Exhibit 10.22
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FINANCIAL SECURITY ASSURANCE HOLDINGS LTD.
and
EXEL LIMITED
Registration Rights Agreement
Dated as of November 3, 1998
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TABLE OF CONTENTS
PAGE
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SECTION 1 DEFINITIONS..................................................... 1
SECTION 2 DEMAND REGISTRATION............................................. 1
SECTION 3 PIGGYBACK REGISTRATION.......................................... 3
SECTION 4 HOLD-BACK AGREEMENTS; PRESS RELEASES............................ 4
SECTION 5 REGISTRATION PROCEDURES......................................... 4
SECTION 6 REGISTRATION EXPENSES........................................... 8
SECTION 7 INDEMNIFICATION................................................. 9
a. Indemnification by the Company............................. 9
b. Indemnification by EXEL.................................... 10
c. Conduct of Indemnification Proceedings..................... 10
d. Contribution............................................... 11
SECTION 8 PARTICIPATION IN UNDERWRITTEN REGISTRATIONS..................... 11
SECTION 9 TERMINATION..................................................... 12
SECTION 10 AMENDMENTS AND WAIVERS.......................................... 12
SECTION 11 SECRETARY TO RETAIN COPY........................................ 12
SECTION 12 CHOICE OF LAW AND FORUM AND SERVICE OF PROCESS.................. 12
SECTION 13 ARBITRATION..................................................... 12
SECTION 14 ASSIGNMENT...................................................... 14
SECTION 15 NOTICES......................................................... 14
SECTION 16 NO THIRD-PARTY BENEFICIARIES.................................... 15
SECTION 17 ENTIRE AGREEMENT................................................ 15
SECTION 18 HEADINGS........................................................ 15
SECTION 19 COUNTERPARTS.................................................... 15
SECTION 20 SEVERABILITY.................................................... 15
EXHIBIT A DEFINITIONS.....................................................A-1
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of November 3, 1998 (this
"Agreement"), among FINANCIAL SECURITY ASSURANCE HOLDINGS LTD., a New York
corporation (the "Company"), and EXEL LIMITED, a Cayman Islands corporation
("EXEL").
WHEREAS, the Company intends to sell to EXEL certain unregistered shares
of common stock ("Common Stock") of the Company and may from time to time issue
to EXEL additional shares of Common Stock pursuant to the Shareholders
Agreement, dated as of the date hereof, among the Company, EXEL and Financial
Security Assurance International Ltd. ("FSAI") (as amended from time to time,
the "FSAI Shareholders Agreement"); and
WHEREAS, the Company intends to provide to EXEL certain registration
rights in respect of the Common Stock;
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
Section 1. Definitions. Capitalized terms used herein shall have the
meanings provided in Exhibit A hereto, unless the context otherwise requires.
Section 2. Demand Registration.
(a) Except as provided herein and subject to Section 2(c)(ii)
hereof, EXEL may, at any time make a written request to the Company for
registration under the Securities Act of all or part of the Common Stock
it then owns (a "Demand Registration"). Any such request by EXEL shall
specify the aggregate amount of Common Stock to be registered and shall
also specify the intended method of disposition thereof. Within ten
Business Days after receipt of such registration request, the Company
shall commence the preparation of the registration of the Common Stock.
The Company shall include in such registration all Common Stock specified
in the written request; provided, however, that the Company may, upon
written notice to EXEL, delay the effectuation of such Demand Registration
for a reasonable period of time, but not more than 90 days after receipt
of the request for such Demand Registration, (i) as is necessary to
prepare audited financial statements of the company for its most recently
completed fiscal year or other audited financial statements reasonably
required in the Registration Statement, or (ii) if the Company would be
required to divulge in such Registration Statement the existence of any
fact relating to a proposed acquisition, financing or other material
corporate development not otherwise required to be disclosed and
management of the Company shall have in good faith determined that such
disclosure would be materially adverse to the Company. Such notice of
delay shall explain, in reasonable detail, the reasons for such delay. If
the Company shall so delay the effectuation of the Demand Registration,
EXEL may, within 30 days after receipt of the notice of delay, notify the
Company that it is withdrawing its request for registration and such
Demand
Registration shall be deemed to be withdrawn and such request shall be
deemed not to have been exercised for purposes hereof.
(b) Except as provided by Section 2(d) below and subject to the
hold-back restrictions set forth in Section 4 hereof, EXEL shall be
entitled to three Demand Registrations; provided, however, that (i) only
one Demand Registration may be declared by EXEL in any six-month period
and (ii) if the preferred shares of FSAI owned by the Company are called
by Company pursuant to the Bye-laws of FSAI and EXEL has otherwise
exhausted its right to Demand Registrations hereunder, EXEL shall have the
right to one additional Demand Registration.
