Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is dated as of March 6, 2009 (the
"Agreement"), by and among Willis Group Holdings Limited, an exempted company
under the Companies Act 1981 of Bermuda ("Holdings"), Trinity Acquisition
Limited, a company organized and operated under the laws of England and Wales
and an indirect subsidiary of Holdings (the "Issuer"), and each of the other
guarantors party hereto (collectively with Holdings, the "Guarantors" and the
Guarantors, together with the Issuer, the "Obligors"), on the one hand, and GSMP
V Onshore International, Ltd., an exempted Issuer incorporated in the Cayman
Islands with limited liability ("GSMP Onshore"), GSMP V Offshore International,
Ltd., an exempted Issuer incorporated in the Cayman Islands with limited
liability ("GSMP Offshore") and GSMP V Institutional International, Ltd., an
exempted Issuer incorporated in the Cayman Islands with limited liability ("GSMP
Institutional" and, together with GSMP Onshore and GSMP Offshore, the "Initial
Purchasers"), on the other hand.
This Agreement is entered into in connection with the Note Purchase
Agreement by and among the Obligors, the Initial Purchasers and certain other
purchasers named therein, dated as of February 10, 2009 (the "Note Purchase
Agreement") which provides for, among other things, the issuance by the Issuer
to the Initial Purchasers of $500,000,000.00 aggregate principal amount of the
Issuer's 12.875% Senior Notes due December 31, 2016 (the "Notes") which will be
guaranteed by each of the Guarantors (the "Guarantees"). References herein to
the "Securities" refer to the Notes and the Guarantees collectively (or any
Securities into which the Notes and Guarantees may be converted or exchanged).
In order to induce the Initial Purchasers to enter into the Note Purchase
Agreement, the Obligors have agreed to provide the registration rights set forth
in this Agreement for the sole benefit of the Initial Purchasers and not for the
benefit of any subsequent holder or holders of the Securities.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following terms shall
have the following meanings:
"Automatic Shelf Registration Statement" shall have the meaning set
forth in Section 3 hereof.
"Business Day" shall mean any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed.
"Closing Date" shall mean the Closing Date as defined in the Note
Purchase Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"Guarantors" shall have the meaning set forth in the preamble and
shall also include any of the Guarantors' successors.
"Holders" shall mean the Initial Purchasers and any subsequent
holder of Registrable Securities that is a member of the GSMP Group (as defined
in the Indenture), for so long as they own any Registrable Securities, and not
any other subsequent holder of such securities.
"Indenture" shall mean the Indenture relating to the Securities
dated as of March 6, 2009 among the Issuer, as issuer, the Guarantors and The
Bank of New York Mellon, as trustee, and as the same may be amended and
supplemented from time to time in accordance with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the
preamble.
"Inspector" shall have the meaning set forth in Section 3(m) hereof.
"Issuer" shall have the meaning set forth in the Preamble and shall
also include the Issuer's successors.
"Note Purchase Agreement" shall have the meaning set forth in the
preamble.
"Person" shall mean any individual, corporation, limited liability
company, partnership, joint venture, association, joint stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Prospectus" shall mean the prospectus included in a registration
statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by the Shelf Registration Statement, and by all
other amendments and supplements to such prospectus, and in each case including
any document incorporated by reference therein.
"Registrable Securities" shall mean the Securities sold to the
Initial Purchasers on the Closing Date, for so long as they are owned directly
or indirectly by the Initial Purchasers; provided that the Securities shall
cease to be Registrable Securities (i) when a registration statement with
respect to such Securities has been declared effective under the Securities Act
and such Securities have been disposed of pursuant to such registration
statement, (ii) after such Securities have been sold pursuant to Rule 144 (or
any similar provision then in force, but not Rule 144A) under the Securities Act
or (iii) when such Securities cease to be outstanding.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Obligors with this Agreement, including,
without limitation, (i) all SEC, stock exchange or FINRA registration and filing
fees, (ii) all fees and expenses incurred in connection with compliance with
state securities or blue sky laws (including reasonable fees and disbursements
of counsel for any Underwriters or Holders in connection with blue sky
qualification of any Registrable Securities), (iii) all expenses of any Persons
in preparing or assisting in preparing, word processing, printing and
distributing any registration statement, any Prospectus and any amendments or
supplements thereto, any underwriting agreements, securities sales agreements or
other similar agreements and any other documents relating to the performance of
and compliance with this Agreement, (iv) all rating agency fees, (v) all fees
and disbursements relating to the qualification of the Indenture under
applicable securities laws, (vi) the fees and disbursements of the Trustee and
its counsel, (vii) the fees and disbursements of counsel for the Obligors and
the reasonable fees and disbursements of one counsel for the Holders (which
counsel shall be selected by the Required Holders) including one local or
foreign counsel in each relevant jurisdiction, (viii) the fees and disbursements
of the independent public accountants of the Obligors, including the expenses of
any special audits or "comfort" letters required by or incident to the
performance of and compliance with this Agreement, (ix) the expenses incurred in
connection with any road shows, including preparation and transmission of any
road shows, (x) printers costs, (xi) any expenses related to clearance of the
Securities on DTC, Everclear and/or Clearstream, and any expenses related to
obtaining CUSIP numbers for the Securities, (xii) the fees and disbursements and
expenses of any qualified independent underwriter necessary in connection with
any offering of Securities hereunder and (xiii) fees and disbursements of
Underwriters customarily paid by Obligors of securities, but excluding fees and
expenses of counsel to the Underwriters (other than fees and expenses set forth
in clause (ii) above) and underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of Registrable Securities by
a Holder.
