<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 9, 1998
REGISTRATION STATEMENT NO. 333-57227
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
SCOTTISH ANNUITY & LIFE HOLDINGS, LTD.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
--------------
<TABLE>
<S> <C> <C>
CAYMAN ISLANDS 6311 NOT APPLICABLE
(STATE OR OTHER JURISDICTION (PRIMARY STANDARD (I.R.S. EMPLOYER
OF INCORPORATION OR INDUSTRIAL CLASSIFICATION CODE IDENTIFICATION NUMBER)
ORGANIZATION) NUMBER)
</TABLE>
UGLAND HOUSE, 113 SOUTH CHURCH STREET CT CORPORATION SYSTEM 1633 BROADWAY NEW
GEORGE TOWN, GRAND CAYMAN YORK, NEW YORK 10019 (212) 664-1666
CAYMAN ISLANDS, BRITISH WEST INDIES (Name, address, including zip code, and
(345) 949-2800 telephone number, including area code,
(Address, including zip code, and of agent for service)
telephone number, including area code,
of Registrant's principal executive
offices)
COPIES TO:
ROBERT L. ESTEP, ESQ. HENRY SMITH, ESQ. CRAIG B. BROD, ESQ.
JONES, DAY, REAVIS & MAPLES AND CALDER CLEARY, GOTTLIEB, STEEN &
POGUE P.O. BOX 309, UGLAND HAMILTON
2300 TRAMMELL CROW CENTER HOUSE GEORGE TOWN, GRAND ONE LIBERTY PLAZA
2001 ROSS AVENUE CAYMAN NEW YORK, NEW YORK 10006
DALLAS, TEXAS 75201 CAYMAN ISLANDS, BWI (212) 225-2000
(214) 220-3939 (345) 949-8066
--------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [_]
--------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION--DATED OCTOBER 9, 1998
PROSPECTUS
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16,750,000 Shares
SCOTTISH ANNUITY & LIFE HOLDINGS, LTD.
Ordinary Shares
- --------------------------------------------------------------------------------
All of the 16,750,000 ordinary shares, par value $0.01 per share (the "Ordinary
Shares"), offered hereby (the "Offering") are being sold by Scottish Annuity &
Life Holdings, Ltd., a Cayman Islands company (the "Company"). Prior to the
Offering, the Company has not conducted any business and there has been no
public market for the Ordinary Shares. The initial public offering price will
be $15.00 per Ordinary Share.
Application has been made to include the Ordinary Shares for quotation in The
Nasdaq Stock Market's National Market (the "Nasdaq National Market") under the
symbol "SCTLF."
The Ordinary Shares offered hereby are subject to limitations on ownership,
transfers and voting rights which, among other things, generally prevent
transfers that would result in any holder beneficially owning 10% or more of
the Ordinary Shares of the Company (other than as described herein), require
divestiture of Ordinary Shares to reduce the beneficial ownership of any holder
to less than 10% of the Ordinary Shares of the Company and reduce the voting
power of any holder beneficially owning 10% or more of the Ordinary Shares of
the Company to less than 10% of the total voting power of the Company's issued
shares. See "Description of Shares."
SEE "RISK FACTORS" ON PAGES 9 TO 20 FOR A DISCUSSION OF CERTAIN MATERIAL
FACTORS THAT SHOULD BE CONSIDERED IN CONNECTION WITH AN INVESTMENT IN THE
ORDINARY SHARES OFFERED HEREBY.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Underwriting
Price to Discounts and Proceeds to
Public Commissions(1) Company(2)
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Per Ordinary Share....................... $ $ $
- --------------------------------------------------------------------------------------------
Total(3)................................. $ $ $
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
</TABLE>
(1)The Company has agreed to indemnify the several Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933, as
amended (the "Securities Act"). See "Underwriting."
(2)Before deducting certain advisory fees and Offering expenses payable by the
Company estimated to be $2.5 million. See "Underwriting."
(3)The Company has granted the several Underwriters a 30-day over-allotment
option to purchase up to 2,512,500 additional Ordinary Shares on the same
terms and conditions as set forth above. If all such additional Ordinary
Shares are purchased by the Underwriters, the total Price to Public will be
$ , the total Underwriting Discounts and Commissions will be $ and
the total Proceeds to Company will be $ . See "Underwriting."
- --------------------------------------------------------------------------------
The Ordinary Shares are offered by the several Underwriters subject to delivery
by the Company and acceptance by the Underwriters, to prior sale and to
withdrawal, cancellation or modification of the offer without notice. Delivery
of the Ordinary Shares to the Underwriters is expected to be made through the
facilities of The Depository Trust Company, New York, New York, on or about
, 1998.
PRUDENTIAL SECURITIES INCORPORATED
, 1998
<PAGE>
ENFORCEABILITY OF CIVIL LIABILITIES
UNDER UNITED STATES FEDERAL SECURITIES LAWS
The Company is organized pursuant to the laws of the Cayman Islands. In
addition, certain of the directors and officers of the Company, as well as
certain of the experts named herein, reside outside the United States, and all
or a substantial portion of their assets and the assets of the Company are or
may be located in jurisdictions outside the United States. In particular,
Scottish Annuity & Life Insurance Company (Cayman), Ltd., the Company's only
subsidiary, through which the Company expects to conduct all its operations,
is also a Cayman Islands company. Therefore, it may be difficult for investors
to effect service of process within the United States upon such persons or to
recover against the Company or such persons on judgments of courts in the
United States, including judgments predicated upon the civil liability
provisions of the United States federal securities laws. However, the Company
may be served with process in the United States with respect to actions
against it arising out of or in connection with violations of United States
federal securities laws relating to offers and sales of Ordinary Shares made
hereby by serving CT Corporation System, 1633 Broadway, New York, New York
10019, its United States agent irrevocably appointed for that purpose.
The Company has been advised by Maples and Calder, its Cayman Islands
counsel, that there is doubt as to whether the courts of the Cayman Islands
would enforce (i) judgments of United States courts obtained in actions
against the Company or its directors and officers, as well as the experts
named herein, who reside outside the United States predicated upon the civil
liability provisions of the United States federal securities laws, or
(ii) original actions brought in the Cayman Islands against the Company or
such persons predicated solely upon United States federal securities laws. The
Company has also been advised by Maples and Calder that there is no treaty in
effect between the United States and the Cayman Islands providing for such
enforcement, and there are grounds upon which the Cayman Islands courts may
not enforce judgments of United States courts. Certain remedies available
under the laws of United States jurisdictions, including certain remedies
available under the United States federal securities laws, may not be allowed
in the Cayman Islands courts as contrary to that nation's public policy.
THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER, INVITATION OR SOLICITATION TO
ANY MEMBER OF THE PUBLIC IN THE CAYMAN ISLANDS TO SUBSCRIBE FOR ANY OF THE
ORDINARY SHARES.
CERTAIN PERSONS PARTICIPATING IN THE OFFERING MAY ENGAGE IN TRANSACTIONS THAT
STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE ORDINARY SHARES,
INCLUDING PURCHASES OF THE ORDINARY SHARES TO STABILIZE THEIR MARKET PRICE,
PURCHASES OF THE ORDINARY SHARES TO COVER SOME OR ALL OF A SHORT POSITION IN
THE ORDINARY SHARES MAINTAINED BY THE UNDERWRITERS AND THE IMPOSITION OF
PENALTY BIDS. FOR A DESCRIPTION OF THESE ACTIVITIES, SEE "UNDERWRITING."
2
<PAGE>
ADDITIONAL INFORMATION
The Company has filed a Registration Statement on Form S-1, of which this
Prospectus is a part (the "Registration Statement"), with the United States
Securities and Exchange Commission (the "Commission") under the Securities
Act, with respect to the Ordinary Shares offered hereby. This Prospectus does
not contain all the information set forth in the Registration Statement and
the exhibits thereto. For further information with respect to the Company and
the Ordinary Shares offered hereby, reference is made to the Registration
Statement, including the exhibits filed therewith. Statements made in this
Prospectus as to the contents of any contract, agreement or other document are
not necessarily complete, and, in each instance, reference is made to the copy
of such document filed as an exhibit to the Registration Statement. Each such
statement shall be deemed qualified in its entirety by such reference.
Upon completion of the Offering, the Company will be subject to the
informational reporting requirements of the Securities Exchange Act of 1934,
as amended (the "Exchange Act") and, in accordance therewith, will file
reports, proxy and information statements and other information with the
Commission. The Registration Statement, and the exhibits forming a part
thereof, as well as such reports, proxy and information statements and other
information may be inspected and copied at the public reference section
maintained by the Commission at 450 Fifth Street N.W., Washington, D.C.
20549-1004 and at the following regional offices of the Commission: Seven
World Trade Center, Suite 1300, New York, New York 10048, and Citicorp Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of
such materials can be obtained from the public reference section of the
Commission at its Washington address at prescribed rates. The Commission also
maintains an Internet web site at http://www.sec.gov that contains reports,
proxy and information statements and other information regarding issuers, such
as the Company, that file electronically with the Commission.
After giving effect to the Offering, the Company will be treated as a
domestic corporation for purposes of certain requirements of the Exchange Act,
including the proxy rules. Pursuant to Rule 3b-4 under the Exchange Act, a
"foreign private issuer" is a non-United States issuer other than an issuer
that meets the following conditions: (1) more than 50% of the outstanding
voting securities of the issuer are held of record by residents of the United
States and (2) any of the following: (i) the majority of the executive
officers or directors of the issuer are United States citizens or residents,
(ii) more than 50% of the assets of the issuer are located in the United
States or (iii) the business of the issuer is administered principally in the
United States. By virtue of (1) and (2) (i), the Company does not expect that
it will be a "foreign private issuer," although there is no assurance of such.
If the Company were to be treated as a "foreign private issuer," it would be
exempted from the proxy and short-swing profit rules under Sections 14 and 16
of the Exchange Act and, for reporting purposes under the Exchange Act, would
be subject to rules applicable to "foreign private issuers."
The Company intends to furnish its shareholders with annual reports
containing financial statements audited by an independent accounting firm and
quarterly reports containing unaudited financial statements for the first
three quarters of each fiscal year.
3
<PAGE>
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by, and should be read in
conjunction with, the more detailed information and the balance sheet,
including the notes thereto, included elsewhere in this Prospectus. Unless the
context otherwise requires, references herein to the "Company" mean Scottish
Annuity & Life Holdings, Ltd., a Cayman Islands company ("Holdings"), together
with its wholly-owned subsidiary, Scottish Annuity & Life Insurance Company
(Cayman), Ltd., a Cayman Islands insurance company ("Scottish Insurance"),
through which Holdings expects to conduct all of its operations. Holdings and
Scottish Insurance were incorporated on May 12, 1998 and June 3, 1998,
respectively, in the Cayman Islands and neither has any operating history.
Scottish Insurance was licensed in the Cayman Islands on July 8, 1998 as an
unrestricted Class B insurer, which license authorizes it to write variable
life insurance and annuity and life reinsurance. See "Glossary of Selected Life
Insurance and Annuity Terms" for definitions of certain terms used in this
Prospectus. In this Prospectus, amounts are expressed in United States dollars
and the balance sheet contained herein has been prepared in accordance with
United States generally accepted accounting principles ("GAAP"). Unless
otherwise noted, this Prospectus assumes that the Underwriters' over-allotment
option will not be exercised.
THE COMPANY
Holdings and Scottish Insurance were recently formed as offshore companies
principally to provide customized variable life insurance products to high net
worth individuals and families and reinsurance of in-force blocks of fixed
annuities and similar contracts to insurers no longer actively offering such
products or otherwise seeking to more efficiently manage capital allocated to
existing businesses. In addition to its primary focus, the Company may reinsure
in-force blocks of other types of annuity contracts and life insurance
products. The Company believes that the favorable regulatory environment in
which it will operate, its planned low cost operating strategy and the absence
of a corporate level tax in the Cayman Islands will enable it to become a
leading offshore provider of variable life insurance and fixed annuity
reinsurance products in its target markets.
The Company's variable life insurance business seeks to respond to what the
Company believes are increasing demands of high net worth individuals and
families (generally individuals and families with a liquid net worth in excess
of $10.0 million) for customized life insurance products that can be utilized
as part of sophisticated estate planning strategies. The Company's variable
life insurance products offer both a specified death benefit as well as a cash
value component which is placed in a separate account and invested on behalf of
the policyholder by a money manager. Because of the Company's domicile and
target customers, the Company can offer policies that permit private
independent money managers to manage a policy's separate account utilizing
investment strategies not typically available in policies issued to the general
public. The Company will also seek to leverage its expertise with respect to
variable life insurance products by offering structured life insurance
products, such as corporate-owned life insurance ("COLI"), which target the
deferred compensation market.
The Company's reinsurance business seeks to focus on what the Company
believes are meaningful opportunities to reinsure lines of business that are
subject to significant reserve or risk capital requirements under rating agency
requirements and applicable accounting standards. The Company believes that, in
response to heightened regulatory and rating agency scrutiny, insurers are
increasingly seeking reinsurance of in-force blocks of annuity and life
insurance business as a means to improve earnings or risk-based capital or
other financial ratios. The Company's reinsurance business will target
insurance companies that have discontinued writing such business or that seek
relief from the reserve and capital requirements associated with such business.
The Company's reinsurance activities will focus principally on opportunities in
the U.S., although the Company also expects to target opportunities in the
United Kingdom, Western Europe, Canada and Australia.
The principal focus of the Company's reinsurance activities will be on blocks
of in-force fixed annuity contracts such as structured settlements, single
premium deferred annuities, immediate annuities and similar
4
<PAGE>
contracts. The Company intends to focus on the reinsurance of these annuities
because it believes that the reserve and capital requirements associated with
fixed annuities has made reinsurance of such annuities an attractive option for
issuers and reinsurers of those products and because the market for such
reinsurance is not currently well-developed. In addition, the Company expects
that it may also reinsure various forms of life insurance products, including
universal, variable and whole life insurance, and variable annuity contracts if
and when attractive opportunities become available. The Company believes that
reinsurance of these products will enable it to more effectively capitalize on
potential relationships with other insurers and reinsurers.
BUSINESS STRATEGY
In order to achieve its objective to become a leading offshore provider of
variable life insurance and fixed annuity reinsurance products in its target
markets, the Company intends to utilize a business strategy with the following
principal components:
LEVERAGE MANAGEMENT EXPERTISE
The Company was organized by the management and shareholders of The Scottish
Annuity Company (Cayman) Ltd. ("Scottish Annuity"). In 1994, the Company's
Chairman and Chief Executive Officer, Michael C. French founded Scottish
Annuity, a privately held Cayman Islands insurance company, to provide to high
net worth individuals and families variable annuity contracts that have the
same cash value management features, and the same target market, as the
Company's variable life insurance policies. In addition, Mr. French was a
founder of Maverick Capital, Ltd. ("Maverick"), an investment management
company organized in 1993 with approximately $2.5 billion of assets under
management as of October 1, 1998. Since 1995, Michelle L. Boucher, the
Company's Senior Vice President, Chief Financial Officer and Secretary, has
been Manager of Finance and Administration for Scottish Annuity. The Company
intends to draw on Mr. French's and Ms. Boucher's experience in developing
Scottish Annuity's variable annuity products and business to develop the
Company's variable life insurance products and business. Also, the Company
intends to build on the relationships with potential clients as well as
intermediaries and other referral sources that Mr. French and Ms. Boucher have
developed with Scottish Annuity. Henryk Sulikowski, the Company's Senior Vice
President and Chief Insurance Officer, has over 17 years experience in the
insurance and reinsurance industry. Prior to joining the Company, Mr.
Sulikowski was a Director of Swiss Re New Markets Corporation ("Swiss Re New
Markets"), responsible for developing, structuring and marketing annuity and
life reinsurance transactions. Prior to his tenure with Swiss Re New Markets,
Mr. Sulikowski was Vice President in charge of annuity and life financial
reinsurance activities at Cologne Life Reinsurance Company ("Cologne Re"). Mr.
Sulikowski has been an associate of the Society of Actuaries since 1986 and a
member of the American Academy of Actuaries since 1987. The Company intends to
draw on Mr. Sulikowski's experience and relationships with international
insurance brokers, insurance consultants, members of the actuarial profession
and senior insurance company executives to implement its reinsurance business
plan. See "Management--Executive Officers and Directors."
UTILIZE THIRD PARTY SERVICE PROVIDERS
The Company believes that prospective purchasers of variable life insurance
products are price-sensitive and that insurers seeking reinsurance focus
principally on price in selecting a reinsurer. As a result, the Company is
pursuing a low cost operating strategy. In order to minimize its initial
investment in systems and personnel and to create and maintain a low cost
operating structure, the Company has entered into agreements with a number of
third party service providers to provide key services to the Company. The
Company has retained Westport Worldwide Bermuda, Ltd. ("Westport"), a developer
and administrator of insurance products for international insurance brokers,
insurance companies and corporations and an affiliate of Westport Worldwide, to
provide non-exclusive distribution services to its variable life insurance
business, as well as certain related administrative services from time to time,
including monitoring tax law compliance and preparing policy illustrations. The
Company has also retained International Risk Management (Cayman) Ltd. ("IRM
Cayman"), a member company of International Risk Management Group, Inc.
("IRMG"), an affiliate of Swiss Reinsurance,
5
<PAGE>
to act as the Company's licensed insurance manager in the Cayman Islands and to
provide to the Company certain additional administrative services. According to
IRM Cayman, IRMG is the largest independent captive insurance manager in the
world today operating out of 20 offices in North America, Europe, Australia,
Africa and Asia. In addition, the Company has retained Milliman & Robertson, a
leading actuarial consulting firm, to provide from time to time certain
actuarial services, including pricing and reinsurance analysis. The Company has
also retained Pacific Investment Management Company ("PIMCO") and General Re-
New England Asset Management, Inc. ("General Re"), two of the largest fixed
income investment managers in the U.S., to manage the Company's investment
portfolio consistent with the investment guidelines established by the Company
(the "Investment Guidelines"). See "Business--Administration and Consulting
Services," and "--Investment Portfolio--Investment Managers."
BUILD ON SIGNIFICANT CAPITAL BASE
Upon consummation of the Offering, the Company will have an equity
capitalization of approximately $234.6 million. The Company believes that this
level of capitalization will demonstrate a strong financial position and a high
level of commitment to potential clients and the variable life insurance and
reinsurance marketplace and is necessary in establishing it as a competitive
insurance company. The Company does not anticipate that it will incur any
material indebtedness in the ordinary course of its business other than
possibly obtaining letters of credit in connection with its reinsurance
contracts. The Company should also benefit from the fact that, as a recently
formed entity, its capital is presently unencumbered by issues such as reserve
adequacy, unrealized losses in its investment portfolio and uncollectible
reinsurance. In part because of the Company's expected capitalization following
the Offering, Duff & Phelps Credit Rating Co. ("Duff & Phelps") has assigned
Scottish Insurance a preliminary claims-paying ability rating of "A" and
has assigned Scottish Insurance a preliminary rating of
. Duff & Phelps assigns an "A" rating to companies that it
characterizes as having, in its opinion, high claims-paying ability, average
protection factors and an expectation of variability in risk over time due to
economic or underwriting conditions. The "A" rating assigned to Scottish
Insurance by Duff & Phelps is contingent on the Company raising gross proceeds
of at least $200.0 million in the Offering. assigns an
rating to companies that have, in its opinion, on balance, excellent financial
strength, operating performance and market profile, as well as strong abilities
to meet their ongoing obligations to policyholders. The rating
assigned to Scottish Insurance by is contingent on the consummation of
the Offering. Each rating represents the respective rating agency's opinion of
the Company's ability to meet its obligations to its policyholders.