(c) (i) The offering of Common Stock pursuant to such Demand
Registration shall be in the form of an Underwritten Offering if requested
by EXEL. If the managing underwriter or underwriters unanimously determine
in good faith that the total amount of Common Stock proposed to be
included in such offering is such as to materially adversely affect the
success of such offering, then the amount of Common Stock shall be reduced
to the extent necessary to reduce the total amount of Common Stock to be
included in such offering to the amount that, in the reasonable opinion of
such managing underwriter or underwriters, can be sold without materially
adversely affecting the success of such offering.
(ii) Notwithstanding anything contained in this Section 2, the
Company shall not be obligated to comply with a Demand Registration if
such registration, in the reasonable judgment of the Company after
consultation with a securities rating agency then rating the Company or
its Subsidiaries or a regulatory authority (having jurisdiction over the
Company or its Subsidiaries), as the case may be, such registration would
(x) impair the debt or claims-paying ability or financial-strength rating
of the Company or its Subsidiaries (including resulting in such rating
being placed on credit watch or under formal review) or (y) materially
increase any capital charge or capital cost of the Company or its
Subsidiaries, or if such regulatory authority otherwise objects to such
offering.
(d) If (i) more than one-third of EXEL's Common Stock sought to be
registered in any Demand Registration is not included in such registration
pursuant to Section 2(c)(i), (ii) a Demand Registration is delayed
pursuant to Section 2(a) hereof and is not effective or otherwise is not
effective within 180 days after EXEL's demand for registration, (iii) if
such registration, after it has become effective, is interfered with by
any stop order, injunction or other order or requirement of the SEC or
other governmental agency or court by reason of an act or omission by the
Company or any of its Subsidiaries or (iv) the conditions to closing
specified in the purchase agreement or underwriting agreement entered into
in connection with such registration are not satisfied because of an act
or omission by the Company or any of its Subsidiaries (other than by
reason of facts or circumstances not within the control of the Company or
any such Subsidiary), then in each such case such Demand Registration
shall not be counted for purposes of calculating the number of demand
rights exercised by EXEL in Section 2(b).
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(e) Nothing in this Section 2 or in Section 3 hereof shall create
any right in EXEL to require the Company to register any securities other
than Common Stock under the Securities Act.
Section 3. Piggyback Registration.
(a) If the Company at any time proposes to register shares of Common
Stock on its own behalf or on behalf of any holder of Common Stock under
the Securities Act (other than a registration effected solely to implement
an employee benefit plan, a transaction to which Rule 145 promulgated
under the Securities Act is applicable, or a transaction eligible to be
registered on Form S-4 or any successor form), the Company shall give
written notice each such time to EXEL of its intention to do so (which
notice shall include the anticipated filing date of the Registration
Statement and the number of shares proposed to be included in the
Registration Statement). Upon the written request of EXEL given within 5
Business Days after receipt of any such notice by EXEL (stating the number
of shares of Common Stock to be disposed of by EXEL and the intended
method of disposition), the Company shall include the shares of Common
Stock intended to be disposed of in a registration statement under the
Securities Act so as to permit disposition (in accordance with the
reasonable methods in said request) by EXEL of the shares so registered (a
"Piggyback Registration").
(b) Notwithstanding any provision of this Section 3, if the
registration of which the Company gives notice pursuant to Section 3(a) is
for an Underwritten Offering and the managing underwriter or underwriters
determine in good faith that the total number of shares of Common Stock
proposed to be included in such offering is such as to materially
adversely affect the success of such offering, then the priority for
inclusion of Common Stock shall be as follows: (1) if such registration is
or includes a primary registration, (x) first, securities of the Company
proposed to be included in such registration and (y) second, shares of
Common Stock requested to be included in such registration by EXEL and the
other secondary sellers pro-rata in accordance with Section 2(c)(i) or (2)
if such Registration is exclusively a secondary registration, then the
priority for inclusion of shares shall be pro-rata among such secondary
sellers (including EXEL) in accordance with Section 2(c)(i).
(c) If EXEL elects not to participate in any underwriting in which
it had previously requested the registration described in Section 3(a),
EXEL may elect to withdraw therefrom by delivering written notice to the
Company and the managing underwriter or underwriters, if any, 10 Business
Days prior to the planned effective date of such registration.
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Section 4. Hold-Back Agreements; Press Releases.