2
"Required Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities; provided that
whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities owned
directly or indirectly by the Issuer or any of its Affiliates shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage or amount.
"SEC" shall mean the Securities and Exchange Commission.
"Securities" shall have the meaning set forth in the preamble.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Shelf Effectiveness Period" shall have the meaning set forth in
Section 2(a) hereof.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(a) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Obligors that covers all the Registrable Securities (and may
cover other securities of the Obligors) on an appropriate form (including,
without limitation, Form S-1 or F-1, or Form S-3 or F-3) under Rule 415 under
the Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and any document incorporated by reference
therein. To the extent the Obligors are eligible (i) a Shelf Registration
Statement on Form S-1 or F-1 may be refiled at any time on Form S-3 or F-3, (ii)
the Shelf Registration Statement may be filed in the form of an "automatic shelf
registration statement" (as defined below), and (iii) the Shelf Registration
Statement may be re-filed at any time as an automatic shelf registration
statement.
"Staff" shall mean the staff of the SEC.
"TIA" shall mean the Trust Indenture Act of 1939, as amended from
time to time.
"Trustee" shall mean the trustee with respect to the Securities
under the Indenture.
"Underwriter" shall have the meaning set forth in Section 3 hereof.
"Underwritten Offering" shall mean an offering in which Registrable
Securities are sold to an Underwriter for reoffering to the public.
2. Registration Under the Securities Act.(a) Upon the written
demand (the "Shelf Demand") of the Required Holders, the Obligors shall be
required to file, on up to three occasions, a Shelf Registration Statement with
the SEC to cover resales of the Registrable Securities; provided that, each
Shelf Demand shall include Registrable Securities with an aggregate principal
amount of no less than the lesser of (i) the aggregate principal amount of
Registrable Securities held by the Initial Purchasers at such time and (ii)
$50,000,000.00. In that case, the Obligors will use their commercially
reasonable efforts to (a) file the Shelf Registration Statement within 75 days
of receipt of the Shelf Demand, (b) cause the Shelf Registration Statement to be
declared effective under the Securities Act by the 165th day after they receive
the Shelf Demand and (c) maintain the effectiveness of the Shelf Registration
Statement during the Shelf Effectiveness Period (defined below).
3
The Obligors agree to use their commercially reasonable efforts to
keep the Shelf Registration Statement continuously effective until the earliest
of (i) two years from the date the Shelf Registration Statement is declared
effective under the Securities Act or (ii) such shorter period that will
terminate when all the Registrable Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement (the
"Shelf Effectiveness Period"). The Obligors further agree to supplement or amend
the Shelf Registration Statement and the related Prospectus if required by the
rules, regulations or instructions applicable to the registration form used by
the Obligors for such Shelf Registration Statement or by the Securities Act or
by any other rules and regulations thereunder for shelf registration or if
reasonably requested by a Holder of Registrable Securities with respect to
information relating to such Holder, and to use their commercially reasonable
efforts to cause any such amendment to become effective and such Shelf
Registration Statement and Prospectus to become usable as soon as thereafter
practicable. The Obligors agree to furnish to the Holders of Registrable
Securities copies of any such supplement or amendment promptly after its being
used or filed with the SEC. The Shelf Registration Statement may cover any
securities of the Obligors in addition to the Registrable Securities.
(b) The Obligors shall pay all Registration Expenses in connection
with the registration pursuant to Section 2(a) hereof. Each Holder shall pay all
underwriting discounts and commissions, brokerage commissions and transfer
taxes, if any, relating to the sale or disposition of such Holder's Registrable
Securities pursuant to the Shelf Registration Statement.
(c) A Shelf Registration Statement pursuant to Section 2(a) hereof
will not be deemed to have become effective unless it has been declared
effective by the SEC.
(d) Without limiting the remedies available to the Holders, the
Obligors acknowledge that any failure by the Obligors to comply with their
obligations under Section 2(a) hereof may result in material irreparable injury
to the Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, the Holders may obtain such relief as may be required to
specifically enforce the Obligors' obligations under Section 2(a) hereof.