APPLY PRUDENT RISK MANAGEMENT POLICY
The principal risk associated with the Company's variable life insurance
policies is mortality risk. Mortality risk tends to be more stable when spread
across large numbers of insureds. The Company's variable life insurance
policies are expected to be placed with a relatively small number of high net
worth policyholders and to provide substantial death benefits given expected
initial premiums of at least $1.0 million for single premium policies and
$500,000 for multiple premium policies. As a consequence, the Company's
associated mortality risk exposure is likely to be greater in the aggregate,
and its probability of loss less predictable, than an insurer with a broader
risk pool. As a result, the Company intends to allocate a significant portion
of its capital, in addition to any policy reserves required under GAAP and any
additional Cayman Islands regulatory requirements, to cover possible volatility
in mortality experience. The Company's current Underwriting Guidelines limit
the maximum aggregate net amount at risk the Company will initially assume on
any one life to $500,000. In order to comply with this guideline, the Company
intends to reinsure any liability for amounts in excess of $500,000 per
insured.
The principal risk associated with the Company's fixed annuity reinsurance
activities is investment risk. Specifically, the Company is subject to (i)
asset value risk, which is the risk that invested assets supporting the
reinsured business will decrease in value, (ii) reinvestment risk, which is the
risk that interest rates will decline
6
<PAGE>
and funds reinvested will earn less than is necessary to match anticipated
liabilities, and (iii) disintermediation risk, which is the risk that the
Company may have to sell assets at a loss to provide for policyholder
withdrawals or to satisfy liabilities not otherwise properly matched. As part
of its reinsurance activities, the Company may also reinsure in-force blocks of
life insurance. The principal risk associated with the reinsurance of life
insurance is mortality risk. The Company believes that one of the benefits to
it resulting from the reinsurance of life insurance policies covering broad
pools of insureds is that the Company's mortality risk on such reinsurance will
be spread over a larger insured population than will be the case with respect
to its variable life insurance policies. To the extent the Company reinsures
variable annuity contracts, the principal risk reinsured will be surrender
risk, a risk which is also associated with the reinsurance of fixed annuities
and life insurance. An additional risk associated with the Company's
reinsurance business is the risk that the ceding insurer will be unable to pay
amounts due the Company because of its own financial difficulties. The Company
believes this risk can be mitigated by conducting an appropriate financial due
diligence review of each cedent.
The Company will establish policy reserves and allocate risk capital in
accordance with actuarial standards of practice, GAAP accounting requirements
and any additional Cayman Islands regulatory requirements in an effort to
reflect the level of investment, mortality, surrender and other risks
associated with the annuities and life insurance it will reinsure.
EMPLOY PROFESSIONAL INVESTMENT STRATEGY
The Company will seek to generate attractive levels of investment income
through a professionally managed fixed income investment portfolio. The Company
has entered into investment advisory agreements with PIMCO and General Re (the
"Investment Managers") to manage initially approximately % and %,
respectively, of the Company's investment portfolio. The Company may also
retain other investment managers from time to time. Each Investment Manager
will have discretionary authority over the portion of the Company's investment
portfolio allocated to it, subject to the Investment Guidelines. The Company's
investment portfolio (exclusive of assets transferred and invested as part of
any coinsurance transaction) will principally consist of fixed income
securities with a weighted average investment rating of "A." Consistent with
the Investment Guidelines, no more than 15% of the Company's investment
portfolio will be invested in below investment grade fixed income securities.
The Company's principal executive office is located at Ugland House, 113
South Church Street, George Town, Grand Cayman, Cayman Islands, British West
Indies, and its telephone number is (345) 949-2800.
7
<PAGE>
THE OFFERING
<TABLE>
<C> <S>
Ordinary Shares Offered Hereby.................. 16,750,000 Ordinary Shares
Ordinary Shares to be Outstanding after the
Offering(1).................................... 18,250,000 Ordinary Shares
Use of Proceeds................................. Substantially all of the net
proceeds will be contributed
to Scottish Insurance to
support its insurance and
reinsurance activities. See
"Use of Proceeds."
Proposed Nasdaq National Market Symbol.......... SCTLF
</TABLE>
- --------
(1) Scottish Holdings, Ltd., a Cayman Islands company ("SHL"), owns 1,500,000
Ordinary Shares, which constitute all of the currently outstanding Ordinary
Shares of the Company. Prior to the consummation of the Offering, SHL will
distribute such Ordinary Shares to its stockholders (the "SHL
Distribution"). The SHL Distribution is being made to eliminate the top
tier of a multi-tier holding company structure. Ordinary Shares to be
outstanding after the Offering excludes 1,550,000 Ordinary Shares issuable
upon exercise of Class A Warrants, 200,000 Ordinary Shares issuable upon
exercise of Class B Warrants, 1,020,000 Ordinary Shares issuable upon
exercise of options granted to management and to be granted to non-employee
Directors and a consultant of the Company upon consummation of the Offering
and 980,000 Ordinary Shares reserved for future issuance pursuant to the
Company's Amended and Restated 1998 Stock Option Plan (the "Stock Option
Plan"). In addition, Ordinary Shares to be outstanding after the Offering
excludes up to 750,000 Ordinary Shares issuable upon exercise of Class C
Warrants, if and to the extent such warrants are issued pursuant to the
Company's agreement with Westport. See "Business--Marketing" and
"Description of Shares--Warrants--Class C Warrants." If the Underwriters'
over-allotment option is exercised in full, upon consummation of the
Offering, 20,762,500 Ordinary Shares will be outstanding, and the number of
Ordinary Shares issuable upon exercise of options granted to management and
to be granted to non-employee Directors and a consultant of the Company
upon consummation of the Offering will increase to 1,170,000 Ordinary
Shares. The number of Ordinary Shares issuable upon exercise of the Class A
Warrants and the Class B Warrants will not change if the Underwriters'
over-allotment option is exercised in full. The Class A Warrants, Class B
Warrants and options are not currently exercisable. See "Description of
Shares--Warrants" and "--Options" and "Management--Stock Option Plan."
RISK FACTORS
Businesses such as the Company which are in their initial stages of
development present substantial business and financial risks and may suffer
significant losses for reasons not anticipated by management. In addition, the
Company's business plan has not been tested and may not succeed. Investors
should consider carefully the material risk factors involved in connection with
an investment in the Ordinary Shares and the impact to investors from various
circumstances which could adversely affect the Company's business, results of
operations or financial condition. See "Risk Factors."
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RISK FACTORS
An investment in the Ordinary Shares involves a high degree of risk.
Prospective investors should consider carefully the following risk factors, in
addition to the other information set forth in this Prospectus, in connection
with an investment in the Ordinary Shares.
When used in this Prospectus, the words "may," "will," "expect,"
"anticipate," "continue," "estimate," "project," "plan," "intend" and similar
expressions are intended to identify forward-looking statements regarding
among other things: (i) the Company's business and growth plans; (ii) the
Company's relationship with third-party service providers and clients; (iii)
the use of the net proceeds of the Offering; (iv) trends in the insurance and
reinsurance industries; (v) government regulations; (vi) trends that may
affect the Company's financial condition or results of operations; and (vii)
the declaration and payment of dividends. Prospective investors are cautioned
that any forward-looking statements are not guarantees of future performance
and are subject to risks and uncertainties and that actual results may differ
materially from those included within the forward-looking statements as a
result of various factors. Factors that could cause or contribute to such
differences include, but are not limited to, those described below and under
the heading "Management's Discussion and Analysis of Financial Condition and
Plan of Operations" and elsewhere in this Prospectus.
START UP OPERATIONS; RELIANCE ON THIRD PARTY SERVICE PROVIDERS. Holdings and
Scottish Insurance were formed on May 12, 1998 and June 3, 1998, respectively,
and neither has any operating history. Businesses which are starting up or in
their initial stages of development present substantial business and financial
risks and may suffer significant losses. They must successfully develop
business relationships, establish operating procedures, hire staff and
complete other tasks appropriate for the conduct of their intended business
activities. Furthermore, the Company initially intends to have only a limited
staff and to outsource many functions, including certain administrative,
regulatory, actuarial, reinsurance and underwriting functions. The Company has
retained Westport, IRM Cayman, Milliman & Robertson, PIMCO and General Re to
provide services to the Company. Scottish Insurance will be dependent upon the
quality of the services provided by such firms. The inability of Scottish
Insurance to retain qualified service providers or the failure of such outside
service providers to perform adequately their functions could delay or prevent
the Company from fully implementing its business plan or could otherwise
adversely affect the Company. Scottish Insurance has retained Henryk
Sulikowski as its Senior Vice President and Chief Insurance Officer and
intends to hire additional personnel to provide administrative and
underwriting support. Such individuals will be critical components of the
Company's operations. There can be no assurance that the Company will be
successful in attracting or employing the personnel that it is seeking, and if
it is unable to do so, such failure could delay or prevent the Company from
fully implementing its business plan. See "Business--Administration and
Consulting Services" and "Management--Executive Officers and Directors."
ABILITY TO IMPLEMENT ITS BUSINESS PLAN.
General. The Company's business plan is focused principally on entering the
variable life insurance and fixed annuity reinsurance businesses. The
Company's ability to successfully implement this plan is dependent on, among
other things, the Company's ability to (i) in the case of its variable life
insurance business, attract clients principally through referrals by financial
advisors, investment managers, private bankers, attorneys and other
intermediaries in the United States who will not be compensated by the Company
for any activities undertaken in the U.S., (ii) in the case of its fixed
annuity and other reinsurance businesses, to generate business primarily
through its Senior Vice President and Chief Insurance Officer's relationships
with international insurance brokers, insurance consultants, members of the
actuarial profession and senior insurance company executives, (iii) develop
and effectively implement underwriting and investment policies appropriate for
the risks associated with its insurance and reinsurance products, (iv)
maintain a competitive claims-paying ability rating, (v) attract clients
through referrals from Scottish Annuity and (vi) effectively manage growth in
the Company's businesses.
Variable Life Insurance Business. Because neither Holdings nor Scottish
Insurance will be licensed or registered to do business in any jurisdiction in
the U.S., no intermediary, whether U.S. or foreign, who provides
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referrals or otherwise directs business to the Company may receive commissions
or other remuneration from the Company for activities undertaken in the U.S.
As a result of such limitation, no assurance can be given that the Company
will be able to effectively implement its insurance and reinsurance plans. The
Company, however, may from time to time provide commissions or other
remuneration to non-U.S. referral sources for activities undertaken outside
the U.S. Other than in connection with certain agreements between the Company
and each of Westport and Scottish Annuity, the Company has no current
arrangements with respect to any such referral sources, although the Company
expects that such referral sources will likely be compensated based on a
percentage of the revenue derived from such referrals. Although the Company
currently has no contractual or other arrangement with any referral source
other than with Westport and Scottish Annuity, the Company, subject to any
applicable regulatory limitations, may provide referrals to persons or
entities that provide it with referrals.
Fixed Annuity Reinsurance Business. The Company's business plan provides
that Scottish Insurance will principally focus its reinsurance activities on
reinsuring blocks of in-force fixed annuities such as structured settlements,
single premium deferred annuities, immediate annuities and similar contracts
which are issued by insurers who are no longer actively writing such annuities
or similar contracts or who are seeking relief from the reserve and capital
requirements associated with such contracts. The Company believes that this
market is largely undeveloped and no assurance can be given that such market
will develop or if it develops, whether such market will be substantial enough
to support Scottish Insurance's reinsurance business, particularly to the
extent such contracts have been issued by insurers no longer actively writing
new fixed annuity contracts. Also, Scottish Insurance expects that a portion
of any block of fixed annuities that it reinsures will be surrendered or
otherwise terminated each year, a risk that Scottish Insurance will take into
account when negotiating prices for its reinsurance products. No assurance can
be given, however, that Scottish Insurance will be successful in negotiating
prices that actually take into account such risk or that as such fixed
annuities or similar contracts are surrendered, terminate or expire, Scottish
Insurance will have sufficient reinsurance business to sustain its growth or
that there will be sufficient reinsurance business in the Company's target
market to replace such fixed annuities or similar contracts. In addition, the
Company expects to seek to enter into retrocessional arrangements for certain
risks associated with its reinsurance business; however, the Company currently
does not have any such arrangements in place and no assurances can be given
that such arrangements will be available when the Company will need them and
if available, as to what terms the Company will be able to obtain such
arrangements.
Other Reinsurance Businesses. In addition to its primary focus on the
reinsurance of fixed annuities, the Company expects that Scottish Insurance
may reinsure in-force blocks of life insurance and variable annuity contracts,
however, no assurance can be given that the Company will become aware of
attractive opportunities in these areas or if it becomes aware of such
opportunities, will be in a position to take advantage of them.
Underwriting and Investment Policies. Because of the risks associated with
its variable life insurance and reinsurance businesses (e.g., mortality,
investment and surrender risk), the Company's underwriting and investment
policies must be tailored to adequately protect the Company against such
risks. No assurance, however, can be given that the Company will be successful
in developing or implementing such policies or that such policies will be
effective.
Third Party Service Providers. No assurance can be given that third party
service providers retained by the Company will provide services in accordance
with the Company's underwriting, investment and other policies or that such
services will be performed adequately.
Maintenance of Claims-Paying Ability Rating. Insurance ratings are used by
prospective purchasers of insurance policies as well as insurers, reinsurers
and insurance and reinsurance intermediaries as an important means of
assessing the financial strength and quality of insurers and reinsurers. In
addition, the rating of a company purchasing reinsurance may be adversely
affected by an unfavorable rating or the lack of a rating of its reinsurer.
The Company has received a preliminary claims-paying ability rating of "A"
from Duff & Phelps and a preliminary rating of from . The Duff &
Phelps and ratings are contingent upon the consummation of the Offering,
with the Duff & Phelps rating also conditioned on the Company raising gross
proceeds of at least $200.0 million in the Offering. If the Company fails to
satisfy these
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conditions and consequently does not receive a final rating from Duff & Phelps
and/or , the Company's prospects would be adversely affected. See
"Business--Competition--Ratings." In addition, if final ratings are received,
no assurance can be given that the Company will be able to conduct its
operations such that the Company will be able to maintain its "A" claims-
paying ability rating from Duff & Phelps or its "A-" claims-paying ability
rating from or, if the Company is unable to maintain such ratings, to
obtain similar claims-paying ability ratings from other major rating agencies.
Scottish Annuity Referrals. No assurance can be given that Scottish Annuity
will provide the Company with any meaningful number of referrals or if
Scottish Annuity provides such referrals, that such referrals will result in
actual sales of the Company's variable life insurance policies.
Ability to Manage Growth. Growth in the Company's variable life insurance
and reinsurance businesses contemplated by its business plan may place
significant demands on the Company's management and its administrative and
financial resources. If the Company is unable to manage growth effectively,
the Company's business, results of operations and financial condition are
likely to be materially adversely affected.
EFFECT OF CHANGES IN U.S. TAX LAWS ON VARIABLE LIFE INSURANCE SALES. The
market for variable life insurance products in the United States is based in
large part on the favorable tax treatment these products receive relative to
certain other investment alternatives. Any material change in such tax
treatment, including the imposition of a "flat tax" or a national sales tax in
lieu of the current federal income tax structure in the United States, would
have an adverse effect on the market for variable life insurance products. The
current budget proposal submitted to the United States Congress by the Clinton
Administration includes certain provisions which, if not modified, could limit
the ability of policyholders to change private independent money managers from
time to time without triggering adverse tax consequences. If these proposed
tax changes were enacted into law, they could adversely affect the Company's
variable life insurance business. In addition, the Clinton budget proposal
contains a provision that would prevent all transfers to trusts from
qualifying for the annual present interest exclusion from the gift tax, even
if a beneficiary held a so-called "Crummey power" (or right of withdrawal). If
this proposal were enacted into law, the primary and most tax-efficient method
of funding premium payments by insurance trusts would be eliminated. Because
the Company expects that its variable life insurance will generally be
purchased by insurance trusts (or for contribution to insurance trusts) so as
to provide liquidity for estate taxes and to effect the tax-free transfer of
the proceeds from one generation to another, adoption of such proposal would
likely adversely affect sales of such policies and, as a consequence, would
likely have a material adverse effect on the Company's business, results of
operations and financial condition. In addition, COLI products have been
affected by recent changes in their tax treatment and any additional changes
in the tax laws that reduce or eliminate any remaining favorable tax treatment
for such products would likely have a material adverse effect on the market
for such products.
REGULATION. Scottish Insurance, through which Holdings is expected to
conduct all of its business, is a Cayman Islands company licensed as an
unrestricted Class B insurer and is subject to regulation and supervision by
the Cayman Islands Monetary Authority (the "Cayman Monetary Authority").
Neither Scottish Insurance nor Holdings will be registered or licensed to do
business in any jurisdiction in the United States or any other country. The
insurance laws of each state in the United States and in most other countries
in which the Company would likely conduct business regulate the sale of
insurance and reinsurance within their jurisdiction by insurers, such as
Scottish Insurance, that are not admitted to do business within such
jurisdiction. With some exceptions, the sale of insurance within a
jurisdiction where the insurer is not admitted to do business is prohibited.
Scottish Insurance is expected to conduct its business through its executive
offices in the Cayman Islands and will not maintain an office, and its
personnel will not solicit, advertise, settle claims or conduct other
insurance activities, in the United States or, to the extent prohibited, in
any other countries. Substantially all of the Company's variable life
insurance clients are expected to be obtained through referrals by financial
advisors, investment managers, private bankers, attorneys and other
intermediaries in the United States, none of whom may receive any commissions
or other remuneration from Scottish Insurance for activities undertaken in the
U.S. Substantially all of the Company's reinsurance business is expected to be
generated primarily through its Chief
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Insurance Officer's relationships with international insurance brokers,
insurance consultants, members of the actuarial profession and senior
insurance company executives, none of whom may receive any commissions or
other remuneration from Scottish Insurance for any activities undertaken in
the U.S. In addition, all insurance contracts of Scottish Insurance are
expected to be negotiated, executed and delivered, and all premiums are
expected to be received, outside the United States. Accordingly, the Company
has received an opinion from its state insurance counsel, The Bernstein Law
Firm, that Scottish Insurance will not be subject to the insurance laws of any
state of the United States. To the extent that the Company is subject to
similar restrictions in jurisdictions outside the U.S., the Company will
develop operating guidelines designed to facilitate the Company's compliance
with such restrictions. See "Business--Regulation." There can be no assurance,
however, that inquiries or challenges to the insurance activities of Scottish
Insurance will not be raised in the future. The Company has structured its
business and expects to conduct its operations in the manner described above
in order to allow the Company to provide its clients with variable life
insurance products which have customized features that would not typically be
available from a company subject to such laws. If the Company were to become
subject to such laws, its business, results of operations and financial
condition would likely be materially adversely affected.