(a) EXEL agrees not to effect any public sale or distribution of
securities of the Company, including a sale pursuant to Rule 144 under the
Securities Act (except as part of such Underwritten Registration), during
the 30-day period prior to, other than a sale made in connection with a
Piggyback Registration under Section 3, and during the 180-day period
beginning on, the closing date of each Underwritten Offering made pursuant
to a Registration Statement, unless the managing underwriter or
underwriters agree in writing to waive or shorten any such period for all
sellers of Common Stock. This provision shall not apply to EXEL if there
is a public sale or distribution of securities of the Company subsequent
to such holding period or if EXEL is prevented by applicable statute or
regulation from entering into any such agreement; provided, however, that
EXEL shall undertake, in its request to participate in any such
underwritten offering, not to effect any public sale or distribution of
securities commencing on the date of such offering unless EXEL has
provided 180 days prior written notice of such sale or distribution to the
managing underwriter or underwriters (or such lesser number of days as
then remains in the 180-day period commencing on the closing date of such
offering). The Company agrees to be bound by the foregoing hold-back
agreement and to cause each person to which it grants registration rights
to be so bound, to the same extent as EXEL.
(b) Before EXEL shall disseminate or announce publicly any
information concerning a proposed offering pursuant to Section 2 or 3
hereof that is intended for or may result in public knowledge thereof,
EXEL shall so advise the Company and shall not disseminate or announce
publicly such information without the Company's consent, unless such
information is otherwise publicly available or the dissemination thereof
is required by applicable law.
Section 5. Registration Procedures. In connection with the Company's
Demand Registration or Piggyback Registration obligations pursuant to Sections 2
and 3 hereof, the Company will use its reasonable efforts to effect such Demand
Registration or Piggyback Registration to permit the sale of Common Stock in
accordance with the intended method or methods of distribution thereof, and
pursuant thereto the Company will:
(a) prepare and file with the SEC, as soon as practicable after
receipt of the registration request referred to in Section 2 or 3 hereof,
and use its best efforts to have declared effective, a Registration
Statement relating to the Demand Registration or Piggyback Registration on
any appropriate form under the Securities Act, which form shall be
available for the sale of the Common Stock in accordance with the intended
method or methods of distribution thereof and shall include all financial
statements required by the SEC to be filed therewith, and cooperate and
assist in any filings required to be made with any national stock exchange
or national computerized market system on which the Common Stock is to be
listed or quoted; provided, however, that, before filing a Registration
Statement or Prospectus or any amendments or supplements thereto, the
Company shall furnish to EXEL and the managing underwriter or
underwriters, if any, copies of all such documents proposed to be filed,
which documents shall be
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subject to the reasonable review of EXEL and the managing underwriter or
underwriters, if any, and the Company shall not file any Registration
Statement or amendment thereto or any Prospectus or any supplement thereto
to which EXEL or the managing underwriter or underwriters, if any, shall
reasonably object in writing;
(b) cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule
424 under the Securities Act and comply with the provisions of the
Securities Act with respect to the disposition of all Common Stock covered
by such Registration Statement during the applicable period in accordance
with the intended method or methods of distribution by EXEL set forth in
such Registration Statement or supplement to the Prospectus; provided,
however, that any actions taken by the Company in good faith and for valid
business reasons, including, without limitation, the acquisition or
divestiture of assets, shall not violate the foregoing so long as the
Company promptly thereafter complies with the requirements of Section 5(k)
hereof, if applicable;
(c) promptly notify EXEL and the managing underwriter or
underwriters, if any, and (if requested by any such Person) confirm such
notice in writing: (i) when the Registration Statement or any amendment
thereto or the Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to the Registration Statement
or any post-effective amendment, when the same has become effective, and
to furnish or make available to EXEL and the underwriter copies thereof,
(ii) of any request by the SEC for amendments or supplements to the
Registration Statement or the Prospectus or for additional information,
(iii) of the issuance by the SEC of any stop order or similar order
suspending the effectiveness of the Registration Statement or the use of
any preliminary Prospectus or Prospectus or the initiation or threatening
of any proceedings for that purpose, (iv) if at any time the
representations and warranties of the Company contemplated by Section 5(1)
hereof cease to be true and correct, (v) of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Common Stock for offering or sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, and (vi) of
the happening of any event that makes any statement made in the
Registration Statement, the Prospectus, or any document incorporated
therein by reference, untrue or that requires the making of any changes in
the Registration Statement, the Prospectus, or any document incorporated
therein by reference in order to make the statements therein not
misleading;
(d) make every reasonable effort to obtain the withdrawal of any
stop order or other order suspending the effectiveness of the Registration
Statement or the use of any preliminary Prospectus or Prospectus, at the
earliest possible moment;
(e) if requested by EXEL or the managing underwriter or
underwriters, if any, incorporate in a Prospectus supplement or
post-effective amendment such
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information as EXEL or the managing underwriter or underwriters, if any,
reasonably agree should be included therein relating to the plan of
distribution with respect to the Common Stock to be sold by EXEL; and make
all required filings of such Prospectus supplement or post-effective
amendment as soon as notified of the matters to be incorporated in such
Prospectus supplement or post-effective amendment; provided, however, that