3. Registration Procedures. In connection with their obligations
pursuant to Section 2(a) hereof, the Obligors shall as expeditiously as
reasonably possible:
(a) prepare and file with the SEC the Shelf Registration Statement
on the appropriate form under the Securities Act, which form (x) shall be
selected by the Obligors, (y) shall be available for the sale of the
Registrable Securities by the selling Holders thereof and (z) shall comply
as to form in all material respects with the requirements of the
applicable form and include all financial statements required by the SEC
to be filed therewith; and use their commercially reasonable efforts to
cause such registration statement to become effective and remain effective
for the applicable period in accordance with Section 2 hereof (provided,
however, that before filing a registration statement or Prospectus or any
amendments or supplements thereto, or any free writing prospectus related
thereto, the Obligors will furnish to the Holders and to one counsel for
the Holders copies of all such documents proposed to be filed, including
all exhibits thereto, which documents will be subject to the reasonable
review and reasonable comment of such counsel, and the Obligors shall not
file any registration statement or amendment thereto, any Prospectus or
supplement thereto or any free writing prospectus related thereto to which
the Holders or their counsel shall reasonably object);
4
(b) prepare and file with the SEC such amendments, supplements and
post-effective amendments to the Shelf Registration Statement and
Prospectus used in connection therewith as may be necessary to keep such
registration statement effective for the applicable period in accordance
with Section 2 hereof and cause each 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 keep each Prospectus
current during the period described in Section 4(3) of and Rule 174 under
the Securities Act that is applicable to transactions by brokers or
dealers with respect to the Registrable Securities;
(c) furnish to the Holders, to counsel for such Holders (which
counsel shall be selected by Holders of a majority in principal amount of
Securities covered by the Shelf Registration) and to each Underwriter of
an Underwritten Offering of Registrable Securities, if any, without
charge, as many copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto and any free writing
prospectus related thereto, in order to facilitate the sale or other
disposition of the Registrable Securities thereunder; and the Obligors
consent to the use of such Prospectus and any amendment or supplement
thereto and any free writing prospectus related thereto, in accordance
with applicable law by each of the selling Holders of Registrable
Securities and any such Underwriters in connection with the offering and
sale of the Registrable Securities covered by and in the manner described
in such Prospectus or any amendment or supplement thereto in accordance
with applicable law;
(d) use their commercially reasonable efforts to register or qualify
the Registrable Securities under all applicable state securities or blue
sky laws of such jurisdictions as any Holder of Registrable Securities
covered by a registration statement shall reasonably request in writing by
the time the applicable registration statement is declared effective by
the SEC; cooperate with the Holders in connection with any filings
required to be made with the National Association of Securities Dealers,
Inc.; and do any and all other acts and things that may be reasonably
necessary or advisable to enable each Holder to complete the disposition
in each such jurisdiction of the Registrable Securities owned by such
Holder; provided that neither the Issuer nor any Guarantor shall be
required to (i) qualify as a foreign corporation or other entity or as a
dealer in securities in any such jurisdiction where it would not otherwise
be required to so qualify, (ii) file any general consent to service of
process in any such jurisdiction or (iii) subject itself to taxation in
any such jurisdiction if it is not so subject;
(e) notify each Holder of Registrable Securities, and counsel for
Holders of Registrable Securities (which counsel shall be selected by
Holders of a majority in principal amount of Securities covered by the
Shelf Registration), promptly and, if requested by any such Holder or
counsel, confirm such advice in writing (i) when the Shelf Registration
Statement, any pre-effective amendments, any related Prospectus or
Prospectus supplement or any free writing prospectus related thereto has
been filed or used, when the Shelf Registration Statement has become
effective and when any post-effective amendment thereto has been filed and
becomes effective, (ii) of any request by the SEC or any state securities
authority for amendments and supplements to the Shelf Registration
Statement and Prospectus or for additional information after the Shelf
Registration Statement has become effective, (iii) of the issuance by the
SEC or any state securities authority of any stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation of any
proceedings for that purpose, (iv) if, between the effective date of the
Shelf Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of any
Obligor contained in any underwriting agreement, securities sales
agreement or other similar agreement, if any, relating to an offering of
such Registrable Securities cease to be true and correct in all material
respects or if any Obligor receives any notification with respect to the
suspension of the qualification of the Registrable Securities for sale in
any jurisdiction or the initiation of any proceeding for such purpose, (v)
of the happening of any event during the period the Shelf Registration
Statement is effective that makes any statement made in such registration
statement or the related Prospectus, any document incorporated by
reference therein, any free writing prospectus, or any information
conveyed to any purchaser at the time of sale to such purchaser untrue in