From time to time, there have been congressional and other initiatives in
the United States regarding the supervision and regulation of the insurance
industry, including proposals to supervise and regulate alien insurers to a
greater extent than currently regulated. While none of these proposals has
been adopted to date on either the federal or state level, there can be no
assurance that federal or state legislation will not be enacted subjecting
Holdings or Scottish Insurance to supervision and regulation in the United
States.
In addition, because many jurisdictions do not permit insurance companies to
take credit for reinsurance obtained from unlicensed or non-admitted insurers
on their statutory financial statements unless appropriate security measures
are in place, it is anticipated that the Company's reinsurance clients will
typically require it to post a letter of credit or provide other collateral
through a funds withheld or trust arrangement. If the Company is unable to
obtain a letter of credit facility on commercially acceptable terms or is
unable to arrange for such other collateral, the Company's ability to operate
its reinsurance business will be severely limited.
RISKS ASSOCIATED WITH THE COMPANY'S PRODUCTS.
Variable Life Insurance--Mortality Risk. The principal risk associated with
the Company's variable life insurance policies will be mortality risk.
Mortality risk tends to be more stable when spread across large numbers of
insureds. The Company's variable life insurance policies are expected to be
placed with a relatively small number of high net worth policyholders and to
provide substantial death benefits given expected initial premiums of at least
$1.0 million for single premium policies and $500,000 for multiple premium
policies. As a consequence, the Company's associated mortality risk exposure
is likely to be greater in the aggregate, and its probability of loss less
predictable, than that of an insurer with a broader risk pool. As a result, no
assurance can be given that the Company's policy reserves will be adequate,
that assets will be properly matched to meet anticipated liabilities, that
assets will not need to be liquidated at substantial losses to meet such
liabilities or that, to the extent the Company seeks to reinsure such
mortality risk, such reinsurance will be available on commercially acceptable
terms or that such reinsurers will perform under their reinsurance agreements.
Fixed Annuity Reinsurance--Investment Risk. The principal risk associated
with the Company's fixed annuity reinsurance activities is investment risk.
Specifically, the Company is subject to (i) asset value risk, which is the
risk that invested assets supporting the reinsured business will decrease in
value, (ii) reinvestment risk, which is the risk that interest rates will
decline and funds reinvested will earn less than expected, and (iii)
disintermediation risk, which is the risk that the Company may have to sell
assets at a loss to provide for policyholder withdrawals. Although the Company
expects to reflect such investment risk in product pricing and in establishing
policy reserves, no assurance can be given that such reserves will be
adequate, that assets will be properly matched to meet anticipated liabilities
or that the Company's investments will provide sufficient returns to enable
the Company to satisfy its guaranteed fixed benefit obligations.
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Other Reinsurance Businesses--Mortality, Investment and Surrender Risk. The
Company expects that it will also potentially reinsure various forms of life
insurance products, including universal life insurance, variable life
insurance and traditional whole life insurance. The primary risk under life
insurance policies is mortality risk. The Company's Underwriting Guidelines
limit such risk to $500,000 per insured and the Company intends to reinsure,
or retrocede, any liability for amounts in excess of $500,000 per insured in
order to comply with such guidelines. Universal life insurance and similar
interest rate-sensitive policies provide life insurance with adjustable rates
of return based on applicable interest rates in effect from time to time. As a
consequence, the risks reinsured by the Company may also include investment
risks similar to those for fixed annuities. In addition, like annuities, life
insurance policies are subject to surrender risk. The Company may also
reinsure variable annuities. The principal risk reinsured by the Company with
respect to these annuities is surrender risk.
Reinsurance Business--Ceding Insurer Risk. An additional risk associated
with the Company's reinsurance business is the risk that the ceding insurer
will be unable to pay amounts due the Company because of its own financial
difficulties. No assurance can be given that such ceding insurers will be able
to pay amounts due to the Company or that such inability will not have a
material adverse effect on the Company's business, results of operations or
financial condition. In addition, no assurance can be given that ceding
companies will maintain appropriate interest crediting rates with respect to
fixed annuities or interest rate-sensitive life insurance policies.
RISKS ASSOCIATED WITH INVESTMENT ACTIVITIES. The Company's fixed income
investments will be subject to two primary sources of investment risk: credit
risk, relating to uncertainty associated with the continued ability of a given
obligor to make timely payments of principal and interest, and interest rate
risk, relating to the market price and/or cash flow variability associated
with changes in market interest rates. No assurance can be given that the
Company will be able to effectively manage such risks. If the Company is
unable to effectively manage such risks or otherwise effectively manage its
investment portfolio, the Company's ability to support its variable life
insurance and reinsurance businesses, and its results of operations and
financial condition, would be adversely affected.
In addition, the Investment Guidelines permit up to 15% of the Company's
investment portfolio to be invested in below investment grade fixed income
securities. While any investment carries some risk, the risks associated with
lower-rated securities are greater than the risks associated with investment
grade securities. The risk of loss of principal or interest through default is
greater because lower-rated securities are usually unsecured and are often
subordinated to an issuer's other obligations. Additionally, the issuers of
these securities frequently have high debt levels and are thus more sensitive
to difficult economic conditions, individual corporate developments and rising
interest rates which could impair an issuer's capacity or willingness to meet
its financial commitment on such lower-rated securities. Consequently, the
market price of these securities may be quite volatile, and the risk of loss
is greater.
In addition, to the extent that the Company enters into a coinsurance
transaction, the Company will seek to manage the investment of the assets
transferred to it as part of such transaction in an effort to match its
anticipated reinsurance liabilities associated with such transaction. The
Company expects to invest such assets principally in fixed income and, to a
lesser extent, equity securities. The Company may invest in foreign
denominated securities to manage currency risk if the coinsurance transaction
has a foreign currency component. The Company may also enter into interest
rate swaps and other hedging transactions in an effort to manage interest rate
risks associated with such transactions. The Company's ability to structure
its investments to match its anticipated reinsurance liabilities has not been
tested. Therefore, no assurance can be given that the Company will
successfully match the structure of its investments in relation to its
anticipated reinsurance liabilities. If the Company's calculations with
respect to its reinsurance liabilities are incorrect, or if it improperly
structures its investments to match such liabilities, it could be forced to
liquidate investments prior to maturity at a significant loss with the result
that reserves therefor may not be adequate, which could have an adverse effect
on the Company's business, results of operations and financial condition.
The Company has entered into an investment advisory agreements with PIMCO
and General Re to manage the Company's investment portfolio. Each Investment
Manager will have discretionary authority over the portion of the Company's
investment portfolio allocated to it, subject to the Investment Guidelines
adopted by the
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Company. The performance of the Company's investment portfolio, therefore,
will depend to a great extent on the ability of the Investment Managers to
select and manage appropriate investments. There can be no assurance that the
Investment Managers will be successful in meeting the Company's investment
objectives. See "Business--Investment Managers."
The success of any investment activity is affected by general economic
conditions, which may adversely affect the markets for interest-rate-sensitive
securities and equity securities, including the level and volatility of
interest rates and the extent and timing of investor participation in such
markets. Unexpected volatility or illiquidity in the markets in which the
Company directly or indirectly holds positions could adversely affect the
Company.
QUARTERLY FLUCTUATIONS; CERTAIN ECONOMIC AND MARKET RISKS. The Company's
results of operations may also fluctuate significantly on a quarterly basis
based on changes in, among other things, (i) the capital markets, (ii) the
performance results of its investment managers or (iii) the Company's
experience under its reinsurance contracts. Furthermore, a downturn in the
economy or the capital markets could adversely affect the market for many life
insurance and annuity products. If the market for life insurance or annuity
contracts were adversely affected, it would likely depress the demand for the
Company's variable life insurance and reinsurance products, which could have a
material adverse effect on the Company's business, results of operations and
financial condition. In addition, such a downturn could adversely affect the
value of policyholders' separate accounts related to the Company's variable
life insurance policies and the variable annuity contracts issued by Scottish
Annuity, which would reduce the amount of revenue the Company generates from
fees charged to policyholders and Scottish Annuity based on the value of such
accounts. See "Management's Discussion and Analysis of Financial Condition and
Plan of Operations--General" and "Business--Scottish Annuity Agreement."
FOREIGN CURRENCY FLUCTUATIONS. The Company's functional currency is the
United States dollar. However, because the Company expects that it may write a
portion of its business and receive premiums in currencies other than United
States dollars and may maintain a small portion of its investment portfolio in
investments denominated in currencies other than United States dollars, the
Company may experience exchange losses to the extent its foreign currency
exposure is not properly managed or otherwise hedged, which in turn could
adversely affect the Company's statement of operations and financial
condition.
IMPORTANCE OF MANAGEMENT AND KEY EMPLOYEES. The Company is highly dependent
upon its executive officers and key employees. The unexpected loss of the
services of one of these individuals, particularly Michael C. French, Chairman
of the Board and Chief Executive Officer, Michelle L. Boucher, Senior Vice
President, Chief Financial Officer and Secretary, or Henryk Sulikowski, Senior
Vice President and Chief Insurance Officer, could have a material adverse
effect on the Company. Although the Company has employment agreements with Mr.
French, Ms. Boucher and Mr. Sulikowski, no assurance can be given that the
Company will be able to retain the services of these individuals. The Company
does not carry any key person life insurance policies for any of its executive
officers or employees. The Company's success will also be dependent on its
ability to attract and maintain a staff of qualified administrative and
management personnel and, to the extent qualified Cayman Islands citizens are
not available, the willingness and ability of non-Cayman Islands citizens to
be located in the Cayman Islands. The Company, which currently has five
employees, intends to hire additional qualified administrative and
underwriting personnel as the Company's business grows, but no assurance can
be given that the Company will be successful in attracting and hiring such
personnel.
CAYMAN ISLANDS WORK PERMITS. Under Cayman Islands immigration law, those
persons who are not Caymanians, Cayman status holders or residents with
permission to work may not engage in any gainful occupation in the Cayman
Islands without the specific permission of the appropriate Cayman Islands
government authority. Ms. Boucher is currently working as an executive of
Scottish Annuity under a validly issued work permit, which expires July 24,
1999. Ms. Boucher is seeking an amendment to such work permit to cover her
employment by Holdings and Scottish Insurance. Mr. French and Mr. Sulikowski
were issued work permits for an initial one year period commencing on October
2, 1998 and September 14, 1998, respectively. Messrs.
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French's and Sulikowski's permits may be automatically renewed for an
additional one year period upon payment of the applicable renewal fee.
Although the Company believes that Ms. Boucher's work permit will be amended,
no assurance can be given that such work permit will be amended or that any
work permits received will be renewed when they expire. See "Business--
Employees" and "Management--Executive Officers and Directors." If such work
permits are not amended or renewed, the Company may be required to make other
arrangements to permit the person affected to perform services for the Company
outside the Cayman Islands. This could involve such person or persons
establishing residency in some other location outside the United States, which
could increase the Company's administrative expenses.
DUAL MANAGEMENT DUTIES. Ms. Boucher is currently an executive officer of
Scottish Annuity and will continue to serve in such capacity following the
Offering. Ms. Boucher will also be performing services for Scottish Annuity
pursuant to the Scottish Annuity Agreement. No assurance can be given that
acting in such capacities while serving as an executive of the Company will
not adversely affect the ability of Ms. Boucher to perform her duties for the
Company. See "Business--Scottish Annuity Agreement."
COMPETITION. The life insurance and reinsurance industries are highly
competitive and most of the companies in such industries are significantly
larger and have operating histories and have access to significantly greater
financial and other resources than does the Company. The Company has no
experience competing with such companies and there can be no assurance that it
will be successful. In addition, to the extent that the Company's variable
life insurance policies provide for management of the underlying separate
accounts by private independent money managers, the Company's variable life
insurance policies compete with mutual funds and other investment and savings
vehicles. The Company will compete for customers in its market niches
primarily based on price, expertise and service, factors which may be affected
by events or conditions (e.g., changes in applicable insurance regulations or
tax laws) over which the Company has no control. In addition, competition in
the reinsurance business that the Company intends to underwrite is based on
many factors, including price, the general reputation and perceived financial
strength of the reinsurers, existing relationships with other reinsurers,
ratings assigned by independent rating agencies, reputation and experience in
structuring transactions which meet client needs and regulatory requirements.
In addition, because the Company expects to rely at least initially on a small
number of clients for both its variable life insurance and reinsurance
businesses, such businesses may be more susceptible to the adverse effects of
competition.
In addition, substantially all of the Company's variable life insurance
clients are expected to be obtained through referrals in the United States by
financial advisors, investment managers, private bankers, attorneys and other
intermediaries in the United States, while its reinsurance clients are
expected to be obtained through relationships with international insurance
brokers, insurance consultants, members of the actuarial profession and senior
insurance company executives with whom the Company's Senior Vice President and
Chief Insurance Officer has a relationship. None of these intermediaries or
other referral sources may receive any commission or other remuneration from
the Company for activities undertaken in the U.S. or any other jurisdiction
that imposes restrictions on the Company's activities similar to those which
the Company is subject to in the U.S. Accordingly, no assurance can be given
that the Company can successfully compete with the United States and foreign
insurance and reinsurance companies that directly market their products in the
United States and elsewhere.
The Company's domestic competitors are generally registered or otherwise
subject to state insurance laws in one or more jurisdictions in the U.S.
Because the Company does not intend to solicit, advertise or conduct insurance
activities in the U.S., the Company does not expect to be subject to such
laws. See "Business--Regulation." Potential clients and/or their advisors will
be able to compare the Company's products to the products of its competitors
based on publicly available information regarding such competitors' products.
INCOME TAX RISKS.
Taxation of Holdings and Scottish Insurance. Holdings and Scottish Insurance
are Cayman Islands companies and neither are expected to file United States
income tax returns. Holdings and Scottish Insurance plan to operate in such a
manner that they are not subject to United States tax (other than withholding
tax on
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certain investment income from United States sources) because they do not
engage in business in the United States. However, because definitive
identification of activities which constitute being engaged in trade or
business in the United States is not provided by the Internal Revenue Code of
1986, as amended (the "Code"), or regulations or court decisions, there can be
no assurance that the Internal Revenue Service ("IRS") will not contend
subsequent to the Offering that Holdings and/or Scottish Insurance is engaged
in a trade or business in the United States. If Holdings were considered to be
engaged in a trade or business in the United States it would be subject to
United States tax at regular corporate rates on its taxable income that is
effectively connected with its United States business plus an additional 30%
"branch profits" tax on such income remaining after the regular tax, in which
case there could be an adverse affect on the Company. See "Material Tax
Consequences."
The United States currently imposes an excise tax on insurance and
reinsurance premiums paid to foreign insurers with respect to risks located in
the United States. In addition, Holdings may be subject to withholding tax on
certain investment income from United States sources. There can be no
assurance that such taxes will not be increased or that other taxes will not
be imposed on Holdings' business.
Controlled Foreign Corporation Rules. United States persons who may,
directly or through certain attribution rules, acquire 10% or more of the
Ordinary Shares of Holdings, should consider the possible application of the
"controlled foreign corporation" ("CFC") rules. Each "United States
shareholder" of a CFC who owns shares in the CFC on the last day of the CFC's
taxable year generally must include in his gross income for United States
federal income tax purposes his pro-rata share of the CFC's "subpart F
income," even if the subpart F income has not been distributed. For these
purposes, any United States person who owns directly or indirectly 10% or more
of the voting stock of a foreign corporation will be considered to be a
"United States shareholder." In general, a foreign insurance company such as
Scottish Insurance is treated as a CFC only if such "United States
shareholders" collectively own more than 25% of the total combined voting
power or total value of Holdings' stock for an uninterrupted period of 30 days
or more during any year. Holdings believes that, because of the anticipated
dispersion of its share ownership among holders and because of the
restrictions in its Articles of Association on transfer, issuance or
repurchase of the voting shares of Holdings, shareholders who acquire Ordinary
Shares in the Offering will not be subject to treatment as "United States
shareholders" of a CFC. In addition, because under the Articles of Association
no single shareholder will be permitted to exercise 10% or more of the total
combined voting power of Holdings, shareholders of Holdings should not be
viewed as "United States shareholders" of a CFC for purposes of these rules.
There can be no assurance, however, that these rules will not apply to
shareholders of Holdings. See "Material Tax Consequences."
Related Person Insurance Income Risks. If Scottish Insurance's related
person insurance income ("RPII") determined on a gross basis were to equal or
exceed 20% of its gross insurance income in any taxable year and direct or
indirect insureds and persons related to such insureds were directly or
indirectly to own more than 20% of the voting power or value of Scottish
Insurance's capital stock, a United States person who owns Ordinary Shares in
Holdings directly or indirectly on the last day of the taxable year may be
required to include in income for United States federal income tax purposes
the shareholder's pro-rata share of Scottish Insurance's RPII for the taxable
year, determined as if such RPII were distributed proportionately to such
United States person at that date. RPII is generally underwriting premium and
related investment income attributable to insurance or reinsurance policies
where the direct or indirect insureds are United States shareholders or are
related to United States shareholders of the insurance company issuing such
policies. Scottish Insurance does not expect that it will knowingly enter into
insurance agreements in which, in the aggregate, the direct or indirect
insureds are, or are related to, owners of 20% or more of the Ordinary Shares.
Furthermore, Scottish Insurance does not currently believe that the 20% gross
insurance income threshold will be met in 1998 or any subsequent year.
However, there can be no assurance that this will be the case. Consequently,
there can be no assurance that a United States person will not be required to
include amounts in its income in respect of RPII in any taxable year. See
"Material Tax Consequences."
If a shareholder who is a United States person disposes of shares in a
foreign insurance corporation that has RPII (even if the amount of RPII is
less than 20% of the corporation's gross insurance income) and in which United
States persons own 25% or more of the voting power or value of the
corporation's shares, any gain from
16
<PAGE>
the disposition will generally be treated as ordinary income to the extent of
the shareholder's portion of the corporation's undistributed earnings and
profits that were accumulated during the period that the shareholder owned the
shares (potentially whether or not such earnings and profits are attributable
to RPII). In addition, such a shareholder will be required to comply with
certain reporting requirements, regardless of the amount of shares owned by
the shareholder. These rules should not apply to dispositions of Ordinary
Shares because Holdings is not itself directly engaged in the insurance
business and because proposed United States Treasury regulations applicable to
this situation appear to apply only in the case of shares of corporations that
are directly engaged in the insurance business. There can be no assurance,
however, that the IRS will interpret the proposed regulations in this manner
or that the proposed regulations will not be promulgated in final form in a
manner that would cause these rules to apply to dispositions of Ordinary
Shares. See "Material Tax Consequences."