the Company shall not be required to take any actions in this Section 5(e)
that are not, in the written opinion of counsel for the Company delivered
to EXEL, in compliance with applicable law;
(f) furnish to EXEL and each managing underwriter or underwriters,
if any, without charge, as many conformed copies as they may reasonably
request of the Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (including those
incorporated by reference);
(g) deliver to EXEL and the managing underwriter or underwriters, if
any, without charge, as many copies of the Prospectus (including each
preliminary Prospectus) and any amendment or supplement thereto as such
Persons may reasonably request; it being understood and agreed that the
Company consents to the use of any preliminary Prospectus, Prospectus or
any amendment or supplement thereto by EXEL and the managing underwriter
or underwriters, if any, in connection with the offering and sale of the
Common Stock covered by any preliminary Prospectus or Prospectus or any
amendment or supplement thereto;
(h) prior to any public offering of Common Stock covered by a
Registration Statement, use its best efforts to register or qualify, and
cooperate with EXEL, the managing underwriter or underwriters, if any, and
respective counsel in connection with the registration or qualification
of, such Common Stock for offer and sale under the securities or blue sky
laws of such jurisdictions as EXEL or any such underwriter reasonably
requests in writing and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Common
Stock covered by the Registration Statement; provided, however, that the
Company shall not be required: (1) to qualify generally to do business in
any jurisdiction where it is not then so qualified or (2) to take any
action that would subject it to general service of process in any such
jurisdiction where it is not then so subject or subject the Company to any
tax in any such jurisdiction where it is not then so subject;
(i) (1) cooperate with EXEL and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing the Common Stock covered by a Registration
Statement to be sold; and (2) enable the Common Stock covered by a
Registration Statement to be in such denominations and registered in such
names as EXEL or the managing underwriter or underwriters may request at
least two Business Days prior to any sale of such Common Stock to the
underwriters;
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(j) use its best efforts to cause the Common Stock covered by the
applicable Registration Statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary to
enable EXEL or the managing underwriter or underwriters, if any, to
consummate the disposition of such Common Stock; provided, however, that
the Company shall not be required to register the Common Stock covered by
a Registration Statement in any jurisdiction where such registration would
subject the Company to general service of process where it is not then so
subject, or subject the Company to any tax in any such jurisdiction where
it is not then so subject;
(k) upon the occurrence of any event contemplated by Section
5(c)(vi) above, prepare a supplement or post-effective amendment to the
Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of the Common Stock
covered by a Registration Statement, the Prospectus will not contain an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading;
(l) enter into such customary agreements (including an underwriting
agreement) on terms reasonably acceptable to the Company and use its best
efforts to take all such other actions in order to facilitate the
disposition of the Common Stock covered by the Registration Statement and
in such connection, whether or not an underwriting agreement is entered
into and whether or not the registration is an underwritten registration:
(i) make such representations and warranties to EXEL and the managing
underwriter or underwriters, if any, in form, substance and scope, as are
customarily made by issuers to underwriters in similar underwritten
offerings; (ii) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance) shall
be reasonably satisfactory to the managing underwriter or underwriters, if
any, and not objected to by EXEL) addressed to EXEL and the managing
underwriter or underwriters, if any, covering the matters customarily
covered in opinions requested in underwritten offerings and such other
matters as may be reasonably requested by EXEL or the underwriters; (iii)
obtain "cold comfort" letters and updates thereof from the Company's
independent public accountants addressed to EXEL and the managing
underwriter or underwriters, if any, such letters to be in customary form
and covering matters of the type customarily covered in "cold comfort"
letters by accountants in connection with primary underwritten offerings;
(iv) if an underwriting agreement is entered into, the same shall set
forth certain indemnification provisions and procedures with respect to
all parties to be indemnified pursuant thereto, which provisions and
procedures shall be normal and customary in the investment banking and/or
financial services industry; provided, however, that EXEL shall not be
required to provide indemnification to any Person beyond the scope of its
indemnity in Section 7(b) hereof; (v) deliver such documents and
certificates as may be reasonably requested by EXEL and the managing
underwriter or underwriters, if any, to evidence compliance with Section
5(k) above and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company; and (vi) cause
its directors and management to participate in such
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"roadshows" or other sales presentations as may be reasonably requested by
EXEL or the managing underwriter or underwriters, if any. Each of the
above shall be done at or before each closing under such underwriting or
similar agreement or as and to the extent required thereunder or
otherwise; and
(m) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC, and make generally available to holders
of Common Stock covered by a Registration Statement, earnings statements
satisfying the provisions of Section 11(a) of the Securities Act, no later
than 45 days after the end of any 12-month period (or 90 days, if such
period is a fiscal year): (1) commencing at the end of any fiscal quarter
in which Common Stock covered by a Registration Statement is sold to
underwriters in a firm or best efforts underwritten offering, or (2) if
not sold to underwriters in such an offering, beginning with the first
month of the Company's first fiscal quarter commencing after the effective
date of the Registration Statement, which statements shall cover said
12-months periods.