any material respect or that requires the making of any changes in such
registration statement or Prospectus or free writing prospectus or
incorporated document in order to make the statements therein not
misleading and (vi) of any determination by any Obligor that a
post-effective amendment to a registration statement would be appropriate;
5
(f) use their commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of the Shelf
Registration Statement at the earliest possible moment and provide
immediate notice to each Holder of the withdrawal of any such order;
(g) furnish to each Holder of Registrable Securities, without
charge, at least one conformed copy of the Shelf Registration Statement
and any post-effective amendment thereto (without any documents
incorporated therein by reference or exhibits thereto, unless requested);
(h) cooperate with the selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any
restrictive legends and enable such Registrable Securities to be issued in
such denominations and registered in such names (consistent with the
provisions of the Indenture) as the selling Holders may reasonably request
at least one Business Day prior to the closing of any sale of Registrable
Securities;
(i) upon the occurrence of any event contemplated by Section 3(e)(v)
hereof, use their commercially reasonable efforts to prepare and file with
the SEC a supplement or post-effective amendment to the Shelf 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 purchasers of the Registrable Securities, such Prospectus
will not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(j) a reasonable time prior to the filing of the Shelf Registration
Statement, any Prospectus, any amendment to the Shelf Registration
Statement or amendment or supplement to a Prospectus (excluding any
document that is to be incorporated by reference into the Shelf
Registration Statement or a Prospectus after initial filing of such
registration statement), provide copies of such document to the Required
Holders of Registrable Securities and their counsel and make such of the
representatives of the Obligors as shall be reasonably requested by the
Required Holders of Registrable Securities or their counsel available for
discussion of such document; and the Obligors shall not, at any time after
initial filing of the Shelf Registration Statement, file any Prospectus,
any amendment of or supplement to the Shelf Registration Statement or a
Prospectus, (excluding any document that is to be incorporated by
reference into the Shelf Registration Statement or a Prospectus), of which
the Required Holders of Registrable Securities and their counsel shall not
have previously been advised and furnished a copy and shall give good
faith consideration to their comments thereon;
6
(k) obtain a CUSIP number for all Registrable Securities not later
than the effective date of a registration statement and ensure that the
Registrable Securities are and remain cleared through The Depository Trust
Company (and/or, at the request of the holders of a majority of the
Registrable Securities, Euroclear and Clearstream);
(l) use their commercially reasonable efforts to cause the Indenture
to be qualified under the TIA in connection with the registration of the
Registrable Securities; cooperate with the Trustee and the Holders to
effect such changes to the Indenture as may be required for the Indenture
to be so qualified in accordance with the terms of the TIA; otherwise
comply with all provisions of the TIA; and execute, and use their
commercially reasonable efforts to cause the Trustee to execute, all
documents as may be required to effect such changes and all other forms
and documents required to be filed with the SEC to enable the Indenture to
be so qualified in a timely manner;
(m) in the case of an Underwritten Offering off of the Shelf
Registration Statement, make available for inspection by a representative
of the Holders of the Registrable Securities (an "Inspector"), any
Underwriter participating in any disposition pursuant to such Shelf
Registration Statement, counsel for the Underwriter, and one firm of
attorneys, at reasonable times and in a reasonable manner, all pertinent
financial and other records, documents and properties of the Obligors, and
cause the respective officers, directors and employees of the Obligors to
supply all information reasonably requested by any such Inspector,
Underwriter or attorney in connection with an Underwritten Offering off of
the Shelf Registration Statement; provided that if any such information is
identified by the Obligors as being confidential or proprietary, each
Person receiving such information shall take such actions as are
reasonably necessary to protect the confidentiality of such information to
the extent such action is otherwise not inconsistent with, an impairment
of or in derogation of the rights and interests of any Inspector, Holder
or Underwriter and shall sign customary confidentiality agreements
reasonably requested by the Obligors prior to the receipt of such
information;
(n) if reasonably requested by any Holder of Registrable Securities
covered by the Shelf Registration Statement, promptly incorporate in a
Prospectus supplement or post-effective amendment such information with
respect to such Holder as such Holder reasonably requests to be included
therein and make all required filings of such Prospectus supplement or
such post-effective amendment as soon as the Issuer has received
notification of the matters to be incorporated in such filing;
(o) at the request of any Holder seeking to effect a distribution of
Securities to such Holder's shareholders, partners or members (a "Partner
Distribution"), file any Prospectus supplement or post-effective
amendments and otherwise take any action necessary to amend or supplement
the Shelf Registration Statement in order to allow the Holder to
consummate the Partner Distribution and allow the shareholders, partners
or members of the Holder to freely sell the Securities received in such
Partner Distribution pursuant to such Shelf Registration Statement;