Passive Foreign Investment Company Risks. To avoid significant potential
adverse United States federal income tax consequences for any United States
person who owns Ordinary Shares of the Company, it is important that Holdings
not constitute a "passive foreign investment company" (a "PFIC") in any year
in which such person is a shareholder. In general, a foreign corporation is a
PFIC for a taxable year if 75% or more of its income constitutes "passive
income" or 50% or more of its assets produces passive income. "Passive income"
generally includes interest, dividends and other investment income. However,
"passive income" does not include income "derived in the active conduct of an
insurance business by a corporation which is predominantly engaged in an
insurance business." This exception is intended to ensure that income derived
by a bona fide insurance company is not treated as passive income, except to
the extent such income is attributable to financial reserves in excess of the
reasonable needs of the insurance business. Because Holdings, through Scottish
Insurance, intends to be predominately engaged in an insurance business and
does not intend to have financial reserves in excess of the reasonable needs
of its insurance business, Holdings does not expect to meet the requirements
for a PFIC. There can be no assurance, however, that the IRS or a court will
concur in this view. See "Material Tax Consequences."
Cayman Islands Taxes. There are no income, corporation, capital gains or
other taxes in effect in the Cayman Islands on the basis of present
legislation. In addition, Holdings and Scottish Insurance have each received
an undertaking from the Governor-in-Council of the Cayman Islands pursuant to
the provisions of the Tax Concessions Law, as amended (1995 Revision), that
until the year 2018 (i) no subsequently enacted law imposing any tax on
profits, income, gains or appreciation shall apply to Holdings or Scottish
Insurance and (ii) no such tax and no tax in the nature of an estate duty or
an inheritance tax shall be payable on any shares, debentures or other
obligations of Holdings or Scottish Insurance. There can be no assurance that
after such date Holdings or Scottish Insurance would not be subject to any
such tax.
HOLDING COMPANY STRUCTURE AND DIVIDENDS. Holdings is a holding company which
will be engaged in the variable life insurance and reinsurance business
through its ownership of Scottish Insurance. Holdings' principal source of
income will be dividends paid by Scottish Insurance. Holdings intends to begin
paying dividends on its Ordinary Shares on a quarterly basis. No dividend,
however, has been legally declared by Holdings' Board of Directors. The
declaration and payment of dividends by Holdings will be at the discretion of
its Board of Directors and will depend upon Holdings' results of operations
and cash flows, the financial position and capital requirements of Scottish
Insurance, general business conditions, legal, tax, regulatory and any
contractual restrictions on the payment of dividends and other factors the
Board of Directors deems relevant. Holdings' ability to pay dividends depends
on the ability of Scottish Insurance to pay dividends to Holdings. While
Holdings is not itself subject to any significant legal prohibitions on the
payment of dividends, Scottish Insurance is subject to Cayman Islands
regulatory constraints which affect its ability to pay dividends to Holdings.
Specifically, payment of dividends by Scottish Insurance is subject to its
need to maintain a level of capital adequate to support its variable life
insurance and reinsurance businesses and comply with restrictions under
applicable insurance regulations and Cayman Islands corporate law. Scottish
Insurance, as the holder of an unrestricted Class B insurance license, will be
required by Cayman Islands law to maintain a minimum net worth of $240,000.
Accordingly, there is no assurance that dividends will be declared or paid in
the future. See "Dividend Policy."
17
<PAGE>
LIMITATIONS ON OWNERSHIP, TRANSFERS AND VOTING RIGHTS. Except as described
below with respect to transfers of Ordinary Shares executed on the Nasdaq
National Market, under the Company's Articles of Association, the Company's
directors (or their designee) are required to decline to register any transfer
of shares of the Company, including Ordinary Shares, if they have any reason
to believe that such transfer would result in a person (or any group of which
such person is a member) beneficially owning, directly or indirectly, 10% or
more of any class of shares of the Company. Similar restrictions apply to
issuances and repurchases of shares by the Company. The directors (or their
designee) also may, in their absolute discretion, decline to register the
transfer of any shares if they have reason to believe that such transfer may
expose the Company, any subsidiary or shareholder thereof or any person
insured or reinsured or proposing to be insured or reinsured by the Company to
adverse tax or regulatory treatment in any jurisdiction or if they have reason
to believe that registration of such transfer under the Securities Act, under
any state "blue sky" or other United States securities laws or under the laws
of any other jurisdiction is required and such registration has not been duly
effected. A transferor of Ordinary Shares will be deemed to own such shares
for dividend, voting and reporting purposes until a transfer of such Ordinary
Shares has been registered on the Register of Members of the Company. The
Company is authorized to request information from any holder or prospective
acquiror of Ordinary Shares as necessary to effect registration of any such
transaction, and may decline to register any such transaction if complete and
accurate information is not received as requested.
The Company's directors will not decline to register any transfer of
Ordinary Shares executed on the Nasdaq National Market for the reasons
described above. However, if any transfer results in the transferee (or any
group of which such transferee is a member) beneficially owning, directly or
indirectly, 10% or more of any class of shares of the Company or causes the
Company's directors (or their designee) to have reason to believe that such
transfer may expose the Company, any subsidiary or shareholder thereof or any
person insured or reinsured or proposing to be insured or reinsured by the
Company to adverse tax or regulatory treatment in any jurisdiction, under the
Company's Articles of Association, the directors (or their designee) are
empowered to deliver a notice to the transferee demanding that such transferee
surrender to an agent designated by the directors (the "Agent") certificates
representing the shares and any dividends or distributions that the transferee
has received as a result of owning the shares. A transferee who has resold the
shares before receiving such notice will be required to transfer to the Agent
the proceeds of the sale, to the extent such proceeds exceed the amount that
the transferee paid for such shares, together with any dividends or
distributions that the transferee received from the Company. As soon as
practicable after receiving such shares and any dividends or distributions
that the transferee received, the Agent will use its best efforts to sell such
shares and any non-cash dividends or distributions to the extent tradeable as
market securities in an arm's-length transaction on the Nasdaq National
Market. After applying the proceeds from such sale toward reimbursing the
transferee for the price paid for such shares, the Agent will pay any
remaining proceeds and any cash dividends and distributions to organizations
described in Section 501(c)(3) of the Code that the directors designate. The
proceeds of any such sale by the Agent or the surrender of dividends or
distributions will not inure to the benefit of the Company or the Agent, but
such amounts may be used to reimburse expenses incurred by the Agent in
performing its duties.
In addition, the Articles of Association generally provide that any person
(or any group of which such person is a member) holding directly, or by
attribution, or otherwise beneficially owning voting shares of the Company
carrying 10% or more of the total voting rights attached to all of the
Company's outstanding capital shares, will have the voting rights attached to
its voting shares reduced so that it may not exercise more than approximately
9.9% of such total voting rights. Because of the attribution provisions of the
Code and the rules of the Commission regarding determination of beneficial
ownership, this requirement may have the effect of reducing the voting rights
of a shareholder whether or not such shareholder directly holds of record 10%
or more of the voting shares of the Company. Further, the directors (or their
designee) have the authority to request from any shareholder certain
information for the purpose of determining whether such shareholder's voting
rights are to be reduced. Failure to respond to such a notice, or submitting
incomplete or inaccurate information, gives the directors (or their designee)
discretion to disregard all votes attached to such shareholder's Ordinary
Shares. See "Description of Shares--Ordinary Shares--Restrictions on
Transfer," "--Limitations on Voting Rights" and "--Unilateral Repurchase
Right."
18
<PAGE>
ANTI-TAKEOVER EFFECTS OF ARTICLES OF ASSOCIATION AND CAYMAN ISLANDS
CONFIDENTIALITY LAWS. Holdings' Articles of Association contain certain
provisions that make more difficult the acquisition of control of Holdings by
means of a tender offer, open market purchase, a proxy fight or otherwise,
including by reason of the limitation on transfers of Ordinary Shares and
voting rights described above. While these provisions are designed to
encourage persons seeking to acquire control of Holdings to negotiate with
Holdings' Board of Directors, they could have the effect of discouraging a
prospective purchaser from making a tender offer or otherwise attempting to
obtain control of Holdings. See "Description of Shares--Antitakeover Effects
of Articles of Association." Cayman Islands law restricts disclosure of, among
other things, shareholder lists. Accordingly, such laws may make the
acquisition of control by means of a tender offer or proxy fight more
difficult.
SHARES ELIGIBLE FOR FUTURE SALE. Upon completion of the Offering, the
Company will have outstanding 18,250,000 Ordinary Shares, Class A Warrants to
purchase an aggregate of 1,550,000 Ordinary Shares, Class B Warrants to
purchase an aggregate of 200,000 Ordinary Shares and options to purchase an
aggregate of 1,020,000 Ordinary Shares. If the Underwriters' over-allotment
option is exercised in full, 20,762,500 Ordinary Shares will be outstanding
and the number of Ordinary Shares issuable upon exercise of outstanding
options will increase to 1,170,000 Ordinary Shares. The number of Ordinary
Shares issuable upon the exercise of Class A Warrants and Class B Warrants
will not change if the Underwriters' over-allotment option is exercised. The
Class A Warrants, Class B Warrants and the options are not currently
exercisable. In addition, Class C Warrants exercisable for up to 750,000
Ordinary Shares may be issued pursuant to the agreement with Westport
beginning January 1, 2000. See "Management--Stock Option Plan" and
"Description of Shares--Warrants" and "--Options." Except as disclosed in
"Description of Shares--Restrictions on Transfer" and as discussed below with
respect to the lock-up agreements, the Ordinary Shares sold in the Offering
will be freely transferable without restriction or further registration under
the Securities Act, except for any of those Ordinary Shares owned at any time
by an "affiliate" of the Company within the meaning of Rule 144 under the
Securities Act (which sales will be subject to the volume limitations and
certain other restrictions of such rule). The 1,500,000 Ordinary Shares issued
upon formation of the Company and the Ordinary Shares underlying the Class A
Warrants, Class B Warrants, any Class C Warrants and the options are, or upon
issuance will be, "restricted securities" as defined in Rule 144 under the
Securities Act and may not be resold in the absence of registration under the
Securities Act or pursuant to an exemption from registration, including such
rule. The Company, its officers and directors, SHL, the shareholders of SHL to
receive Ordinary Shares of Holdings as a result of the SHL Distribution and
the holders of Class A and Class B Warrants have agreed that they will not,
for a period of one year from the date of this Prospectus, directly or
indirectly, offer, sell, offer to sell, contract to sell, pledge, transfer,
assign, hypothecate, grant any option to purchase or otherwise sell or dispose
(or announce any offer, sale, offer of sale, contract of sale, pledge,
transfer, assignment, hypothecation, grant of any option to purchase or other
sale or disposition) of any Ordinary Shares or other shares of the Company or
any securities convertible into, or exercisable or exchangeable for, any
Ordinary Shares or other shares of the Company without the prior written
consent of Prudential Securities Incorporated, on behalf of the Underwriters,
provided that in the case of holders of the Class B Warrants, consent to
waiver of such restrictions may be granted during such period only with
respect to transactions with certain holders of interests in the limited
partnerships holding such warrants. Such agreements do not prevent the Company
from granting options under the Stock Option Plan so long as such options do
not become exercisable until one year from the date of this Prospectus. The
Company also has agreed not to file any registration statement on Form S-8
with respect to, or otherwise register the resale with the Commission,
Ordinary Shares underlying stock options for a period of one year from the
date of this Prospectus. Prudential Securities Incorporated may, in its sole
discretion, at any time and without notice, release all or any portion of the
securities subject to such lock-up agreements, except that in the case of
holders of the Class B Warrants, such release may be granted only with respect
to transactions with certain holders of interests in the limited partnerships
holding such warrants. See "Shares Eligible for Future Sale."
SERVICE OF PROCESS AND ENFORCEMENT OF JUDGMENTS. The Company is a Cayman
Islands company and certain of its officers and directors are residents of
various jurisdictions outside the United States. All or a substantial portion
of the assets of such officers and directors and the Company, at any one time,
are or may be located in jurisdictions outside the United States. Although the
Company has irrevocably agreed that it may be served with process in New York,
New York with respect to actions arising out of or in connection with
19
<PAGE>
violations of United States federal securities laws relating to offers and
sales of Ordinary Shares made hereby, it could be difficult for investors to
effect service of process within the United States on directors and officers
of the Company who reside outside the United States or to recover against the
Company or such directors and officers on judgments of United States courts
predicated upon the civil liability provisions of the United States federal
securities laws.
NO PRIOR PUBLIC MARKET FOR ORDINARY SHARES. Prior to the Offering, there has
been no public market for the Ordinary Shares and there can be no assurance
that an active trading market will develop after the Offering or that the
Ordinary Shares offered hereby will trade at or above the initial public
offering price. The initial public offering price may not be indicative of the
market price for the Ordinary Shares after the Offering. Application has been
made to include the Ordinary Shares being offered hereby for quotation in the
Nasdaq National Market.
DILUTION. Purchasers of Ordinary Shares in the Offering will experience
immediate and substantial dilution of approximately $2.16 per share (based
upon the initial public offering price of $15.00 per Ordinary Share) in the
net tangible book value of their Ordinary Shares from the initial public
offering price. See "Dilution."
YEAR 2000 RISK. Many existing computer programs use only two digits to
identify a year in the date field. These programs, if not corrected, could
fail or create erroneous results by or at the year 2000. This "Year 2000"
issue is believed to affect virtually all companies and organizations,
including the Company. The Company has acquired certain computer hardware and
software equipment from Scottish Annuity. Because most of the computer
hardware and software purchased from Scottish Annuity is less than two years
old, the Company believes that its exposure with respect to its own computer
systems to Year 2000-related problems is not significant. The Company has
contracted to upgrade the principal accounting software acquired from Scottish
Annuity from a DOS-based version which is not Year 2000 compliant to a Windows
NT version which is certified Year 2000 compliant by the software vendor. The
Company estimates that the total cost to upgrade this system will not exceed
$50,000 and will be completed and tested by the end of 1998. In addition, the
Company relies significantly on a number of third party service providers,
such as Westport, IRM Cayman, Milliman & Robertson, PIMCO and General Re, each
of whose respective systems the Company has confirmed, or is in the process of
confirming, are Year 2000 compliant. The Company also intends to require that
any new investment managers or other third party service providers be or
become Year 2000 compliant in a timely manner. There can be no assurance,
however, that the Company's operations will not experience disruptions due to
the failure of third parties, including reinsurance counterparties, to become
fully Year 2000 compliant in a timely manner or that such failure will not
otherwise have an adverse effect on the Company's business, results of
operations or financial condition. In the event the Company's plans with
respect to its Year 2000 readiness fail to protect its operations from
disruptions or its business, results of operations or financial condition from
adverse effect, the Company has no contingency plan other than the replacement
of existing third party service providers which are not Year 2000 compliant
with comparable third party service providers who are Year 2000 compliant.
20
<PAGE>
USE OF PROCEEDS
The net proceeds from the sale of the Ordinary Shares to be sold in the
Offering are estimated to be approximately $233.7 million ($271.4 million if
the Underwriters' over-allotment option is exercised in full) after deducting
underwriting discounts and commissions, certain advisory fees and other
estimated expenses related to the Offering. The purpose of the Offering is to
enable the Company to implement its business plan to enter into the variable
life insurance and fixed annuity and other reinsurance businesses.
Substantially all of the net proceeds of the Offering will be contributed to
Scottish Insurance to support its insurance and reinsurance activities and
will be invested in accordance with the Company's Investment Guidelines. See
"Business--Investment Portfolio--Investment Guidelines." Until so invested,
the net proceeds will be invested in short-term, investment grade, interest-
bearing securities.
DIVIDEND POLICY
The Board of Directors of Holdings intends to declare and pay out of
earnings a quarterly dividend of $0.05 per Ordinary Share beginning at the end
of the first full fiscal quarter following consummation of the Offering. The
Board, however, has not declared such dividend or any other future dividend.
The declaration and payment of dividends by Holdings will be at the discretion
of its Board of Directors and will depend upon Holdings' results of operations
and cash flows, the financial position and capital requirements of Scottish
Insurance, general business conditions, legal, tax, regulatory and any
contractual restrictions on the payment of dividends and other factors the
Board of Directors deems relevant. Holdings' ability to pay dividends depends
on the ability of Scottish Insurance to pay dividends to Holdings. While
Holdings is not itself subject to any significant legal prohibitions on the
payment of dividends, Scottish Insurance is subject to Cayman Islands
regulatory constraints which affect its ability to pay dividends to Holdings.
Accordingly, there is no assurance that dividends will be declared or paid in
the future. See "Risk Factors--Holding Company Structure and Dividends,"
"Management's Discussion and Analysis of Financial Condition and Plan of
Operations" and "Business--Regulation--Cayman Islands."
21
<PAGE>
CAPITALIZATION
The following table sets forth the consolidated capitalization of the Company
as of June 9, 1998 and as adjusted to give effect to the Offering and the
receipt of the estimated net proceeds therefrom. See "Use of Proceeds."
<TABLE>
<CAPTION>
AS ADJUSTED
FOR THE
ACTUAL OFFERING(2)
------ -----------
(DOLLARS IN
THOUSANDS)
<S> <C> <C>
Preferred Shares, par value $0.01 per share (50,000,000
shares authorized; no shares outstanding actual and as
adjusted)............................................. -- --
Ordinary Shares, par value $0.01 per share (100,000,000
shares authorized; 1,500,000 shares outstanding
actual; 18,250,000 shares outstanding as adjusted)
(1)................................................... 15 183
Additional paid-in capital............................. 585 234,394
---- --------
Total shareholder's equity........................... 600 234,577
---- --------
Total capitalization................................. $600 $234,577
==== ========
</TABLE>
- --------
(1) SHL owns 1,500,000 Ordinary Shares, which constitute all of the currently
outstanding Ordinary Shares of the Company. Prior to the consummation of
the Offering, SHL will effect the SHL Distribution. Ordinary Shares
outstanding after the Offering excludes 1,550,000 Ordinary Shares issuable
upon exercise of Class A Warrants, 200,000 Ordinary Shares issuable upon
exercise of Class B Warrants, 1,020,000 Ordinary Shares issuable upon
exercise of options granted to management and to be granted to non-employee
Directors and a consultant of the Company upon consummation of the Offering
and 980,000 Ordinary Shares reserved for future issuance pursuant to the
Stock Option Plan. In addition, Ordinary Shares outstanding after the
Offering excludes up to 750,000 Ordinary Shares issuable upon exercise of
Class C Warrants, if and to the extent such warrants are issued pursuant to
the Company's agreement with Westport. See "Business--Marketing" and
"Description of Shares--Warrants--Class C Warrants." If the Underwriters'
over-allotment option is exercised in full, upon consummation of the
Offering, 20,762,500 Ordinary Shares will be outstanding and the number of
Ordinary Shares issuable upon exercise of options granted to management and
to be granted to non-employee Directors and a consultant of the Company
upon consummation of the Offering will increase to 1,170,000 Ordinary
Shares. The number of Ordinary Shares issuable upon exercise of the Class A
Warrants and the Class B Warrants will not change if the Underwriters'
over-allotment option is exercised. The Class A Warrants, Class B Warrants
and options are not currently exercisable. See "Description of Shares--
Warrants" and "--Options" and "Management--Stock Option Plan."