The Company may require EXEL to furnish to the Company such information
regarding the distribution of such securities as the Company may from time to
time reasonably request in writing, and the Company may exclude from the
registration the Common Stock of EXEL if it fails to furnish such information
within a reasonable time after receiving such request.
EXEL agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 5(c)(iii), 5(c)(v) or
5(c)(vi) hereof, EXEL will discontinue disposition of Common Stock as promptly
as practicable following receipt of such notice until EXEL receives copies of
the supplemented or amended Prospectus contemplated by Section 5(k) hereof, or
until EXEL is advised in writing by the Company that the use of the Prospectus
may be resumed, and has received copies of any additional or supplemental
filings which are incorporated by reference in the Prospectus, and, if so
directed by the Company, EXEL will deliver to the Company all copies, other than
permanent file copies then in EXEL's possession, of the Prospectus covering such
Common Stock at the time of receipt of such notice.
Section 6. Registration Expenses.
(a) Except as set forth in Section 6(c) hereof, all expenses
incident to the Company's performance of or compliance with this Agreement
pursuant to any Piggyback Registration, including, without limitation all:
(i) registration and filing fees, including fees and expenses associated
with filings required to be made with a national securities exchange or
national computerized market system, (ii) fees and expenses of compliance
with state securities or blue sky laws (including reasonable fees and
disbursements of counsel for underwriters in connection with blue sky
qualifications of the Common Stock covered by the Registration Statement
and determination of eligibility for investment under the laws of such
jurisdictions designated by the managing underwriter or underwriters, if
any), (iii) printing expenses (including expenses of printing certificates
for the Common Stock covered by the Registration Statement in a form
eligible for deposit with Depositary Trust Company and of printing
prospectuses), (iv) fees and disbursements of counsel for the Company, of
all
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independent public accountants of the Company (including the expenses of
any special audit and "cold comfort" letters required by or incident to
such performance), and of all underwriters, and (v) fees and expenses of
other Persons retained by the Company shall be borne by the Company,
regardless of whether the Registration Statement becomes effective. In
addition to the expenses set forth in Section 6(c), all expenses incident
to the Company's performance of or compliance with this Agreement pursuant
to any Demand Registration including, without limitation, the expenses
described in the first sentence of this Section 6(a) (other than the fees
and disbursements of all independent public accountants of the Company,
which shall be born by the Company) shall be borne by EXEL, whether or not
the Registration Statement becomes effective.
(b) The Company shall, under either a Piggyback or Demand
Registration, pay its internal expenses (including, without limitation,
all salaries and expenses of its officers and employees performing legal
or accounting duties), the expense of any annual audit, rating agency
fees, and the fees and expenses of any Person (other than legal counsel),
including special experts, retained by the Company.
(c) EXEL shall bear the following expenses in connection with any
Demand or Piggyback Registration, regardless or whether the Registration
Statement becomes effective: (i) all discounts, commissions, or fees of
underwriters, selling brokers, dealer managers, or similar securities
industry professionals relating to the distribution of the Common Stock of
EXEL, (ii) all legal and accounting fees and expenses of EXEL and (3) all
taxes of EXEL.
Section 7. Indemnification.
(a) Indemnification by the Company. The Company agrees to indemnify
and hold harmless, to the full extent permitted by law, EXEL, its
officers, directors, and employees, and each Person who controls EXEL
(within the meaning of Section 15 of the Securities Act), from and against
all losses, claims, damages, liabilities, and reasonable expenses arising
out of or based upon any untrue or alleged untrue statement of a material
fact contained in any Registration Statement, Prospectus or preliminary
Prospectus or any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as the same are caused by or
contained in any information furnished to the Company in writing by EXEL
or any other holder of Common Stock expressly for use therein; provided,
however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability, or expense of EXEL
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any such preliminary
Prospectus, if: (1) EXEL or its agents failed to deliver a copy of the
Prospectus to the Person asserting such loss, claim, damage, liability, or
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expense after the Company had furnished EXEL with a sufficient number of
copies of the same, and (2) the Prospectus corrected such untrue statement
or omission; and provided further that the Company shall not be liable in
any such case to the extent that any such loss, claim, damage, liability,
or expense arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission in the Prospectus, if
such untrue statement or alleged untrue statement or omission or alleged
omission is corrected in an amendment or supplement to the Prospectus and
EXEL or its agents thereafter fails to deliver such Prospectus as so
amended or supplemented prior to or concurrently with the sale of the
Common Stock covered by a Registration Statement to the Person asserting
such loss, claim, damage, liability, or expenses after the Company had
furnished EXEL with a sufficient number of copies thereof in a manner and
at a time sufficient to permit delivery of the same. The Company will also
indemnify underwriters, selling brokers, dealer managers, and similar
securities industry professionals participating in the distribution, their
officers and directors, and each Person who controls such Persons (within
the meaning of Section 15 of the Securities Act), to the same extent as
provided above with respect to the indemnification of EXEL, if requested.