(p) deliver promptly to the Holders of Registrable Securities
included in any Shelf Registration Statement copies of all correspondence
between the SEC and the Obligors, their counsel or auditors and all
memoranda relating to discussions with the SEC or its Staff with respect
to the Shelf Registration Statement (including documents incorporated
therein by reference);
7
(q) make reasonably available, during normal business hours, their
employees and personnel and senior management for participation in up to
three road shows and other marketing efforts and meetings with rating
agencies and otherwise provide reasonable assistance to any Underwriters
in the marketing of Registrable Securities in any Underwritten Offering;
(r) take no direct or indirect action prohibited by Regulation M
under the Exchange Act;
(s) in the case of an Underwritten Offering off of the Shelf
Registration, enter into such customary agreements and take all such other
actions in connection therewith (including those reasonably requested by
the Holders of a majority in principal amount of the Registrable
Securities being sold) in order to expedite or facilitate the disposition
of such Registrable Securities including, but not limited to, an
Underwritten Offering and in such connection, (i) to the extent possible,
make such representations and warranties to the Holders and any
Underwriters of such Registrable Securities with respect to the business
of the Issuer and its subsidiaries, the Shelf Registration Statement,
Prospectus and documents incorporated by reference or deemed incorporated
by reference, if any, in each case, in form, substance and scope as are
customarily made by companies to Underwriters in Underwritten Offerings of
debt securities and confirm the same if and when requested, (ii) use
commercially reasonable efforts to obtain opinions of counsel to the
Obligors (which counsel and opinions, in form, scope and substance, shall
be reasonably satisfactory to such Underwriters and their counsel)
addressed to each Underwriter of Registrable Securities, covering the
matters customarily covered in opinions requested in underwritten
offerings, (iii) use commercially reasonable efforts to obtain "comfort"
letters from the independent certified public accountants of the Obligors
(and, if necessary, any other certified public accountant of any
subsidiary of the Issuer or any Guarantor, or of any business acquired by
the Issuer or any Guarantor for which financial statements and financial
data are or are required to be included in the Shelf Registration
Statement) addressed to each Underwriter of Registrable Securities, such
letters to be in customary form and covering matters of the type
customarily covered in "comfort" letters in connection with underwritten
offerings; (iv) in connection with any Underwritten Offering, retain a
qualified independent Underwriter to the extent required by the rules and
regulations of the FINRA and pay the fees and expenses of such QIU; and
(v) deliver such documents and certificates as may be reasonably requested
by the Underwriters, and which are customarily delivered in underwritten
offerings, to evidence the continued validity of the representations and
warranties of the Obligors made pursuant to clause (i) above and to
evidence compliance with any customary conditions contained in an
underwriting agreement;
(t) take all reasonable action to ensure that any free writing
prospectus utilized in connection with any Shelf Registration Statement
complies in all material respects with the Securities Act, is filed in
accordance with the Securities Act to the extent required thereby, is
retained in accordance with the Securities Act to the extent required
thereby and, when taken together with the related Prospectus, Prospectus
supplement and related documents, will not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; and
(u) in connection with any Underwritten Offering, if at any time the
information conveyed to a purchaser at the time of sale includes any
untrue statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, promptly file
with the SEC such amendments or supplements to such information as may be
necessary so that the statements as so amended or supplemented will not,
in light of the circumstances, be misleading.
8
To the extent that the Issuer or Holdings (or any other Obligors) is
a well-known seasoned issuer (as defined in Rule 405 under the Securities Act)
(a "WKSI") at the time any Shelf Demand is submitted to any of the Obligors, and
such Shelf Demand requests that the Obligors file an automatic shelf
registration statement (as defined in Rule 405 under the Securities Act) (an
"Automatic Shelf Registration Statement") on Form S-3, the Obligors shall file
an Automatic Shelf Registration Statement which covers those Registrable
Securities which are requested to be registered. The Obligors shall use their
commercially reasonable best efforts to remain a WKSI (and not become an
ineligible issuer (as defined in Rule 405 under the Securities Act)) during the
period during which such Automatic Shelf Registration Statement is required to
remain effective. If the Obligors do not pay the filing fee covering the
Registrable Securities at the time the Automatic Shelf Registration Statement is
filed, the Obligors agree to pay such fee at such time or times as the
Registrable Securities are to be sold. If the Automatic Shelf Registration
Statement has been outstanding for at least three years, at the end of the third
year the Obligors shall re-file a new Automatic Shelf Registration Statement
covering the Registrable Securities. If at any time when the Obligors are
required to re-evaluate their WKSI status the Obligors determine that neither
the Issuer nor Holdings is a WKSI, the Obligors shall use their commercially
reasonable best efforts to re-file the Shelf Registration Statement on Form S-3
or F-3 and, if such form is not available, Form S-1 or F-1 and keep such
registration statement effective during the period during which such
registration statement is required to be kept effective.
