party of its right
to exercise any such or other right, power or remedy or to demand such
compliance.
(h) No Third Party Beneficiaries. This Agreement is not intended to confer
upon any Person other than the parties hereto any rights or remedies hereunder.
(i) Governing Law. This Agreement shall be governed by and construed in
accordance with the internal 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, except that the
laws of the Cayman Islands shall apply to the extent required in connection with
the execution and irrevocability of the proxy and power of attorney given under
Section 7 hereof, the meeting of shareholders or members of the Company, and the
exercise of voting rights thereat.
(j) Descriptive Heading. The descriptive headings used herein are for
reference purposes only and will not affect in any way the meaning or
interpretation of this Agreement.
(k) Expenses. All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expenses.
(l) Further Assurances. From time to time, at any other party's request and
without further consideration (but without any obligation to incur any expense),
each party hereto shall execute and deliver such additional documents and take
all such further lawful action as may be necessary or desirable to consummate
and make effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement.
(m) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
(n) Submission to Jurisdiction. Each party hereby irrevocably and
unconditionally agrees that any action, suit or proceeding, at Law or equity,
arising out of or relating to this Agreement or any agreements or transactions
contemplated hereby (an "Action") shall only be brought in any United States
federal court or any New York state court, in either case, sitting in the City
of New York, and hereby irrevocably and unconditionally expressly submits to the
personal jurisdiction and venue of such courts for the purposes thereof and
hereby irrevocably and unconditionally waives (by way of motion, as a defense or
otherwise) any and all jurisdictional, venue and convenience objections or
defenses that such party may have in such Action. Each party hereby irrevocably
and unconditionally consents to the service of process of any of the
aforementioned courts. Nothing herein contained shall be deemed to affect the
right of any party to serve process in any manner permitted by Law or commence
legal proceedings or otherwise proceed against any other party in any other
jurisdiction to enforce judgments obtained in any action, suit or proceeding
brought pursuant to this Section 12(n).
[Remainder of this page intentionally left blank. Signature page follows.]
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as a deed as of the day and year first written above.
Witness SCOTTISH RE GROUP LIMITED
/s/ Paul Goldean
- --------------------------- ------------------------------------------
By: Paul Goldean
- --------------------------- ------------------------------------------
Its: President and Chief Executive Officer
- --------------------------- ------------------------------------------
- --------------------------- ------------------------------------------
Witness SRGL ACQUISITION, LLC
By: Cerberus Capital Management, L.P.,
as Managing Member
/s/ Mark Neporent
- --------------------------- ------------------------------------------
By: Mark Neporent
Its: Chief Operating Officer and
Managing Director
Witness MASSMUTUAL
/s/ Larry Port
- --------------------------- ------------------------------------------
By: Larry Port
Its: Managing Director
Witness SHAREHOLDERS:
CYPRESS MERCHANT B PARTNERS II (CAYMAN) L.P.
/s/ Jeffrey P. Hughes
- --------------------------- ------------------------------------------
By: Jeffrey P. Hughes
Its: Director
CYPRESS MERCHANT B II-A C.V.
/s/ Jeffrey P. Hughes
- --------------------------- ------------------------------------------
By: Jeffrey P. Hughes
Its: Director
CYPRESS SIDE-BY-SIDE (CAYMAN) L.P.
/s/ Jeffrey P. Hughes
- --------------------------- ------------------------------------------
By: Jeffrey P. Hughes
Its: Director
55TH STREET PARTNERS II (CAYMAN) L.P.
- --------------------------- ------------------------------------------
/s/ Jeffrey P. Hughes
By: Jeffrey P. Hughes
Its: Director
SCHEDULE 1
- ------------------ ----------- -------- --------- ---------- ------------------
Shareholders Ordinary Options Warrants Purchase Address
Shares Rights
- ------------------ ----------- -------- --------- ---------- ------------------
CYPRESS MERCHANT B 8,850,208 0 0 0 c/o The Cypress
MERCHANT B Group L.L.C.
PARTNERS II 65 East 55th
(CAYMAN) L.P. Street, 28th
Floor
New York, New
York 10022
- ------------------ ----------- -------- --------- ---------- ------------------
CYPRESS 376,236 0 0 0 c/o The Cypress
MERCHANT B II- Group L.L.C.
A C.V. 65 East 55th
Street, 28th
Floor
New York, New
York 10022
- ------------------ ----------- -------- --------- ---------- ------------------
CYPRESS SIDE- 18,661 0 0 0 c/o The Cypress
BY-SIDE Group L.L.C.
(CAYMAN) L.P. 65 East 55th
Street, 28th
Floor
New York, New
York 10022
- ------------------ ----------- -------- --------- ---------- ------------------
55TH STREET 85,405 0 0 0 c/o The Cypress
PARTNERS II Group L.L.C.
(CAYMAN) L.P. 65 East 55th
Street, 28th
Floor
New York, New
York 10022
- ------------------ ----------- -------- --------- ---------- ------------------
EXHIBIT A
FORM OF REGISTRATION RIGHTS AND SHAREHOLDERS AGREEMENT