(b) Indemnification by EXEL. In connection with each Demand and
Piggyback Registration hereunder, EXEL shall furnish to the Company in
writing such information and affidavits as the Company reasonably requests
for use in connection with any Registration Statement or Prospectus, and
agrees to indemnify and hold harmless, to the full extent permitted by
law, the Company, its officers, directors, and employees, and each Person
who directly or indirectly controls the Company (within the meaning of
Section 15 of the Securities Act), from and against any losses, claims,
damages, liabilities, and reasonable expenses resulting from any untrue
statement of a material fact or any omission of a material fact required
to be stated in the Registration Statement or Prospectus or preliminary
Prospectus or necessary to make the statements therein not misleading, to
the extent, but only to the extent, that such untrue statement or omission
is contained in any information or affidavit so furnished by EXEL in
writing to the Company specifically for inclusion in such Registration
Statement or Prospectus. The Company shall be entitled to receive
indemnities from underwriters, selling brokers, dealer managers, and
similar securities industry professionals participating in the
distribution, to the same extent as provided above with respect to
information so furnished in writing by such Persons specifically for
inclusion in any Prospectus or Registration Statement.
(c) Conduct of Indemnification Proceedings. Any Person entitled to
indemnification hereunder shall: (i) give prompt written notice to the
indemnifying party of any written claim with respect to which it seeks
indemnification, and (ii) permit such indemnifying party to assume the
defense of such claim with counsel reasonably satisfactory to the
indemnified party; provided, however, that any Person entitled to
indemnification hereunder shall have the right to employ separate counsel
and to participate in the defense of such claim, but the fees and expenses
of such counsel shall be at the expense of such Person unless: (x) the
indemnifying party has agreed in writing to pay such fees or expenses, or
(y) the indemnifying party shall have failed to assume the defense of such
claim and employ counsel reasonably satisfactory to such Person, or (z) in
the reasonable judgment of any such Person, based upon written advice of
its counsel, a conflict of interest may exist between such Person and the
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indemnifying party with respect to such claims (in which case, if the
Person notifies the indemnifying party in writing that such Person elects
to employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such
claim on behalf of such Person). If such defense is not assumed by the
indemnifying party, the indemnifying party will not be subject to any
liability for any settlement made without its consent (but such consent
will not be unreasonably withheld). No indemnifying party based on written
advise of counsel will be required to consent to entry of any judgment or
enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect to such claim or litigation. 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 (together with appropriate local counsel) for all
parties indemnified by such indemnifying party with respect to such claim,
unless in the reasonable judgment of any indemnified party, based upon
written advice of counsel, a conflict of interest may exist between such
indemnified parties with respect to such claim, in which event the
indemnifying party shall be obligated to pay the fees and expenses of such
additional counsel or counsels.
(d) Contribution. If for any reason the indemnification provided for
in the preceding Sections 7(a) and 7(b) is unavailable to an indemnified
party or insufficient to hold it harmless as contemplated by the preceding
Sections 7(a) and 7(b), then the indemnifying party shall contribute to
the amount paid or payable by the indemnified party as a result of such
loss, claim, damage or liability in such proportion as is appropriate to
reflect not only the relative benefits received by the indemnified party
and the indemnifying party, but also the relative fault of the indemnified
party and the indemnifying party, as well as any other relevant equitable
considerations. No Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
Section 8. Participation in Underwritten Registrations.
(a) If any of the Common Stock covered by a Registration Statement
is to be sold in an underwritten offering, the investment banker or
investment bankers and manager or managers that will administer the
offering will be selected by EXEL in the case of a Demand Registration and
otherwise will be selected by the Company.
(b) No Person may participate in any underwritten registration
hereunder unless such Person: (i) agrees to sell such Person's Common
Stock on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements, and (ii)
completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreement, and other documents required under
the terms of such underwriting arrangements. Nothing in this Section 8
shall be construed to create any additional rights
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regarding the registration of Common Stock in any Person otherwise than as
set forth herein.