With respect to the Shelf Registration Statement, the Obligors may
require each Holder of Registrable Securities to furnish to the Issuer such
information regarding such Holder (including, without limitation, a customary
selling Holder questionnaire) and the proposed disposition by such Holder of
such Registrable Securities as the Obligors may from time to time reasonably
request in writing.
Each Holder of Registrable Securities agrees that, upon receipt of
any notice from the Obligors of the happening of any event of the kind described
in Section 3(e)(iii) or 3(e)(v) hereof, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the Shelf Registration
Statement until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 3(i) hereof and, if so directed by
the Obligors, such Holder will deliver to the Obligors all copies in its
possession, other than permanent file copies then in such Holder's possession,
of the Prospectus covering such Registrable Securities that is current at the
time of receipt of such notice.
If the Obligors shall give any such notice to suspend the
disposition of Registrable Securities pursuant to the Shelf Registration
Statement, the Obligors shall extend the period during which such registration
statement shall be maintained effective pursuant to this Agreement by the number
of days during the period from and including the date of the giving of such
notice to and including the date when the Holders shall have received copies of
the supplemented or amended Prospectus necessary to resume such dispositions.
The Obligors may give any such notice only twice during any 365-day period and
any such suspensions shall not exceed 90 days per 365-day period for all
extensions.
The Holders of Registrable Securities covered by the Shelf
Registration Statement who desire to do so may sell such Registrable Securities
in an Underwritten Offering. In any such Underwritten Offering, the investment
banker or investment bankers and manager or managers (the "Underwriters") that
will administer the offering will be selected by the Required Holders of the
Registrable Securities included in such offering with the Issuer's consent, not
to be unreasonably withheld.
9
4. Indemnification and Contribution. The Obligors, jointly and
severally, agree to indemnify and hold harmless each Holder, their respective
affiliates, directors; officers, employees, fiduciaries, agents, shareholders,
partners, members, advisors, attorneys, representatives and each Person, if any,
who controls any Holder within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, from and against any and all out-of-pocket
losses, claims, damages and liabilities (including, without limitation,
reasonable legal fees and other expenses incurred in connection with any suit,
action or proceeding or any claim asserted, as such fees and expenses are
incurred), joint or several, that arise out of, or are based upon, any untrue
statement or alleged untrue statement of a material fact contained in the Shelf
Registration Statement or any Prospectus, any preliminary Prospectus, any
amendment or supplement to any of the foregoing, or any free writing prospectus
utilized in connection with any of the foregoing, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or any untrue
statement or alleged untrue statement of a material fact in the information
conveyed to any purchaser at the time of the sale to such purchaser, or the
omission or alleged omission to state therein a material fact required to be
stated therein, and the Obligors will reimburse any such indemnified party for
any reasonable legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such claim as such
expenses are incurred, except insofar as such losses, claims, damages or
liabilities arise out of, or are based upon, any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with any information relating to any Holder furnished to the Issuer in writing
through the Initial Purchasers or any selling Holder expressly for use therein.
In connection with any Underwritten Offering permitted by Section 3, the
Obligors, jointly and severally, will also indemnify the Underwriters, if any,
selling brokers, dealers and similar securities industry professionals
participating in the distribution, their respective affiliates and each Person
who controls such Persons (within the meaning of the Securities Act and the
Exchange Act) generally to the same extent as provided above with respect to the
indemnification of the Holders, if requested in connection with any registration
statement.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Issuer, the Guarantors and the other selling Holders, their
respective affiliates, the directors of the Obligors, each officer of the
Obligors who signed the Shelf Registration Statement and each Person, if any,
who controls the Issuer, the Guarantors, the Initial Purchasers and any other
selling Holder within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the indemnity set forth in
paragraph (a) above, but only with respect to any losses, claims, damages or
liabilities that arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to such Holder furnished to the Issuer
in writing by such Holder expressly for use in the Shelf Registration Statement
and any Prospectus; provided, that the liability of each Holder hereunder shall
be limited to the proportion of any such losses, claims, damages and liabilities
which is equal to the proportion that the public offering price of the
Securities sold by such Holder under such registration statement bears to the
total public offering price of all Securities sold thereunder, but not to exceed
the net proceeds received by such Holder from the sale of Registrable Securities
covered by such registration statement.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnification may be sought pursuant to either
paragraph (a) or (b) above, such Person (the "Indemnified Person") shall
promptly notify the Person against whom such indemnification may be sought (the
"Indemnifying Person") in writing; provided that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have
under this Section 4 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and
provided, further, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person
otherwise than under this Section 4. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the Indemnified
Person and any others entitled to indemnification pursuant to this Section 4
10
that the Indemnifying Person may designate in such proceeding and shall pay the
reasonable fees and expenses of such counsel related to such proceeding, as