(2) Also reflects the $302,000 paid in connection with the issuance of the
Class B Warrants.
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<PAGE>
DILUTION
Purchasers of the Ordinary Shares offered in the Offering will experience an
immediate and substantial dilution in net tangible book value of their
Ordinary Shares from the initial public offering price. After giving effect to
the Offering and the issuance of the Class B Warrants, the pro forma net
tangible book value of the Ordinary Shares (after deducting underwriting
discounts and commissions, certain advisory fees and other estimated expenses
related to the Offering) will be approximately $234.6 million, or
approximately $12.84 per outstanding Ordinary Share. This represents an
immediate and substantial dilution in net tangible book value to investors
purchasing Ordinary Shares in the Offering of approximately $2.16 per Ordinary
Share, without taking into account any Ordinary Shares issuable upon exercise
of the Class A Warrants, the Class B Warrants and options. Pro forma "net
tangible book value" per outstanding Ordinary Share represents shareholders'
equity divided by the number of outstanding Ordinary Shares, including the
Ordinary Shares issued in the Offering.
The following table illustrates the per outstanding Ordinary Share dilution
to investors purchasing Ordinary Shares in the Offering:
<TABLE>
<S> <C> <C>
Initial public offering price................................. $15.00
Net tangible book value before giving effect to the Offering. $ 0.40
Increase in net tangible book value attributable to the sale
of the Ordinary Shares in the Offering(1).................... $12.44
Pro forma net tangible book value upon completion of the
Offering(1).................................................. 12.84
------
Dilution to new investors in the Offering..................... $ 2.16
======
</TABLE>
- --------
(1) Ordinary Shares outstanding after the Offering excludes 1,550,000 Ordinary
Shares issuable upon exercise of Class A Warrants, 200,000 Ordinary Shares
issuable upon exercise of the Class B Warrants, 1,020,000 Ordinary Shares
issuable upon exercise of options granted to management and to be granted
to non-employee Directors and a consultant of the Company upon
consummation of the Offering (1,170,000 Ordinary Shares if the
Underwriters' over-allotment option is exercised in full) and 980,000
Ordinary Shares reserved for future issuance pursuant to the Stock Option
Plan. In addition, Ordinary Shares outstanding after the Offering excludes
750,000 Ordinary Shares issuable upon exercise of Class C Warrants, if and
to the extent such warrants are issued pursuant to the Company's agreement
with Westport. See "Business--Marketing" and "Description of Shares--
Warrants--Class C Warrants." The number of Ordinary Shares issuable upon
exercise of the Class A Warrants and the Class B Warrants will not change
if the Underwriters' over-allotment option is exercised. The Class A
Warrants, Class B Warrants and the options are not currently exercisable.
The exercise of Class A Warrants, Class B Warrants and the options granted
to management and to be granted to certain non-employee Directors and a
consultant of the Company upon consummation of the Offering are not
expected to be dilutive to purchasers of Ordinary Shares in the Offering
because the exercise price per share of such warrants and options is equal
to the initial public offering price. See "Description of Shares--
Warrants" and "--Options" and "Management--Stock Option Plan." Net
tangible book value amounts also reflect the proceeds from the issuance of
the Class B Warrants.
The following table summarizes the number of Ordinary Shares purchased from
the Company, the total consideration paid and the average price per share paid
in the Offering:
<TABLE>
<CAPTION>
AVERAGE
SHARES PURCHASED TOTAL CONSIDERATION PRICE
------------------ ----------------------- PER
AMOUNT PERCENT AMOUNT PERCENT SHARE
---------- ------- ------------ ------- -------
<S> <C> <C> <C> <C> <C>
Shares issued upon
formation................ 1,500,000 8.2% $ 500,000(1) 0.2% $ 0.33(1)
Offering.................. 16,750,000 91.8 $251,250,000 99.8 $15.00
---------- ----- ------------ ----- ------
Total..................... 18,250,000 100.0% $251,750,000 100.0% $13.79
========== ===== ============ ===== ======
</TABLE>
- --------
(1) Represents amount paid by SHL for Ordinary Shares of the Company issued
upon its formation. Excludes $100,000 paid in the aggregate by Michael C.
French, Michelle L. Boucher and certain companies wholly owned by certain
shareholders of SHL for the Class A Warrants and $302,000 paid in the
aggregate by the Roman Arch Fund L.P. and the Roman Arch Fund II L.P. for
the Class B Warrants.
23
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND PLAN OF OPERATIONS
GENERAL
Holdings is an insurance holding company, the principal asset of which is
all of the shares in the capital of Scottish Insurance. Holdings and Scottish
Insurance were formed on May 12, 1998 and June 3, 1998, respectively, under
the laws of the Cayman Islands and neither has any operating history. The
Company will commence operations as soon as practicable after the Offering.
The Company intends principally to issue customized variable life insurance
policies to high net worth qualified purchasers and reinsure in-force blocks
of fixed annuity and similar contracts issued by other insurance companies. In
addition to its primary focus, the Company may reinsure in-force blocks of
other types of annuity contracts and life insurance products on an
opportunistic basis. The Company's fiscal year will end on December 31. The
Company's financial statements will be prepared in accordance with GAAP.
The cash value of each of the Company's variable life insurance policies
will be held in separate accounts managed by private independent money
managers for the respective policyholders. The Company will not provide any
investment management or advisory services. Policyholders may elect to remit
premiums to their separate account from time to time, subject to underwriting
limits and a minimum initial deposit of $1.0 million for single premium
policies or $500,000 for multiple premium policies. The cash values and the
death benefits with respect to each variable life insurance policy will
fluctuate according to the investment experience of the assets in their
respective separate account. In accordance with GAAP, variable life premiums
received by Scottish Insurance will be recorded as an increase in liabilities
for policyholders' separate accounts. The assets in the policyholders'
separate accounts are not part of the Company's general funds and are not
available to meet the general obligations of the Company. See "Business--
Regulation--Cayman Islands--Separate Accounts." The Company's reinsurance of
various types of annuity contracts and life insurance products will typically
be on a coinsurance or modified coinsurance basis, with the Company assuming
all of the liability for such contracts. However, the Company may, in certain
circumstances, require the ceding company to retain a portion of the risk
related to such contracts. Such retention by the ceding company is not
expected to exceed 10% of such risk.
Substantially all of the Company's operating revenue related to its variable
life insurance policies are expected to be derived from separate account fees
attributable to its variable life insurance. These fees, typically called
"Mortality and Expense" ("M&E") fees, are charged quarterly in advance based
on a percentage of the cash values in the separate accounts. The Company may
also charge relatively nominal set-up and supervisory fees with respect to its
variable life insurance policies. In addition, a policyholder may be charged a
fee upon a partial or total surrender of the policy. With respect to the
Company's reinsurance business, the primary source of operating profit (loss)
will be the net investment income from reserve accounts acquired from ceding
companies after deducting the interest credited to the policyholder account
values related to the underlying annuity or similar contracts and interest
rate-sensitive life insurance products. To the extent the Company reinsures
life insurance on a yearly renewable term basis, the primary source of
operating profit (loss) will be the excess of the premium income associated
with such life insurance over the claims paid with respect to such life
insurance.
In addition, the Company has entered into the Scottish Annuity Agreement
with Scottish Annuity under which the Company has agreed to provide certain
insurance administration, accounting and other services to Scottish Annuity in
return for a fee, payable quarterly, based on the value of the separate
account assets of Scottish Annuity and the referral of potential clients to
Scottish Insurance. Based on the separate account assets of Scottish Annuity
at June 30, 1998, the annual amount of such fee (assuming a twelve month
period ending on such date) would have been $871,580. See "Business--Scottish
Annuity Agreement."
The Company's main operating costs will consist of employee related
expenses, professional and third party fees and travel and promotional
expenditures. Management will seek to limit personnel and other general and
administrative expenses by retaining third party service providers, including
Westport, IRM Cayman, Milliman & Robertson, PIMCO and General Re. The Company
will not employ commissioned sales or marketing
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personnel, but will rely primarily on referrals from, in the case of its
variable life insurance business, financial advisors, investment managers,
private bankers, attorneys and other intermediaries in the United States and,
in the case of its reinsurance business, international insurance brokers,
insurance consultants, members of the actuarial profession and senior
insurance company executives with whom the Company's Senior Vice President and
Chief Insurance Officer has a relationship. None of these intermediaries or
other referral sources may receive any commission or other remuneration from
the Company for activities undertaken in the U.S. or any other jurisdiction
that imposes restrictions on the Company's activities similar to those which
the Company is subject to in the U.S.
LIQUIDITY AND CAPITAL RESOURCES
Holdings is an insurance holding company which conducts its principal
operations through its subsidiary, Scottish Insurance. As a holding company,
Holdings' assets consist primarily of the capital stock of Scottish Insurance.
Accordingly, Holdings will rely primarily on cash dividends and other
permissible payments from Scottish Insurance to pay its operating expenses and
dividends. The Board of Directors of Holdings intends to declare and pay out
of earnings a quarterly dividend of $0.05 per Ordinary Share beginning at the
end of the first fiscal quarter following the consummation of the Offering. It
will be Holdings' policy to retain all earnings in excess of such quarterly
dividend to support the growth of its business. If Holdings' retained earnings
do not support the payment of such quarterly dividend, the dividend may be
reduced or eliminated. If Holdings makes a payment to shareholders in excess
of its current and retained earnings, such payment would be treated as a
return of capital to holders of the Ordinary Shares. The declaration and
payment of dividends by Holdings will be at the discretion of its Board of
Directors and will depend upon Holdings' results of operations and cash flows,
the financial condition and capital requirements of Scottish Insurance,
general business conditions, legal, tax, regulatory and any contractual
restrictions on the payment of dividends and other factors the Board of
Directors deems relevant. Although Holdings is not itself subject to any
significant legal prohibitions on the payment of dividends, Scottish Insurance
is subject to Cayman Islands regulatory constraints which affect its ability
to pay dividends to Holdings, including a minimum net worth requirement.
Accordingly, there is no assurance that dividends will be declared or paid in
the future. See "Dividend Policy" and "Business--Regulation--Cayman Islands."
The principal sources of funds for Scottish Insurance's operations are
expected to be substantially all of the net proceeds of the Offering, M&E and
certain other policy fees, premium income, net investment income and fees
received from Scottish Annuity under the Scottish Annuity Agreement. These
funds are expected to be used primarily to pay policy benefits and operating
expenses, and, subject to Cayman Islands law, to make dividend payments to
Holdings. The Company believes that the net proceeds of the Offering will be
sufficient to fund its planned growth and operating activities for the next
several years.
Policy reserves with respect to variable life insurance policies will be
calculated in an effort to meet the Company's estimated future life insurance
death benefit obligations. Policy reserves with respect to the Company's
reinsurance business will be primarily based on historical experience and
information provided by ceding companies together with the Company's estimate
of future experience with respect to the risks being reinsured.
The principal risk associated with the Company's variable life insurance
policies will be mortality risk. Mortality risk tends to be more stable when
spread across large numbers of insureds. The Company's variable life insurance
policies are expected to be placed with a relatively small number of high net
worth policyholders and to provide substantial death benefits given expected
initial premiums of $1.0 million for single premium policies and $500,000 for
multiple premium policies. As a consequence, the Company's associated
mortality risk exposure is likely to be greater in the aggregate, and its
probability of loss less predictable, than that of an insurer with a broader
risk pool. As a result, the Company intends to allocate a significant portion
of its capital, in addition to any policy reserves required under GAAP and any
additional Cayman Islands regulatory requirements, to cover possible
volatility in mortality experience. Furthermore, the Company intends to
reinsure
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a significant portion of the mortality risk associated with its variable life
insurance business with the objective of limiting the net amount at risk to
$500,000 per insured. The principal risk associated with the Company's fixed
annuity reinsurance activities is investment risk. Specifically, the Company
is subject to (i) asset value risk, which is the risk that invested assets
supporting the reinsured business will decrease in value, (ii) reinvestment
risk, which is the risk that interest rates will decline and funds reinvested
will earn less than expected, and (iii) disintermediation risk, which is the
risk that the Company may have to sell assets at a loss to provide for
policyholder withdrawals. The Company is also subject to mortality risk with
respect to the life insurance and annuity contracts it reinsures, although the
Company's exposure to such risk is expected to be more actuarially
determinable in light of the broader risk pool underlying the blocks of
business expected to be reinsured. The Company will also be subject to
surrender risk with respect to all of its insurance and reinsurance products.
The Company will determine whether to assume any particular reinsurance
business by considering many factors, including the type of risks to be
covered, actuarial evaluations, historical performance data for the cedent and
the industry as a whole, the cedent's retention, the product to be reinsured,
pricing assumptions, underwriting standards and reputation and financial
strength of the cedent. Pricing of the Company's reinsurance products will be
based on the Company's actuarial models which will incorporate a number of
factors, including assumptions for mortality and surrender risks, expenses,
demographics and investment returns. In addition, the Company will conduct a
financial due diligence review in an effort to minimize the risk that the
cedent will be unable to pay future amounts due to the Company because of
financial difficulties.
The development of policy reserves for the Company's variable life insurance
and reinsurance products will require management to make estimates and
assumptions regarding mortality, lapse, surrender, expense and investment
experience. Actual results could differ materially from those estimates.
Management will monitor actual experience and where circumstances warrant,
will revise its assumptions and the related reserve estimates. When the
liabilities for future policy benefits plus the present value of expected
future gross premiums for a product are insufficient to provide for expected
future benefits and expenses for that product, a premium deficiency reserve
will be established by a charge to income.
The Company does not currently have any material commitments for any capital
expenditures over the next twelve months.
The Company expects that the net proceeds of the Offering will permit it to
begin implementation of its business plan and, together with M&E and certain
other policy fees, premium income, net investment income and fees received
from Scottish Annuity under the Scottish Annuity Agreement, will provide
sufficient sources of liquidity and capital to meet the Company's anticipated
needs in the short-term and for the next several years. The Company does not
presently anticipate that it will incur any material indebtedness in the
ordinary course of its business other than possibly obtaining letters of
credit in connection with its reinsurance business. However, no assurance can
be given that the Company will not be required to incur indebtedness in order
to implement its business strategy.
IMPACT OF INFLATION
The effects of inflation will be implicitly considered in pricing the
Company's products and in estimating the Company's underwriting reserves.
CURRENCY
The Company's functional currency is the United States dollar. However,
because the Company expects that it may write a portion of its business and
receive premiums in currencies other than United States dollars and may
maintain a small portion of its investment portfolio in investments
denominated in currencies other than United States dollars, the Company may
experience exchange losses to the extent its foreign currency exposure is not
properly managed or otherwise hedged, which in turn would adversely affect the
Company's statement of operations and financial condition. The Company will
attempt to manage its foreign currency risk by seeking to match its
liabilities under reinsurance policies that are payable in foreign currencies
with investments that are denominated in such currencies. Furthermore, the
Company may use forward foreign currency exchange
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contracts in an effort to hedge against movements in the value of foreign
currencies relative to the United States dollar. A forward foreign currency
exchange contract involves an obligation to purchase or sell a specified
currency at a future date at a price set at the time of the contract. Foreign
currency exchange contracts will not eliminate fluctuations in the value of
the Company's assets and liabilities denominated in foreign currencies but
rather allow the Company to establish a rate of exchange for a future point in
time. The Company does not expect that it will enter into such contracts with
respect to a material amount of its assets.
TAXATION
Under current Cayman Islands law, neither Holdings nor Scottish Insurance is
expected to be obligated to pay any taxes in the Cayman Islands on their
income. Holdings and Scottish Insurance have received an undertaking from the
Governor-in-Council of the Cayman Islands pursuant to the provisions of the
Tax Concessions Law, as amended (1995 Revision), that until the year 2018 (i)
no subsequently enacted law imposing any tax on profits, income, gains or
appreciation shall apply to Holdings or Scottish Insurance, and (ii) no such
tax and no tax in the nature of an estate duty or an inheritance tax shall be
payable on any shares, debentures or other obligations of Holdings or Scottish
Insurance. Under current law no tax will be payable on the transfer or other
disposition of the shares of Holdings. The Cayman Islands currently impose
stamp duties on certain categories of documents. However, the current
operations of Holdings do not involve the payment of stamp duties in any
material amount. The Cayman Islands currently impose an annual corporate fee
upon all exempted companies. At current rates, Holdings expects to pay a
government fee of approximately $700 per annum and Scottish Insurance expects
to pay fees (including its government fee and insurance license fee) of
approximately $6,500 per annum. Because Holdings and Scottish Insurance are
not expected to conduct business in the United States or any other
jurisdiction except the Cayman Islands, it is not expected that Holdings or
Scottish Insurance will be subject to United States taxes or taxes in other
jurisdictions outside the U.S. See "Risk Factors--Income Tax Risk."
The United States imposes an excise tax on insurance and reinsurance
premiums paid to foreign insurers or reinsurers with respect to risks located
in the United States. The rate of tax applicable to Scottish Insurance is
currently 1% of its insurance and reinsurance premiums. This excise tax is
payable by the contract owner, although the Company will often file the tax
form. In addition, Holdings may be subject to withholding tax on certain
investment income from United States sources, but Holdings does not expect to
incur such withholding taxes in any material amount. See "Material Tax
Consequences."
YEAR 2000 RISK
The Company has acquired certain computer hardware and software equipment
from Scottish Annuity. Because most of the Company's computer hardware and
software purchased from Scottish Annuity is less than two years old, the
Company believes that its exposure with respect to its own computer systems to
Year 2000-related problems is not significant. The Company has contracted to
upgrade its fund accounting software from a DOS-based version which is not
Year 2000 compliant to a Windows NT version which is certified Year 2000
compliant by the software vendor. The Company estimates that the total cost to
upgrade its system will not exceed $50,000 and will be completed and tested by
the end of 1998. In addition, the Company relies significantly on a number of
third party service providers, such as Westport, IRM Cayman, Milliman &
Robertson, PIMCO and General Re, each of whose respective systems the Company
has confirmed, or is in the process of confirming, are Year 2000 compliant.