Section 9. Termination. The rights and performance of all the obligations
under this Agreement shall automatically terminate upon the later to occur of
(i) the sale of all Common Stock owned by the EXEL, and (2) termination of the
FSAI Shareholders Agreement in accordance with its terms.
Section 10. Amendments and Waivers. This Agreement may be amended or
modified at any time upon the agreement of the Company and EXEL by an instrument
in writing executed by each such party. In addition, any party may, at its
option, by an instrument in writing, waive or extend the time for the
fulfillment of any condition herein contained to be fulfilled for the benefit of
such party. Waiver by any party of any breach or failure to comply with any
provision of this Agreement by another party shall not be construed as, or
constitute, a continuing waiver of such provisions, or a waiver of any other
breach of or failure to comply with any other provisions of this Agreement.
Section 11. Secretary to Retain Copy. A copy of this Agreement, including
all Exhibits hereto, shall be filed with the Secretary of the Company and the
Secretary shall make it available to EXEL upon request at all reasonable times
during normal business hours.
Section 12. Choice of Law and Forum and Service of Process.
(a) This Agreement shall be governed by and construed in accordance
with New York law, without regard to principles of conflicts of law.
(b) To the extent that an action is required to further, or
otherwise is not inconsistent with, arbitration pursuant to Section 13
hereof, each party hereby irrevocably submits to the exclusive
jurisdiction of any state or federal court of general jurisdiction sitting
in New York, New York, over any action or proceeding arising out of or
relating to this Agreement, and each party hereby irrevocably agrees that
all claims in respect of such action or proceeding may be heard and
determined in such court, except that actions or proceedings to collect on
judgments issued by a New York court may be brought in any jurisdiction
where the losing party has assets. Each party hereby irrevocably waives
the defense of an inconvenient forum to the maintenance of such action or
proceeding. Each party hereby irrevocably waives, to the fullest extent it
may effectively do so, any right to trial by jury of an action or
proceeding arising out of or relating to this Agreement.
(c) Each party hereby agrees that process in any action or
proceeding may be served by registered mail, return receipt requested, or
in any other manner permitted by the rules of the court in which the
action or proceeding may be brought.
Section 13. Arbitration. Except as provided in Section 13(e) below, any
dispute, controversy or claim arising out of or relating to this Agreement or to
any actual or alleged breach, cancellation, termination or invalidity of this
Agreement shall be finally and fully
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determined in New York, New York, by a Board composed of three arbitrators to be
selected for each controversy as follows:
(a) Any party (a "Party") to an arbitration proceeding hereunder
may, in the event of a dispute, controversy or claim, notify the other
Party or Parties to such dispute, controversy or claim of its desire to
arbitrate the matter, and at the time of such notification the Party
desiring arbitration shall notify any other Party or Parties of the name
of the arbitrator selected by it. The other Party or Parties who has been
so notified shall within forty-five (45) calendar days thereafter select
an arbitrator and notify the Party desiring arbitration of the name of
such second arbitrator. If the Party or Parties notified of a desire for
arbitration shall fail or refuse to nominate the second arbitrator within
forty-five (45) calendar days following the receipt of such notification,
the Party who first served notice of a desire to arbitrate may, within a
period of thirty (30) calendar days following the expiration of such
forty-five (45) day period, apply to a judge of the Supreme Court of the
State of New York for the appointment of a second arbitrator and in such a
case the arbitrator appointed by such a judge shall be deemed to have been
nominated by the Party or Parties who failed to select the second
arbitrator. The two arbitrators, chosen as above provided, shall within
thirty (30) calendar days after the appointment of the second arbitrator
choose a third arbitrator. In the event of the failure of the first two
arbitrators to agree on a third arbitrator within said thirty (30)
calendar day period, either of the Parties may within a period of thirty
(30) calendar days thereafter, after notice to the other Party or Parties,
apply to a judge of the Supreme Court of the State of New York for the
appointment of a third arbitrator and in such case the person so appointed
shall be deemed and shall act as the third arbitrator. Upon acceptance of
the appointment by said third arbitrator, the Board of Arbitration for the
controversy in question shall be deemed fixed. Each arbitrator selected to
serve on the Board of Arbitration shall be an active or retired executive
officer of an insurance or a reinsurance company having no direct or
indirect financial interest in either party or its affiliates and
otherwise free of any actual or potential conflict of interest that might
reasonably prevent such person from acting in a judicious and impartial
manner. All claims, demands, denials of claims and notices pursuant to
this Article shall be given to the addresses of the Parties set forth in
Annex II of the Share Purchase Agreement.
(b) The Board of Arbitration shall fix, by a notice in writing to
the Parties, a reasonable time and place for the hearing and shall follow
the rules and regulations governing the course and conduct of an
arbitration proceeding under the rules of the American Arbitration
Association or its successor organization, including discovery by the
Parties.