incurred. In any such proceeding, any Indemnified Person shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person unless (i) the Indemnifying Person and
the Indemnified Person shall have mutually agreed in writing to the contrary;
(ii) the Indemnifying Person has failed within a reasonable time to retain
counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified
Person shall have reasonably concluded that there may be legal defenses
available to it that are different from or in addition to those available to the
Indemnifying Person; or (iv) the named parties in any such proceeding (including
any impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood and agreed that the Indemnifying Person shall not, in connection with
any proceeding or related proceeding in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to any
local counsel) for all Indemnified Persons, and that all such fees and expenses
shall be reimbursed as they are incurred. Any such separate firm (x) for any
Holder, its affiliates, directors and officers and any control Persons of such
Holder shall be designated in writing by the Required Holders and (y) in all
other cases shall be designated in writing by the Issuer. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify each
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment, as required by paragraphs (a) and (b) of this Section 4.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person
shall have requested that an Indemnifying Person reimburse the Indemnified
Person for the reasonable fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by the Indemnifying Person of such
request; (ii) the Indemnifying Person shall not have reimbursed the Indemnified
Person in accordance with such request prior to the date of such settlement and
(iii) such Indemnified Person shall have given the Indemnifying Person at least
30 days prior written notice of its intention to settle. No Indemnifying Person
shall, without the written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnification could have
been sought hereunder by such Indemnified Person, unless such settlement
includes an unconditional release of such Indemnified Person, in form and
substance reasonably satisfactory to such Indemnified Person, from all liability
on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraphs (a) and (b)
above is unavailable to an Indemnified Person or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Obligors and the Holders from the issuance of the
Securities to the Initial Purchasers on the Closing Date (the benefit to the
Obligors being the proceeds received by them on the Closing Date from the
issuance of the Securities and the benefit to the Holders being the fees
received by them on the Closing Date in connection with the issuance of the
Securities), or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) but also the relative fault of the
Obligors on the one hand and the Holders on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Obligors on the one hand and the Holders on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Obligors or by
the Holders and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
11
(e) The Obligors and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 4 were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or payable by
a party as a result of the losses, claims, damages and liabilities referred to
in paragraph (d) above shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by such party
in connection with any such action or claim. Notwithstanding the provisions of
this Section 4, in no event shall a Holder be required to contribute any amount
in excess of the amount by which the total price at which the Securities sold by
such Holder exceeds the amount of any damages that such Holder has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. 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.
(f) The remedies provided for in this Section 4 are not exclusive
and shall not limit any rights or remedies that may otherwise be available to
any Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained in this
Section 4 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of the Initial Purchasers, their respective affiliates or any Person controlling
the Initial Purchasers, or by or on behalf of the Obligors, their respective
affiliates or the officers or directors of or any Person controlling the
Obligors and (iii) any sale of Registrable Securities pursuant to the Shelf
Registration Statement.
5. General.
(a) No Inconsistent Agreements. The Obligors represent, warrant and
agree that (i) the rights granted to the Initial Purchasers hereunder do not in
any way conflict with and are not inconsistent with the rights granted to the
holders of any other outstanding securities issued or guaranteed by the Issuer
or any Guarantor under any other agreement and (ii) neither the Issuer nor any
Guarantor has entered into, or on or after the date of this Agreement will enter
into, any agreement that is inconsistent with the rights granted to the Holders
of Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Obligors have obtained the written consent of
Holders of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or consent; provided that no amendment, modification, supplement, waiver
or consent to any departure from the provisions of Section 4 hereof shall be
effective as against any Holder of Registrable Securities unless consented to in
writing by such Holder. Any amendments, modifications, supplements, waivers or
consents pursuant to this Section 5(b) shall be by a writing executed by each of
the parties hereto.
12
(c) 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 any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Issuer by means of a notice given in accordance with the provisions of this
Section 5(c), which address initially is, with respect to the Initial
Purchasers, the address set forth in the Note Purchase Agreement; (ii) if to the
Obligors, initially at the Issuer's address set forth in the Note Purchase
Agreement and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 5(c); and (iii) to such other
persons at their respective addresses as provided in the Note Purchase Agreement
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 5(c). All such notices and communications
shall be deemed to have been duly given at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt is
acknowledged, if telecopied; and on the next Business Day if timely delivered to
an air courier guaranteeing overnight delivery. Copies of all such notices,
demands or other communications shall be concurrently delivered by the Person
giving the same to the Trustee, at the address specified in the Indenture.