The Company also intends to require that any new investment managers or other
third party service providers be or become Year 2000 compliant in a timely
manner. There can be no assurance, however, that the Company's operations will
not experience disruptions due to the failure of third parties, including
reinsurance counterparties, to become fully Year 2000 compliant in a timely
manner or that such failure will not otherwise have an adverse effect on the
Company's business, results of operations or financial condition. In the event
the Company's plans with respect to its Year 2000 readiness fail to protect
its operations from disruptions or its business, results of operations or
financial condition from adverse effect, the Company has no contingency plan
other than the replacement of existing third party service providers which are
not Year 2000 compliant with comparable third party service providers who are
Year 2000 compliant.
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CHANGES IN ACCOUNTING STANDARDS
The Financial Accounting Standards Board's Statement No. 133, "Accounting
for Derivative Instruments and Hedging Activities," was issued in June 1998
and requires adoption no later than fiscal quarters or fiscal years beginning
after June 15, 1999. The new standard establishes accounting and reporting
standards for derivative instruments. It requires that an entity recognize all
derivatives as either assets or liabilities in the statement of financial
position and measure those instruments at fair value. If certain conditions
are met, a derivative may be specifically designated as (a) a hedge of the
exposure to changes in the fair value of a recognized asset or liability or an
unrecognized firm commitment, (b) a hedge of the exposure to variable cash
flows of a forecasted transaction, or (c) a hedge of the foreign currency
exposure of a net investment in a foreign operation, an unrecognized firm
commitment, an available-for-sale security, or a foreign-currency-denominated
forecasted transaction. The Company has not yet completed its evaluation of
the effect this standard will have on the Company.
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BUSINESS
Holdings and Scottish Insurance were recently formed as offshore companies
principally to provide customized variable life insurance products to high net
worth individuals and families who are or may become U.S. taxpayers and
provide reinsurance of in-force blocks of fixed annuities and similar
contracts to insurers no longer actively offering such products or otherwise
seeking to more efficiently manage capital allocated to existing businesses.
In addition to its primary focus, the Company may reinsure in-force blocks of
other types of annuities and life insurance products. The Company believes
that the favorable regulatory environment in which it will operate, its
planned low cost operating strategy and the absence of a corporate level tax
in the Cayman Islands will enable it to become a leading offshore provider of
variable life insurance and fixed annuity reinsurance products in target
markets.
Through its variable life insurance business, the Company seeks to respond
to what it believes are increasing demands of high net worth individuals and
families for customized life insurance products that can be utilized as part
of sophisticated estate planning strategies. For the Company, high net worth
means, at a minimum, individuals or family trusts who qualify as "qualified
purchasers" within the meaning of the Investment Company Act of 1940, as
amended (the "1940 Act"). The Company's variable life insurance business will,
however, generally focus on individuals and families with a liquid net worth
in excess of $10.0 million. Variable life insurance offers both a specified
death benefit as well as a cash value component which is placed in a separate
account and invested on behalf of the policyholder by a money manager. As a
Cayman Islands insurance company offering variable life insurance policies to
high net worth qualified purchasers, the Company has the flexibility to offer
policies that permit the use of private independent money managers to manage
the policy's separate account utilizing investment strategies not typically
available in variable life insurance policies issued to the general public.
The Company will also seek to leverage its expertise with respect to variable
life insurance products by offering structured life insurance products, such
as corporate-owned life insurance ("COLI"), which target the deferred
compensation market.
The Company's reinsurance business seeks to focus on what the Company
believes are meaningful opportunities to reinsure lines of business that are
subject to significant reserve or risk capital requirements under rating
agency requirements and applicable accounting standards. The Company believes
that, in response to heightened regulatory and rating agency scrutiny,
insurers are increasingly seeking reinsurance of in-force blocks of annuity
and life business as a means to improve earnings or risk-based capital or
other financial ratios. The Company's reinsurance business will target
insurance companies that have discontinued writing such business or that seek
relief from the reserve and capital requirements associated with such
business. The Company's reinsurance activities will focus principally on
opportunities in the U.S., although the Company also expects to target
opportunities in the United Kingdom, Western Europe, Canada and Australia.
The principal focus of the Company's reinsurance activities will be on
blocks of existing fixed annuity contracts such as structured settlements,
single premium deferred annuities, immediate annuities and similar contracts.
The Company intends to focus on the reinsurance of these annuities because it
believes that the reserve and capital requirements associated with fixed
annuities has made reinsurance of such annuities an attractive option for
issuers and reinsurers of these products and because the market for such
reinsurance is not currently well-developed. In addition, the Company expects
that it may also reinsure various forms of life insurance products, including
universal, variable and whole life insurance, and variable annuity contracts
if and when attractive opportunities become available. The Company believes
that reinsurance of these products will enable it to more effectively
capitalize on potential relationships with other insurers and reinsurers.
BUSINESS STRATEGY
In order to achieve its objective to become a leading offshore provider of
variable life insurance and fixed annuity reinsurance products in its target
markets, the Company intends to utilize a business strategy with the following
principal components:
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Leverage Management Expertise
The Company was organized by the management and shareholders of Scottish
Annuity. In 1994, the Company's Chairman and Chief Executive Offer, Michael C.
French founded Scottish Annuity, a privately held Cayman Islands insurance
company, to provide to high net worth individuals and families variable
annuity contracts that have the same cash value management features, and same
target market, as the Company's variable life insurance policies. In addition,
Mr. French was a founder of Maverick, an investment management company
organized in 1993 with approximately $2.5 billion of assets under management
as of October 1, 1998. Since 1995, Michelle L. Boucher, the Company's Senior
Vice President, Chief Financial Officer and Secretary, has been Manager of
Finance and Administration for Scottish Annuity. The Company intends to draw
on Mr. French's and Ms. Boucher's experience in developing Scottish Annuity's
variable annuity products and business to develop the Company's variable life
insurance products and business. Also, the Company intends to build on the
relationships with potential clients as well as intermediaries and other
referral sources that Mr. French and Ms. Boucher have developed with Scottish
Annuity. Henryk Sulikowski, the Company's Senior Vice President and Chief
Insurance Officer, has over 17 years experience in the insurance and
reinsurance industry. Prior to joining the Company, Mr. Sulikowski was a
Director of Swiss Re New Markets, responsible for developing, structuring and
marketing annuity and life reinsurance transactions. Prior to his tenure with
Swiss Re New Markets, Mr. Sulikowski was Vice President in charge of annuity
and life financial reinsurance activities at Cologne Re. Mr. Sulikowski has
been an associate of the Society of Actuaries since 1986 and a member of the
American Academy of Actuaries since 1987. The Company intends to draw on Mr.
Sulikowski's experience and relationships with international insurance
brokers, insurance consultants, members of the actuarial profession and senior
insurance company executives to implement its reinsurance business plan. See
"Business--Management--Executive Officers and Directors."
Utilize Third Party Service Providers
The Company believes that prospective purchasers of variable life insurance
products are price-sensitive and that insurers seeking reinsurance focus
principally on price in selecting a reinsurer. As a result, the Company is
pursuing a low cost operating strategy. In order to minimize its initial
investment in systems and personnel and to create and maintain a low cost
operating structure, the Company has entered into agreements with a number of
third party service providers to provide key services to the Company. The
Company has retained Westport, an affiliate of Westport Worldwide, a developer
and administrator of insurance products for international insurance brokers,
insurance companies and corporations and an affiliate of Westport Worldwide,
to provide non-exclusive distribution services for its variable life insurance
business, as well as certain related administrative services from time to
time, including monitoring tax law compliance and preparing policy
illustrations. The Company has also retained IRM Cayman, a member of IRMG, an
affiliate of Swiss Reinsurance, to act as the Company's licensed insurance
manager in the Cayman Islands and to provide to the Company certain additional
administrative services. According to IRM Cayman, IRMG is the largest
independent captive insurance manager in the world today operating out of 20
offices in North America, Europe, Australia, Africa and Asia. In addition, the
Company has retained Milliman & Robertson, a leading actuarial consulting
firm, to provide from time to time certain actuarial services including
pricing and reinsurance analysis. The Company has also retained PIMCO and
General Re, two of the largest fixed income investment managers in the U.S.,
to manage the Company's investment portfolio consistent with its Investment
Guidelines. See "Business--Administration and Consulting Services," and "--
Investment Portfolio--Investment Managers."
Build on Significant Capital Base
Upon consummation of the Offering, the Company will have an equity
capitalization of approximately $234.6 million. The Company believes that this
level of capitalization will demonstrate a strong financial position and a
high level of commitment to potential clients and the variable life insurance
and fixed annuity reinsurance marketplace and is necessary in establishing it
as a competitive insurance company. The Company does not anticipate that it
will incur any material indebtedness in the ordinary course of its business
other than possibly obtaining letters of credit in connection with its
reinsurance agreements. The Company should also benefit from the fact that, as
a recently formed entity, its capital is presently unencumbered by issues such
as reserve adequacy, unrealized losses in its investment portfolio and
uncollectible reinsurance. In part because of the
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Company's expected capitalization following the Offering, Duff & Phelps has
assigned Scottish Insurance a preliminary claims-paying ability rating of "A"
and has assigned Scottish Insurance a preliminary rating of . Duff &
Phelps assigns an "A" rating to companies that it characterizes as having, in
its opinion, high claims-paying ability, average protection factors and an
expectation of variability in risk over time due to economic or underwriting
conditions. The "A" rating assigned to Scottish Insurance is contingent on the
Company raising gross proceeds of at least $200.0 million in the Offering.
assigns an rating to companies that have, in its opinion, on
balance, excellent financial strength, operating performance and market
profile, as well as strong abilities to meet their ongoing obligations to
policy holders. The rating assigned to Scottish Insurance by is
contingent on the consummation of the Offering. Each rating represents the
respective rating agency's opinion of the Company's ability to meet its
obligations to its policyholders.
Apply Prudent Risk Management Policy
The principal risk associated with the Company's variable life insurance
policies is mortality risk. The death benefit provided to a policyholder by a
variable life insurance policy issued by the Company will vary based on the
investment return achieved on the underlying separate account by the private
independent money manager managing the account. The difference between the
value of the assets underlying a variable life insurance policy and the
policy's stated death benefit, known as the "net amount at risk," represents a
general liability of the Company. In accordance with GAAP and any additional
Cayman Islands regulatory requirements, once the Company begins to issue
variable life insurance policies, the Company will be required to establish
and record policy reserves designed to meet the Company's estimated future
life insurance death benefit obligations. Mortality risk tends to be more
stable when spread across large numbers of insureds. The Company's variable
life insurance policies are expected to be placed with a relatively small
number of high net worth policyholders and provide for substantial death
benefits given expected initial premiums of at least $1.0 million for single
premium policies and $500,000 for multiple premium policies. As a consequence,
the Company's associated mortality risk exposure is likely to be greater in
the aggregate, and its probability of loss less predictable, than that of an
insurer with a broader risk pool. As a result, the Company intends to allocate
a significant portion of its capital, in addition to any policy reserves
required under GAAP and any additional Cayman Islands regulatory requirements,
to cover possible volatility in mortality experience. The Company has adopted
Underwriting Guidelines with the objective of controlling, among other things,
the Company's mortality risk under its variable life insurance policies. The
Company's current Underwriting Guidelines limit the maximum aggregate net
amount at risk the Company will initially assume on any one life to $500,000.
In order to comply with this guideline, the Company intends to reinsure any
liability for amounts in excess of $500,000 per insured.
The principal risk associated with the Company's fixed annuity reinsurance
activities is investment risk. Specifically, the Company is subject to (i)
asset value risk, which is the risk that invested assets supporting the
reinsured business will decrease in value, (ii) reinvestment risk, which is
the risk that interest rates will decline and funds reinvested will earn less
than is necessary to match anticipated liabilities, and (iii)
disintermediation risk, which is the risk that the Company may have to sell
assets at a loss to provide for policyholder withdrawals or to satisfy
liabilities not otherwise properly matched. As part of its reinsurance
activities, the Company may also reinsure in-force blocks of life insurance.
The principal risk associated with the reinsurance of life insurance is
mortality risk. The Company believes that one of the benefits to it resulting
from the reinsurance of life insurance policies covering broad pools of
insureds is that the Company's mortality risk will be spread over a larger
insured population than will be the case with respect to its variable life
insurance policies. To the extent the Company reinsures variable annuity
contracts, the principal risk reinsured will be surrender risk, a risk which
is also associated with the reinsurance of fixed annuities and life insurance.
An additional risk associated with the Company's reinsurance business is the
risk that the ceding insurer will be unable to pay amounts due the Company
because of its own financial difficulties. The Company believes this risk can
be mitigated by conducting an appropriate financial due diligence review of
each cedent. In addition, most reinsurance agreements provide for the
reinsurer to set off amounts it owes against amounts it is due, thus lessening
the credit risk.
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The Company will establish policy reserves and allocate risk capital in
accordance with actuarial standards of practice, GAAP accounting requirements
and any additional Cayman Islands regulatory requirements in an effort to
reflect the level of investment, mortality, surrender and other risks
associated with the annuities and life insurance it will reinsure.
Employ Professional Investment Strategy
The Company will seek to generate attractive levels of investment income
through a professionally managed fixed income investment portfolio. The
Company has entered into investment advisory agreements with PIMCO and General
Re to manage initially approximately % and %, respectively, of the
Company's investment portfolio. The Company may also retain other investment
managers from time to time. Each Investment Manager will have discretionary
authority over the portion of the Company's investment portfolio allocated to
it, subject to the Investment Guidelines. The Company's investment portfolio
(exclusive of assets transferred and invested as part of any coinsurance
transaction) will principally consist of fixed income securities with a
weighted average investment rating of "A." Consistent with the Investment
Guidelines, no more than 15% of the Company's investment portfolio will be
invested in below investment grade fixed income securities.
INDUSTRY TRENDS
The Company's business plan and product focus has been developed to respond
to certain insurance and reinsurance industry trends affecting both
policyholders and issuers of such policies.
Variable Life Insurance Market
The Company will target high net worth individuals and families for whom
existing variable life insurance products do not meet their estate planning
and investment objectives. The Company believes that such individuals and
families prefer to have the cash values included in the separate accounts
underlying their variable life insurance policies managed by private
independent money managers in order to increase the returns on such cash
values as well as to increase the death benefit provided by such policies,
which is required under the Code to increase in proportion to any increase in
such cash values. To date, the Company has received expressions of interest
from potential customers with respect to its variable life insurance products,
although no formal discussions or negotiations have occurred. See "Risk
Factors--Ability to Implement its Business Plan."
As a Cayman Islands company offering variable life insurance policies to
high net worth qualified purchasers, the Company has the flexibility to offer
policies that permit the use of private independent money managers to manage
the policy's separate accounts utilizing investment strategies not typically
available in variable life policies issued by domestic insurers to the general
public. The Company believes that the demand for such products by its target
market will increase as the "baby boomer" generation continues to age and
places greater emphasis on minimizing the impact of the current 55% federal
estate tax and/or utilizing sophisticated estate planning techniques designed
to maximize wealth transfer from generation to generation. Through the use of
the Company's variable life insurance policies and proper estate planning
(e.g., use of insurance trusts), significant policy benefits can be
transferred from one generation to the next on an estate tax-free basis. In
addition, the death benefit provided by the Company's policies can be used to
pay estate taxes and thereby avoid the necessity of liquidating other family
assets.
Under the Company's operating guidelines, its variable life insurance
policies will be offered only to "qualified purchasers" within the meaning of
the 1940 Act, that is individuals or family trusts that have over $5.0 million
in investments (which is defined under the 1940 Act to include certain
securities, real estate held for investment purposes, commodity interests and
physical commodities held for investment purposes, financial contracts entered
into for investment purposes, cash and cash equivalents). See "Glossary of
Selected Life Insurance and Annuity Terms" for a reference to the complete
definition of "qualified purchaser" under the 1940 Act. Based on an industry
source, the number of U.S. households with a net worth of $5.0 million or more
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totaled approximately 277,000 in 1997. The Company will focus primarily on the
very high end of this market (i.e., individuals and families with liquid net
worth in excess of $10.0 million). The Internal Revenue Service Statistics of
Income Bulletin, dated Winter 1997-1998, estimates that as of 1995 (the latest
year available) approximately 27,000 individuals in the U.S. had a net worth
of between $10.0 million and $20.0 million, and in excess of 12,000 had a net
worth of $20.0 million or more. The combined net worth of these two groups was
estimated at approximately $1.1 trillion.
The Company intends to leverage its expertise with respect to variable life
insurance products by offering structured life insurance products, such as
COLI, which target the deferred compensation market. The Company believes that
the principal purchasers of COLI products are Fortune 1000 companies. Recent
tax legislation has phased out the interest deduction for certain COLI policy
loans through 1998 and eliminates it thereafter. The Company does not expect
to issue any COLI products that would be affected by such legislation.
Fixed Annuity and Other Reinsurance Markets
The Company's reinsurance business will initially focus on reinsuring lines
of business that are subject to significant reserve or risk capital
requirements under rating agency requirements and applicable accounting
standards. The Company believes that insurers seeking reinsurance focus
principally on price and, to a lesser extent, on ratings, perceived financial
strength and quality of service in deciding on a reinsurer. The Company
believes the favorable regulatory environment in which it will operate, its
planned low cost operating structure and the absence of a corporate level tax
in the Cayman Islands will enable the Company to offer competitive pricing for
its reinsurance products.
The Company expects to focus its reinsurance activities on in-force blocks
of existing annuities, such as structured settlements, single premium deferred
annuities, immediate annuities and similar contracts which have been issued by
insurers that are no longer actively writing such contracts or that are
seeking relief from the reserve and capital requirements associated with such
contracts. Fixed annuity contracts often require greater commitments of
capital than other product lines, since the investment risk associated with
such contracts is borne by the insurer, not the contract holder. In developing
its business plan with respect to this niche market, the Company has analyzed
publicly available information relating to the existence and size of such
blocks of fixed annuity and other contracts. The Company has also reviewed
transactions involving blocks of fixed annuities and other contracts which
have already been consummated in order to evaluate the existing market for
such transactions, including their structure and terms. The Company has
engaged in preliminary discussions with reinsurance intermediaries regarding
potential transactions and opportunities that the Company's Senior Vice
President and Chief Insurance Officer is aware of based on his knowledge of
the industry and relationships with industry participants. Through these
efforts the Company has identified a number of potentially attractive fixed
annuity reinsurance opportunities, but no formal discussions or negotiations
regarding such opportunities have occurred to date. See "Risk Factors--Ability
to Implement its Business Plan." For a description of certain reinsurance
opportunities the Company is currently pursuing, see "Products Offered by
Scottish Insurance--Reinsurance of Fixed Annuities and Similar Contracts;
Other Reinsurance Opportunities."