(c) The Board of Arbitration shall, within ninety (90) calendar days
following the conclusion of the hearing, render its decision on the matter
or matters in controversy in writing and shall cause a copy thereof to be
served on the Parties thereto. In case the Board of Arbitration fails to
reach a unanimous decision, the decision of the majority of the members of
the Board of Arbitration shall be deemed to be the decision of the Board
of Arbitration and the same shall
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be final and binding on the Parties thereto. Such decision shall be a
complete defense to any attempted appeal or litigation of such decision in
the absence of serious irregularity. Without limiting the foregoing, the
Parties waive any right to appeal to, and/or seek collateral review of the
decision of the Board of Arbitration by, any court or other body to the
fullest extent permitted by applicable law, including, without limitation,
application or appeal under applicable law.
(d) Any order as to the costs of the arbitration shall be in the
sole discretion of the Board of Arbitration, who may direct to whom and by
whom and in what manner they shall be paid. The Board of Arbitration shall
have no power or authority to order the payment of punitive damages.
(e) Nothing in this Section 13 shall preclude a Party from seeking
an injunction, specific performance or other equitable remedy from any
court of competent jurisdiction.
Section 14. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto without the prior written consent of the other parties, except by
operation of law; provided, however, that EXEL may assign this Agreement to any
of its direct or indirect subsidiaries without the consent of the Company.
Subject to the preceding sentence, this Agreement will be binding upon, and will
inure to the benefit of and be enforceable by, the parties and their respective
successors and assigns.
Section 15. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or air courier guaranteeing overnight
delivery:
(i) If to the Company:
350 Park Avenue
New York, New York 10022
U.S.A.
Attention: General Counsel
fax: 212-339-0849
(ii) If to EXEL:
Cumberland House
1 Victoria Street
Hamilton HM11, Bermuda
Attention: General Counsel
fax: 441-292-5850
All such notices and communications shall be deemed to have been duly given upon
receipt.
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Section 16. No Third-Party Beneficiaries. This Agreement is for the
exclusive benefit of the parties hereto and is not intended to confer upon any
other Person any rights or remedies hereunder.
Section 17. Entire Agreement. This Agreement is intended by the parties as
a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties, or undertakings, other than those set forth or referred to
herein, with respect to the registration rights granted by the Company with
respect to the Common Stock. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
Section 18. Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning of any of
the terms or provisions hereof.
Section 19. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which,
when taken together, shall constitute one and the same agreement.
Section 20. Severability. If any provision of this Agreement or the
application thereof to any person or circumstances is determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof, or the application of such provision to persons or
circumstances other than those as to which it has been held invalid or
unenforceable, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby, so long as the economic legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination, the parties shall negotiate in
good faith in an effort to agree upon a suitable and equitable substitute
provision to effect the original intent of the parties.
-15-
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered, all of the first data first above written.
FINANCIAL SECURITY ASSURANCE HOLDINGS LTD.
By: /s/ Bruce E. Stern
--------------------------------------
Name: Bruce E. Stern
Title: Managing Director
EXEL LIMITED
By: /s/ Robert R. Lusardi
--------------------------------------
Name: Robert R. Lusardi
Title: Executive Vice President and
Chief Financial Officer
-16-
EXHIBIT A
TO REGISTRATION RIGHTS AGREEMENT
DEFINITIONS
"Business Day" means any day on which commercial banks are open for
business in New York, New York.
"Common Stock" means the Common Stock, par value $.01 per share, of the
Company listed on the New York Stock Exchange and any securities listed in
respect thereof, or in a substitution therefor, in connection with any stock
split, dividend, combination, or any reclassification, recapitilization, merger,
consolidation, exchange or other similar reorganization.
"Demand Registration" has the meaning provided in Section 2 hereof.
"Exchange Act" means the Securities Exchange Act of 1934 amended, and the
rules and regulations promulgated thereunder.
"Person" means and individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof or other entity.
"Piggyback Registration" has the meaning provided in Section 3 hereof.
"Prospectus" means the prospectus included in any Registration Statement,
as amended or supplemented by any prospectus supplement with respect to the
terms of the offering of any portion of the Common Stock covered by such
Registration Statement and by all other amendments and supplements to the
prospectus, including post-effective amendments and all material incorporated by
reference in such prospectus.
"Registration Expenses" means the expenses of registration described in
Section 6 hereof.
"Registration Statement" means any registration statement of the Company
that covers any of Common Stock pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplement to such Registration
Statement, including post-effective amendments, all exhibits and all material
incorporated by reference in such Registration Statement.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Underwritten Registration" or "Underwritten Offering" means a
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
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