(d) Rule 144. The Obligors covenant that (i) so long as the Issuer
and/or Holdings remains subject to the reporting provisions of the Exchange Act,
it or they, as applicable, will timely file the reports required to be filed by
them under the Securities Act or the Exchange Act (including, but not limited
to, the reports under Section 13 and 15(d) of the Exchange Act referred to in
subparagraph (c) of Rule 144 under the Securities Act), and (ii) they will take
such further action as any Holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such Holder to
sell Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by (A) Rule 144 under the Securities
Act, as such rule may be amended from time to time, or (B) any similar rule or
regulation hereafter adopted by the SEC.
(e) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and the
respective successors, personal representatives and assigns of the parties
hereto, whether so expressed or not, so long as such successors, personal
representatives and assigns are members of the GSMP Group. If a member of the
GSMP Group shall acquire Registrable Securities from any Holder, in any manner,
whether by operation of law or otherwise, such Person shall promptly notify the
Obligors, and such Registrable Securities acquired from such Holder shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities such Person shall be entitled to receive the
benefits of and be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement.
(f) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
(g) Jurisdiction. With respect to any suit, action or proceeding
("Proceeding") arising out of or relating to this Agreement each of the parties
hereto hereby irrevocably (i) submits to the exclusive jurisdiction of the
United States District Court for the Southern District of New York, the United
States District Court for the District of Delaware, or any state court located
in the State of Delaware, County of Newcastle (the "Selected Courts") and waives
any objection to venue being laid in the Selected Courts whether based on the
grounds of forum non-conveniens or otherwise and hereby agrees not to commence
any such Proceeding other than before one of the Selected Courts; provided,
however, that a party may commence any Proceeding in a court other than a
Selected Court solely for the purpose of enforcing an order or judgment issued
by one of the Selected Courts and (ii) consents to service of process in any
Proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, or by recognized international express carrier or delivery
service, to the parties at their respective addresses referred to in Section
5(c) hereof; provided, however, that nothing herein shall affect the right of
any party hereto to serve process in any other manner permitted by law.
13
(h) WAIVER OF TRIAL BY JURY. WITH RESPECT TO ANY PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY, TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE
WAIVED, WAIVE, AND COVENANT THAT THEY WILL NOT ASSERT (WHETHER AS PLAINTIFF,
DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING IN
WHOLE OR IN PART UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE
CONTEMPLATED TRANSACTIONS, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AND AGREE THAT ANY OF THEM MAY
FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING,
VOLUNTARY AND BARGAINED-FOR AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE ITS
RIGHT TO TRIAL BY JURY IN ANY PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO
THIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS WILL INSTEAD BE TRIED IN
A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
(i) Specific Performance. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with its specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions and other equitable remedies to prevent breaches of
this Agreement and to enforce specifically the terms and provisions hereof in
any of the Selected Courts, this being in addition to any other remedy to which
they are entitled at law or in equity. Any requirements for the securing or
posting of any bond with respect to such remedy are hereby waived by each of the
parties hereto. Each party further agrees that, in the event of any action for
an injunction or other equitable remedy in respect of such breach or enforcement
of specific performance, it will not assert the defense that a remedy at law
would be adequate.
(j) Other Acts. Each party hereto shall do and perform or cause to
be done and performed all such further acts and things and shall execute and
deliver all such other agreements, certificates, instruments, and documents as
any other party hereto reasonably may request in order to carry out the intent
and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(k) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(l) Headings. The headings in this Agreement are for convenience of
reference only, are not a part of this Agreement and shall not limit or
otherwise affect the meaning hereof.
(m) Miscellaneous. This Agreement contains the entire agreement
between the parties relating to the subject matter hereof and supersedes all
oral statements and prior writings with respect thereto. If any term, provision,
covenant or restriction contained in this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable or against public
policy, the remainder of the terms, provisions, covenants and restrictions
contained herein shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. The Obligors and the Initial Purchasers shall
endeavor in good faith negotiations to replace the invalid, void or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, void or unenforceable
provisions.
14
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
TRINITY ACQUISITION LIMITED
By:______________________________
Name:
Title:
WILLIS GROUP HOLDINGS LIMITED
By:______________________________
Name:
Title:
WILLIS INVESTMENT UK HOLDINGS, LTD.
TA I LIMITED
TA II LIMITED
TA III LIMITED
TA IV LIMITED
WILLIS GROUP LIMITED
By: ______________________________
Name:
Title:
WILLIS NORTH AMERICA INC.
By:______________________________
Name:
Title:
[Signature Page - Registration Rights Agreement]
GSMP V ONSHORE INTERNATIONAL, LTD.
By:______________________________
Name:
Title:
GSMP V OFFSHORE INTERNATIONAL, LTD.
By:______________________________
Name:
Title:
GSMP V INSTITUTIONAL INTERNATIONAL, LTD.
By:______________________________
Name:
Title:
[Signature Page - Registration Rights Agreement]