The Company believes that, in the past, reinsurers have not focused on the
fixed annuity segment of the market. The Company believes, however, that there
are a number of trends affecting the insurance industry in the U.S. that are
increasing the demand for reinsurance by insurers in this market segment. The
Company believes the primary trend is heightened regulatory and rating agency
scrutiny on risk-based capital and other financial ratios and increased
interest by insurers seeking to, among other things, manage risk-based capital
and other financial ratios through reinsurance. By shifting mortality,
investment and other risks to reinsurers, direct writing insurers are able to
eliminate the assets and liabilities related to their non-core product lines
from their financial statements and release capital reserves supporting such
non-core product lines in order to pursue new business opportunities. The
Company believes that reinsurance is particularly attractive to publicly-
traded
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insurers that are focusing on stockholder value, stock performance and
quarterly operating results. The Company believes that one of the most
effective tools for achieving these objectives is reinsurance, particularly
where the reinsurer reinsures all of the risks associated with such non-core
products. The other significant trend affecting the U.S. insurance industries
is the demutualization of a significant number of insurance companies and
consolidation of such insurance industries. The Company believes that the
primary motivation to demutualize is to gain access to the capital markets. As
a result, the Company believes that newly demutualized insurance companies
will also focus on stock price and quarterly operating results and therefore
will be likely to seek to reinsure as a means to enhance their stock price and
quarterly operating results. Mutual insurance companies may also seek to
utilize reinsurance in advance of announcing a conversion to a stock company
structure in order to enhance their balance sheet in preparation for an
initial public offering. The Company expects that these trends will also
create opportunities to reinsure blocks of life insurance business or other
forms of annuities, although it believes the reinsurance market for such other
lines of business, particularly life insurance, is currently well developed
and quite competitive. See "Business--Products Offered by Scottish Insurance--
Reinsurance of Fixed Annuities and Other Contracts; Other Reinsurance
Opportunities." The Company's reinsurance activities will focus principally on
opportunities in the U.S., although the Company expects to also target
opportunities in the United Kingdom, Western Europe, Canada and Australia. The
Company believes that the insurance industries in such countries have also
been affected by certain of the trends noted above affecting U.S. insurers.
1998 PLAN OF OPERATION
The Company's plan of operation for the remainder of fiscal 1998 is to begin
full-scale implementation of its business plan, including establishing its
variable life insurance business and pursuing transactions principally
involving the reinsurance of fixed annuities. In addition to its primary
focus, the Company may also pursue from time to time transactions involving
the reinsurance of other types of annuity contracts and life insurance
products.
The Company believes that the net proceeds of the Offering will be
sufficient to satisfy its cash requirements for the next several years and
that, at a minimum, it will not be necessary during the six months immediately
following the Offering to raise additional funds to meet the expenditures
required to operate the Company's business. The Company's belief is based on,
among other things, its anticipated low-cost operating structure, in which
most costs are expected to be variable in nature based on the Company's
revenues, and its use principally of referrals rather than a compensated
distribution network to generate sales of its products.
The Company's main operating costs will consist of employee related
expenses, professional and third party fees and travel and promotional
expenditures. Over the next six to nine months, the Company anticipates that
it will hire a financial controller or other financial staff person and an
actuary as well as one or two additional administrative staff persons.
PRODUCTS OFFERED BY SCOTTISH INSURANCE
Variable Life Insurance
Variable life insurance is a "separate account" product under which the net
premiums paid, after deduction of expenses, including the costs of insurance,
are placed for the policyholder in a separate account that is not subject to
claims of the insurance company's general creditors. See "Business--
Regulation--Cayman Islands--Separate Accounts." The cash values of this
separate account are then invested for such policyholder by, in the case of
the Company's policies, a private independent money manager. The Company will
not provide any investment management or advisory services to any
policyholder. Revenues from these policies will consist of amounts assessed
during the period against policyholders' separate account balances for M&E
fees and policy administration and surrender charges. In order to qualify as
life insurance under the Code, a number of complex tests must be met by the
variable life policy. The effect of these tests is to require the death
benefit under the policy to be substantially greater than the cash value. The
difference between the cash value and the death benefit is generally referred
to as the "net amount at risk".
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Under the Code, there are two types of variable life insurance contracts,
referred to as modified endowment contracts and non-modified endowment
contracts. Modified endowment contracts typically involve the payment of a
single premium by the policy owner, while non-modified endowment contracts
typically involve the payment of multiple premiums, generally five or more.
While the death benefit for such contracts may be the same, the initial net
amount at risk for a non-modified endowment contract will be larger than the
initial net amount at risk for a modified endowment contract. For example,
under a variable life insurance policy similar to the policies expected to be
offered by the Company, a modified endowment contract with a single premium of
$10.0 million written for a 60 year old male non-smoker would have an initial
death benefit of approximately $25.3 million and a net amount at risk of
approximately $15.3 million. In contrast, a non-modified endowment contract
with the same initial death benefit would require five annual premiums, four
of approximately $2.1 million each and a final premium of approximately $1.4
million, and would result in an initial net amount at risk of $23.1 million.
The death benefits under both modified endowment contracts and non-modified
endowment contracts are not subject to federal income tax upon receipt by the
beneficiary of such death benefits. While the variable life insurance policy
is in force, the policyholder may borrow against the cash values of a non-
modified endowment contract without triggering adverse tax consequences, but
cannot do so under a modified endowment contract without being deemed to have
received a taxable distribution under the contract. Such a taxable
distribution may also cause the contract to no longer qualify as life
insurance.
Variable life insurance contracts generally have no guaranteed rate of
return on the cash values. The cash value varies based on the investment
results of the separate account managed by the policy's private independent
money manager. Because the Code requires the death benefit under a life
insurance policy to bear a specified minimum ratio to the cash value, the
death benefit under a variable policy may increase if the underlying cash
value increases in order to comply with the Code and maintain the appropriate
net amount at risk. Generally, if the cash value declines, either the policy
owner must pay in additional premiums, or the death benefit must be reduced in
order to maintain the appropriate net amount at risk.
The net amount at risk under either type of policy to be issued by the
Company will represent a general liability of the Company, and the Company
will be required to establish and record policy reserves that will be designed
to meet the Company's estimated future life insurance death benefit
obligations. The Company intends to reinsure a significant portion of its
exposure to each individual policyholder. See "--Underwriting--Variable Life
Insurance."
The Company's variable life insurance policies will be offered and sold only
to qualified purchasers under the 1940 Act, that is individuals or family
trusts that have over $5.0 million in investments (which is defined under the
1940 Act to include certain securities, real estate held for investment
purposes, commodity interests and physical commodities held for investment
purpose, financial contracts entered into for investment purposes, cash and
cash equivalents). See "Glossary of Selected Life Insurance and Annuity Terms"
for a reference to the complete definition of "qualified purchaser" under the
1940 Act.
In addition to offering variable life insurance policies to high net worth
individuals and families, the Company also expects to offer structured life
insurance products which are targeted to the deferred compensation market. In
connection with its arrangements with Westport, the Company expects to offer
variable life insurance to corporate customers in the form of corporate-owned
life insurance ("COLI"), bank-owned life insurance ("BOLI") and trust-owned
life insurance ("TOLI"). These types of policies are primarily expected to be
used in connection with certain deferred compensation and bonus plans for
executive officers and as part of "split-dollar" arrangements in which the
premiums on the life insurance policies are paid in part or in whole by the
employer. The Company may also issue variable life insurance policies in which
a large number of lives of employees are covered under a group policy that is
owned by the employer and used to fund employee benefits. Although certain
COLI products have been affected by recent changes in their tax treatment, the
Company does not intend to offer the types of COLI products that have been the
subject of such tax law changes. See "Risk Factors--Effect of Changes in U.S.
Tax Laws on Variable Life Insurance Sales."
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Reinsurance of Fixed Annuities and Similar Contracts; Other Reinsurance
Opportunities
The Company's reinsurance activities will focus principally on the
reinsurance of the obligations of insurers under fixed annuity contracts. The
Company expects to enter into reinsurance agreements with respect to cedents'
obligations under their individual and group fixed annuity products, including
structured settlements, single premium deferred annuities, immediate annuities
and similar contracts. In addition to its primary focus, the Company may
reinsure other types of annuity and life insurance products, such as
individual life insurance products, including universal, variable and whole
life insurance, and variable annuity contracts if and when attractive
opportunities become available. The Company expects to write reinsurance both
on a direct and brokered basis and to assume risks from both primary insurers
as well as reinsurers.
Reinsurance is an arrangement under which an insurance company (the
"reinsurer") agrees to indemnify another insurance company (the "ceding
company" or "cedent") for all or a portion of the insurance risks underwritten
by the ceding company. It is standard industry practice for primary insurers
to reinsure portions of their insurance risks with other insurance companies
under indemnity reinsurance agreements. Such practice permits primary insurers
to write policies in amounts larger than the risks they are willing to retain.
Reinsurance is generally designed to (i) reduce the net liability of the
ceding company on individual risks, thereby assisting the ceding company in
increasing the volume of business it can underwrite, as well as increasing the
maximum risk it can underwrite on a single life or risk; (ii) assist in
stabilizing operating results by leveling fluctuations in the ceding company's
loss experience; (iii) assist the ceding company in meeting applicable
regulatory capital requirements; (iv) assist in reducing the short-term
financial impact of sales and other acquisition costs; and (v) enhance the
ceding company's financial strength and statutory capital. Ceding companies
typically contract with more than one reinsurer to reinsure their business.
Reinsurance may be written on an indemnity or an assumption basis. However,
the Company presently expects to write only indemnity reinsurance. Indemnity
reinsurance does not discharge a ceding company from liability to the
policyholder; a ceding company is required to pay the full amount of its
insurance obligations regardless of whether it is entitled or able to receive
payments from its reinsurers. By contrast, reinsurance written on an
assumption basis effectively transfers the ceding company's obligations to the
reinsurer, and in some cases eliminates the cedent's further liability.
Reinsurers also may themselves purchase reinsurance, known as retrocession
reinsurance, to limit their own risk exposure. Reinsurance companies enter
into retrocession agreements with other reinsurers ("retrocessionaires") for
reasons similar to those that cause primary insurers to purchase reinsurance.
The Company's business plan contemplates that its reinsurance activities
will focus principally on the reinsurance of the obligations of insurers under
existing fixed annuity contracts. Fixed annuities are a type of "general
account" product because the assets backing fixed annuities are recorded as
part of the insurer's general funds and are subject to the claims of its
general creditors. Annuities are long-term savings vehicles that generally are
marketed to customers over the age of 45 who are planning for retirement and
seeking secure, tax-deferred savings products. United States annuity products
generally enjoy an advantage over certain other retirement savings products
because the payment of United States federal income taxes on the interest
credited on annuity policies is deferred during the investment accumulation
period. General account annuities, whether in the accumulation or the payout
phase, generally have specified or minimum guaranteed performance levels and
consequently involve a greater commitment of capital than separate account
annuities. This is due to the fact that the investment risk associated with
such policies is borne by the insurer, not the policyholder and therefore is
more frequently reinsured.
Insurance companies that issue annuities generally incorporate a number of
features in their annuity products designed to reduce the early withdrawal or
surrender of the policies and to partially compensate the insurer for lost
investment opportunities and costs if policies are withdrawn early. Typically,
the policyholder is permitted to withdraw all or part of the premium paid plus
the amount credited to his or her account, less a penalty or surrender charge
for withdrawals. Often, an insurer's deferred annuity contract provides for
penalty-free partial withdrawals, typically up to 10% of the accumulation
value annually. Annuity policies typically
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impose some surrender charge during the period ranging from the first five
years to the term of the policy. The initial surrender charge on annuity
policies generally ranges from 5% to 10% of the premium and decreases over the
surrender charge period. Surrender charges are set at levels intended to
protect the insurance company from loss on early terminations and to reduce
the likelihood of policyholders terminating their policies during periods of
increasing interest rates, thereby lengthening the effective duration of
policy liabilities and improving the ability to maintain profitability on such
policies.
The Company expects that it will also potentially reinsure various forms of
life insurance products, including universal, variable and whole life
insurance. The primary risk under life insurance policies is mortality risk.
The Company's Underwriting Guidelines limit such risk to $500,000 per insured
and the Company intends to reinsure, or retrocede, any liability for amounts
in excess of $500,000 per insured in order to comply with such guidelines.
Universal life insurance and similar interest rate-sensitive policies provide
life insurance with adjustable rates of return based on applicable interest
rates in effect from time to time. As a consequence, the risks reinsured by
the Company may also include investment risks similar to those for fixed
annuities. As with annuities, all life insurance policies are subject to
surrender risk.
The Company intends to write its reinsurance principally as coinsurance or
modified coinsurance, with the Company assuming all of the liability for the
reinsured contracts. Under modified coinsurance arrangements, the ceding
company retains ownership of the assets supporting the reserves, whereas in
coinsurance ownership of the assets supporting the reserves is transferred to
the reinsurer. The Company may, in certain circumstances, require the ceding
company to retain a portion of the risks related to each such contract (often
called "quota share" or "proportional reinsurance"). Such retention by the
ceding company is not expected to exceed 10% of such risk. Under a coinsurance
or modified coinsurance arrangement, the reinsurer will generally share in all
material risks inherent in the underlying policies, including the risk of loss
due to mortality, surrender and lapse, as well as investment performance.
Current insurance regulations and accounting standards generally require that
all of the risks associated with the ceding company's contracts (other than
those reinsured on a yearly renewable term basis), or the portion thereof
ceded, must be transferred under the terms of a reinsurance contract in order
for the ceding company to take credit for reinsurance in its financial
statements. While reinsured life insurance and annuity contracts are long-term
policies, they may or may not involve long-term investment risk. Management
believes that a significant amount of the fixed annuity contracts and
interest-rate sensitive life insurance policies that the Company intends to
reinsure will provide for an annual (or more frequent) reset of credited
interest rates to market rates. Once a contract is reinsured, it typically
cannot be unilaterally removed from the reinsurance agreement, except pursuant
to a ceding company's recapture rights. Recapture rights permit the ceding
company to reassume all or a portion of the risk formerly ceded to the
reinsurer after an agreed-upon period of time (generally 10 years) and subject
to certain other conditions, including that the ceding company kept its full
retention.
Life reinsurance may also be written on a yearly renewable term basis. Under
a yearly renewable term structure, the reinsurer assumes only the mortality
risk associated with the underlying policies. Under the yearly renewable term
structure, premium rates are generally adjusted annually based on the age and
underwriting class of the insured and the age of the policy.
As a result of relationships developed by Mr. Sulikowski, the Company
executed a binder with a U.S. reinsurer on September 18, 1998 to provide
reinsurance, on a retrocession basis, for approximately 35,000 in-force
universal life insurance policies with an aggregate face value of
approximately $5.0 billion. The reinsurance will be structured on a monthly
renewable term basis with the Company reinsuring only the mortality risk under
such policies, up to $1.5 million per life. The Company intends to retrocede
risks in excess of $500,000 per life; however, the Company does not have any
retrocessional arrangements currently in place. The Company's binder is
conditioned on the consummation of the Offering.
Also as a result of relationships developed by Mr. Sulikowski, the Company
is currently negotiating with another U.S. reinsurer to provide reinsurance,
on a retrocession basis, for approximately 100,000 in-force variable annuity
contracts. The reinsurance is expected to be structured on a modified
coinsurance basis with the Company reinsuring a quota share of such variable
annuities. Based on current account values, such quota share
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reinsurance would represent approximately $200.0 million of separate account
assets. The Company is expected to reinsure surrender and lapse risks related
to such variable annuities but is not expected to assume the risk for any
guaranteed minimum death benefit under any contract in excess of such
contract's actual separate account balance. If the Company is successful in
negotiating a binder for this reinsurance business, such binder will be
conditioned on the consummation of the Offering. No assurance can be given,
however, that the Company will be successful in negotiating such a binder or
if successful, that the terms of such binder will not vary from those set
forth above.
MARKETING
The Company's marketing plan with respect to its variable life insurance
policies is to rely primarily on referrals by financial advisors, investment
managers, private bankers, attorneys and other intermediaries in the U.S. to
generate clients. In order not to be subject to U.S. state insurance
regulation, none of these intermediaries may receive any commissions or other
remuneration from the Company for activities undertaken in the U.S. Such
financial advisors, investment managers, private bankers, attorneys and other
intermediaries are typically compensated by their respective clients. In
addition, representatives of the Company will periodically attend conferences
of financial advisors, investment managers and private bankers held outside
the U.S., and provide exhibits and receptions and engage in other
informational activities at the events to make potential intermediaries aware
of the Company's variable life products. Company representatives are also
expected to attend events of this type held in the U.S., but such
representatives will not be permitted to engage in any promotional activities
on behalf of the Company. The Company may also be subject to similar
restrictions on its activities in jurisdictions outside the U.S. The Company
will develop operating guidelines designed to facilitate the Company's
compliance with such restrictions as and when the Company's operations involve
any such jurisdictions.
In addition, the Company has entered into the Scottish Annuity Agreement
which provides, among other things, that Scottish Annuity will refer potential
clients to the Company as partial consideration for the Company providing
certain insurance administrative services to Scottish Annuity. The Company
believes that this referral arrangement will be advantageous to the Company
because Scottish Annuity sells customized variable annuities that have the
same cash value management features, and the same target market, as the
Company's variable life insurance policies. Scottish Annuity commenced
operations in 1994. According to information supplied by Scottish Annuity, as
July 31, 1998, Scottish Annuity had issued 66 variable annuity contracts which
had aggregate separate account assets of $181.0 million. See "Business--
Scottish Annuity Agreement."
The Company's marketing plan with respect to its reinsurance business is to
seek to capitalize on the relationships developed by its Senior Vice President
and Chief Insurance Officer with international insurance brokers, insurance
consultants, members of the actuarial profession and senior insurance company
executives. To the extent that any such brokers, consultants or actuaries
conduct activities in the U.S. they may not receive any commissions or other
remuneration from the Company. Given the focus of the Company's proposed
reinsurance business (i.e., blocks of in-force contracts), the Company expects
to target a limited number of potential ceding insurers that the Company
believes would benefit from its reinsurance products based on its analysis of
publicly available information and other industry data. Management believes
that in selecting a reinsurer such ceding insurers will focus principally on
price and, to a lesser extent, on ratings, perceived financial strength and
quality of service (i.e., the ability of the reinsurer to assess the insurer's
products and financial situation and tailor a reinsurance product to help the
insurer achieve its objectives). The Company believes that the favorable
regulatory environment in which it will operate, its low cost structure and
the absence of a corporate level tax in the Cayman Islands, will enable it to
price its products competitively. Moreover, the Company believes that the
experience of its Senior Vice President and Chief Insurance Officer, including
his familiarity with U.S. state insurance regulations and accounting rules,
will enable the Company to effectively and efficiently tailor reinsurance
products that satisfy the objectives of ceding insurers.
In an effort to facilitate its marketing efforts, the Company entered into
an agreement in October 1998 with Westport, a developer and administrator of
insurance products for international insurance brokers, insurance companies
and corporations and an affiliate of Westport Worldwide, pursuant to which
Westport will provide
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non-exclusive distribution services with respect to the Company's variable
life insurance products, particularly COLI, BOLI and TOLI products. In
addition, Westport may be retained to provide administration services for
COLI, BOLI and TOLI products that the Company issues. See "Administration and
Consulting Services--Variable Life Insurance."
All of Westport's distribution activities will be undertaken outside the
United States and Westport has agreed to comply with all of the Company's
operating guidelines. For its distribution activities, the Company will issue
to Westport Class C Warrants to purchase up to 750,000 Ordinary Shares at an
exercise price equal to the price to the public in the Offering. The Class C
Warrants are issuable over a four year period on January 1, 2000 and on each
anniversary thereafter (to and including January 1, 2003) in an amount to be
determined by a formula based on the Company's gross profits for the calendar
year preceding the relevant anniversary date from variable life insurance
policies issued by the Company to customers identified and referred by
Westport. The Class C Warrants, to the extent issued, will have a term
expiring ten years from the date of the Offering. See "Description of Shares--
Warrants--Class C Warrants."
UNDERWRITING
Variable Life Insurance
The principal risk associated with the Company's variable life insurance
policies is mortality risk. The death benefit provided by the Company's
variable life insurance policies will vary based on the investment return of
the underlying separate account of assets invested by the policy's private
independent money manager. The difference between the value of the assets in
the underlying separate account and the policy's stated death benefit, known
as the "net amount at risk," represents a general liability of the Company. In
accordance with GAAP and any additional Cayman Islands regulatory
requirements, once the Company begins to issue variable life insurance
policies, the Company will be required to establish and record policy reserves
designed to meet the Company's estimated future life insurance death benefit
obligations. Mortality risk tends to be more stable when spread across large
numbers of insureds. The Company's variable life insurance policies are
expected to be placed with a relatively small number of high net worth
policyholders and to provide substantial death benefits given expected initial
premiums of at least $1.0 million for single premium policies and $500,000 for
multiple premium policies. As a consequence, the Company's associated
mortality risk exposure is likely to be greater in the aggregate, and its
probability of loss less predictable, than an insurer with a broader risk
pool. As a result the Company intends to allocate a significant portion of its
capital, in addition to any policy reserves required by GAAP or any additional
Cayman Islands regulatory requirements, to cover possible volatility in
mortality experience. Furthermore, pursuant to its Underwriting Guidelines,
the Company intends to reinsure a significant portion of the mortality risk
associated with its variable life insurance business with the objective of
limiting the net amount of risk to $500,000 per insured. On September 24,
1998, the Company executed a binder pursuant to which a professional U.S.
reinsurer has agreed to provide facultative reinsurance coverage for the
Company's variable life insurance policies. Under the agreement, the Company
will reinsure, on a yearly renewable term basis, all mortality risk in excess
of its maximum retention of $500,000 per life as currently provided in its
Underwriting Guidelines. The reinsurance binder is conditioned on consummation
of the Offering. Such reinsurer currently has a "AA" claims-paying ability
rating from Standard & Poor's. The Company is pursuing additional facultative
reinsurance arrangements and may potentially enter into one or more such
arrangements in the future. It is the Company's objective that all reinsurers
to whom the Company cedes business will have a claims-paying ability rating of
"A" or higher.
Reinsurance of Annuities and Life Insurance
The principal risk associated with the Company's fixed annuity reinsurance
activities is investment risk. Specifically, the Company is subject to (i)
asset value risk, which is the risk that invested assets supporting the
reinsured business will decrease in value, (ii) reinvestment risk, which is
the risk that interest rates will decline and funds reinvested will earn less
than is necessary to match anticipated liabilities, and (iii)
disintermediation risk, which is the risk that the Company may have to sell
assets at a loss to provide for policyholder withdrawals
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or to satisfy liabilities not otherwise properly matched. The Company will
also be subject to mortality risk with respect to the fixed annuities it
expects to reinsure, although the Company's exposure to such risk is expected
to be more actuarially determinable in light of the broader risk pool
underlying the blocks of business expected to be reinsured.
The Company expects that it will also potentially reinsure various forms of
life insurance products, including universal, variable and whole life
insurance. The primary risk under life insurance policies is mortality risk.
The Company's Underwriting Guidelines limit such risk to $500,000 per insured
and the Company intends to reinsure, or retrocede, any liability for amounts
in excess of $500,000 per insured in order to comply with such guidelines.
Universal life insurance and similar interest-rate sensitive policies provide
life insurance with adjustable rates of return based on applicable interest
rates in effect from time to time. As a consequence, the risks reinsured by
the Company may also include investment risks similar to those for fixed
annuities. As with annuities, all life insurance policies are subject to
surrender risk. To the extent the Company reinsures variable annuity
contracts, the principal risk reinsured will be surrender risk, a risk which
is also associated with the reinsurance of fixed annuities and life insurance.
The Company will determine whether to assume any particular reinsurance
business by considering many factors, including the type of risks to be
covered, actuarial evaluations, historical performance data for the cedent and
the industry as a whole, the cedent's retention, the product to be reinsured,
pricing assumptions, underwriting standards and reputation and financial
strength of the cedent. Pricing of the Company's reinsurance products will be
based on the Company's actuarial models which will incorporate a number of
factors, including assumptions for mortality, expenses, demographics,
persistency and investment returns. In addition, the Company will conduct a
financial due diligence review in an effort to minimize the risk that the
cedent will be unable to pay future amounts due to the Company because of its
own financial difficulties.
The Company's Underwriting Guidelines with respect to its reinsurance
business include the following policies: (i) the ceding company must, among
other things, be domiciled in the United States, United Kingdom, Western
Europe, Canada or Australia, and possess underwriting and claims practices
consistent with industry practice; (ii) the ceding company must be financially
sound in the view of the Board of Directors and must meet all of the financial
requirements to which it is subject by U.S. state regulatory authorities or
the regulatory authorities of applicable foreign jurisdictions; (iii) the
ceding company may not exercise recapture rights for a period of ten years;
and (iv) the Company's aggregate maximum net amount at risk per insured will
be limited to $500,000 after giving effect to any retrocessional arrangements.
The Company will generally assume all of the liabilities under the contracts
it will reinsure, although, in certain circumstances, the Company may require
the ceding company to retain a portion of such liabilities (typically not to
exceed 10%). The Company expects to retrocede to professional reinsurers, on a
case by case basis, certain risks associated with its reinsurance business,
although no such arrangements are currently in place.
Any deviation from the Company's Underwriting Guidelines with respect to its
variable life insurance policies and reinsurance products, as they may be
amended from time to time, will require the approval of the Board of
Directors. The Company expects to review regularly its Underwriting Guidelines
in light of changing industry conditions, market developments and changes in
technology. The Company reserves the right at all times to amend, modify or
supplement its Underwriting Guidelines in response to such factors or for
other reasons, including changing the approved domiciles for reinsurance
clients. The Company also will endeavor to ensure that the Underwriting
Guidelines for its ceding clients are compatible with those of the Company.
Toward this end, the Company anticipates that it will periodically retain
unaffiliated service providers to conduct reviews of the Company's ceding
clients' underwriting and claims personnel and procedures.
RESERVES
The Company will establish and carry policy reserves which are designed to
meet the Company's future financial obligations. Future policy benefits and
policy claims are expected to comprise the majority of the Company's financial
obligations and reserves therefor will be maintained in accordance with GAAP
and any additional Cayman Islands regulatory requirements.
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Policy reserves with respect to variable life policies will be calculated to
meet the Company's estimated future life insurance death benefit obligations.
As variable life insurance policies are issued, the Company's associated
mortality risk may tend to fluctuate more than would be expected than if the
Company had a large pool of insureds. As a result, the Company will allocate a
significant portion of its capital, in addition to any policy reserves
required under GAAP or any additional Cayman Islands regulatory requirement,
to cover possible volatility in mortality experience. For the Company's
reinsurance business, policy reserves will be primarily based on historical
experience and information provided by ceding companies together with the
Company's estimate of future experience with respect to the risks being
reinsured.
The development of policy reserves for the Company's variable life insurance
and reinsurance products will require management to make estimates and
assumptions regarding mortality, lapse, surrender, expense and investment
experience. Actual results could differ materially from those estimates.
Management will monitor actual experience and where circumstances warrant,
will revise its assumptions and the related reserve estimates. When the
liabilities for future policy benefits plus the present value of expected
future gross premiums for a product are insufficient to provide for expected
future benefits and expenses for that product, a premium deficiency reserve
will be established by a charge to income.
SCOTTISH ANNUITY AGREEMENT
Pursuant to the Scottish Annuity Agreement, Scottish Insurance will provide
Scottish Annuity with a variety of insurance administration, accounting and
other services, including (i) investment fund accounting reporting for
variable annuity products, (ii) monitoring compliance with the
diversification, investor control and certain other requirements of the Code,
(iii) administrative services in the issuance by Scottish Annuity of variable
annuity products and documents related thereto, (iv) servicing of variable
annuity products after issuance by Scottish Annuity, (v) accounting for
investment, capital and income and expense activities and maintenance of
individual ledgers for investment funds in which each annuity product is
invested, (vi) preparing financial statements of Scottish Annuity, (vii)
controlling all disbursements from Scottish Annuity and authorizing such
disbursements upon instructions from Scottish Annuity, (viii) preparing tax
returns and similar filings for Scottish Annuity, (ix) preparing forms and
reports required to be filed by Scottish Annuity with Cayman Islands
governmental authorities and (x) keeping the books and records of accounts of
Scottish Annuity. These services will be provided by Scottish Insurance
personnel. Scottish Annuity personnel will conduct all other administrative
and accounting services related to its variable annuity products.
As compensation for the services rendered by Scottish Insurance during the
term of the Scottish Annuity Agreement, Scottish Annuity will pay to Scottish
Insurance quarterly, for each annuity contract issued by Scottish Annuity, an
amount equal to 0.50% per annum of the separate account value of such
contracts, except that such amount will not be less than $25,000 per year.
Management believes that such compensation is reasonable and adequately covers
the costs to be incurred by the Company in providing such services. The amount
of compensation to be received by the Company is not subject to adjustment for
any referrals by or to Scottish Annuity. In addition, Scottish Annuity will
reimburse Scottish Insurance for all out-of-pocket fees, costs and expenses
incurred or advanced by Scottish Insurance on behalf of Scottish Annuity in
connection with the Scottish Annuity Agreement.
In addition, pursuant to the Scottish Annuity Agreement (i) Scottish Annuity
will refrain from the direct or indirect offer or sale of any life insurance
products and will refer only to Scottish Insurance any opportunity or inquiry
that it may receive to issue and sell any life insurance products, and (ii)
Scottish Insurance will refrain from the direct or indirect offer or sale of
any variable annuity products and will refer only to Scottish Annuity any
opportunity or inquiry that it may receive to issue and sell any annuity
products. The Scottish Annuity Agreement provides that the foregoing
limitations do not affect the Company's ability to reinsure life insurance or
variable annuities.
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The Scottish Annuity Agreement will continue in effect until December 31,
1999 and will thereafter be automatically renewed for successive one-year
periods, unless canceled by either party not less than 60 days prior to the
commencement of a renewed term. In addition, the Scottish Annuity Agreement
will terminate earlier under specified circumstances (e.g., bankruptcy or
uncured defaults under the agreement). Scottish Annuity and Scottish Insurance
have agreed to indemnify each other and their respective employees for certain
liabilities.
In addition, pursuant to separate agreements and as partial consideration
for entering into the Scottish Annuity Agreement, Scottish Insurance will
sublease to Scottish Annuity a portion of its leased space at its executive
offices in the Cayman Islands and Scottish Annuity has sold certain of its
computer hardware and software to Scottish Insurance.
ADMINISTRATION AND CONSULTING SERVICES
Variable Life Insurance
As part of its strategy to enter into the variable life insurance business,
the Company intends to develop the internal resources (i.e., the personnel and
computer software) necessary to administer and operate all aspects of such
business. The Company anticipates that it will have such capability by the end
of 1999, although no assurances can be given. While the Company is in the
process of developing such capability, the Company will utilize the services
of third party service providers to complement its own administrative staff.
The primary administrative services which the Company will initially outsource
will be monitoring tax law compliance and preparing policy illustrations. The
Company expects to use Westport and Milliman & Robertson to provide such
services each of which will charge for its services on an hourly basis and for
its reimbursable expenses. The Company expects that with the commencement of
its operations its administration staff will be responsible for most other
administrative services related to the Company's variable life insurance
business, including (i) billing premiums, (ii) preparing of policy account
statements, (iii) processing policy loans, (iv) processing change of policy
holders and beneficiary requests and (v) processing changes in private
independent money managers and policy surrenders. The Company may also utilize
IRM Cayman from time to time to provide certain administrative services.
Reinsurance of Fixed Annuities and Similar Contracts and Other Reinsurance
Business
The Company anticipates that it will handle all aspects of its reinsurance
activities principally through its Senior Vice President and Chief Insurance
Officer and administrative staff. It is expected that they will identify
potential blocks of business that appear to be attractive candidates for
reinsurance, conduct all related financial and product due diligence,
negotiate the relevant reinsurance agreements and monitor such reinsurance
agreements and any related investment portfolio and investment manager
performance. Under the Company's reinsurance agreements, it is expected that
the cedent will retain responsibility for handling all administrative matters
relating to the underlying life insurance policies or annuity contracts. The
Company may from time to time utilize IRM Cayman to provide support for its
reinsurance personnel.
IRM Cayman
The Company has retained IRM Cayman, a member company of IRMG, an affiliate
of Swiss Reinsurance, to act as the Company's licensed insurance manager in
the Cayman Islands and to supplement from time to time the Company's
administrative staff in the Cayman Islands. According to IRM Cayman, IRMG is
the largest independent captive insurance manager in the world today operating
out of 20 offices in North America, Europe, Australia, Africa and Asia. As the
Company's licensed insurance manager in the Cayman Islands, IRM Cayman will
prepare the Company's annual report required to be filed with the Cayman
Monetary Authority, submit any changes or amendments to the Company's business
plan required to be filed with the Cayman Monetary Authority and annually
certify as to the Company's compliance with all applicable requirements of the
Cayman Monetary Authority. IRM Cayman will also act as a co-signatory on all
contracts and bank transactions involving the Company and reconcile all of the
Company's cash accounts on a monthly basis. The Company's agreement with IRM
Cayman may be terminated by either party upon 90 days advance written notice
(or upon shorter notice in specified circumstances). The Company pays IRM
Cayman an annual retainer of $25,000, and IRM Cayman
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bills for its actual services on an hourly basis and for its reimbursable
expenses. Scottish Insurance has agreed to indemnify IRM Cayman and its
officers, employees and agents against certain liabilities. IRM Cayman has
provided similar services to Scottish Annuity since it commenced operations in
1994.
Milliman & Robertson
The Company has entered into an agreement with Milliman & Robertson pursuant
to which Milliman & Robertson will provide certain actuarial services to the
Company, including pricing and reinsurance analysis, from time to time as
requested by the Company. The Company has paid Milliman & Robertson an initial
retainer of $25,000, and Milliman & Robertson bills for its actual services on
an hourly basis and for its reimbursable expenses.
DC Planning
The Company has entered into a consulting services agreement with DC
Planning, an insurance consulting firm that develops life insurance products
and acts as a consultant on insurance matters for high net worth families,
trust companies and other fiduciaries. Under the terms of the agreement, DC
Planning will provide certain consulting services to the Company, including
with respect to the development and implementation of its business plan. DC
Planning will be paid $180,000 a year for a term of three years under the
agreement. Howard Shapiro, who will be a Director of Holdings, is the managing
partner of DC Planning. See "Certain Relationships and Related Party
Transactions."
INVESTMENT PORTFOLIO
General
The Company will seek to generate attractive levels of investment income
through a professionally managed investment portfolio. Following the Offering,
the Company will have approximately $234.6 of capital available for policy
reserves and other corporate purposes. If the Company is unable to effectively
manage its investment portfolio and the risks associated with such
investments, the Company's ability to support its variable life insurance and
reinsurance businesses, and its results of operations and financial condition,
would be adversely affected.
Investment Guidelines
The Company's investment activities will be governed by the Investment
Guidelines as approved by the Investment Committee of the Board of Directors.
The Company's investment portfolio (exclusive of assets transferred and
invested as part of any coinsurance transaction) will principally consist of
fixed income securities with a weighted average investment rating of "A." A
fixed income security rated "A" by Standard & Poor's is somewhat susceptible
to the adverse effects of changes in circumstances and economic conditions;
however, the issuer's capacity to meet its financial commitment on the
security is still strong. The Company will not invest in any fixed income
securities in emerging markets or which are not rated by a major rating
agency. The Investment Guidelines provide that Scottish Insurance may
purchase, among other things, securities issued by the United States
government and its agencies and instrumentalities, securities issued by
foreign governments if rated "A" or better by at least one major rating
agency, certain asset backed securities, preferred stocks, mortgage backed
securities and corporate debt securities (which may include convertible debt
securities, but may not include payment-in-kind corporate securities),
including fixed income securities that are rated below investment grade. The
Investment Guidelines also provide that the fixed income investment portfolio
may not be leveraged and that purchases of securities on margin and short
sales may not be made without approval from the Investment Committee of the
Board of Directors. The Company will be exposed to two primary sources of
investment risk on its fixed income investments: credit risk, relating to the
uncertainty associated with the continued ability of a given obligor to make
timely payments of principal and interest, and interest rate risk, relating to
the market price and/or cash flow variability associated with changes in
market interest rates. The Company will seek to manage credit risk through
industry and issuer diversification and asset allocation and interest rate
risk through interest rate swaps and other hedging techniques.
The Company's investments in fixed income securities that are rated below
investment grade are subject to greater risks than its investments in
investment grade securities. The risk of loss of principal or interest through
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default is greater with such lower-rated securities because they are usually
unsecured and are often subordinated to an issuer's other obligations.
Additionally, the issuers of these securities frequently have high debt levels
and are thus more sensitive to difficult economic conditions, individual
corporate developments and rising interest rates which could impair an
issuer's capacity or willingness to meet its financial commitment on such
lower rated securities. Consequently, the market price of these securities may
be quite volatile, and the risk of loss is greater. As a result, the
Investment Guidelines provide that no more than 15% of the Company's
investment portfolio may be invested in fixed income securities that are rated
below investment grade.
The Company will seek to manage the investment risks associated with any
coinsurance transaction it enters into by structuring its investment of the
assets transferred to it as part of such transaction in an effort to match its
anticipated reinsurance liabilities with respect to such transaction. The
Company expects to invest such assets principally in fixed income and, to a
lesser extent, equity securities. The Company may invest in foreign
denominated securities to manage currency risk if the coinsurance transaction
has a foreign currency component. The Company may also enter into interest
rate swap and other hedging transactions in an effort to manage interest rate
risks associated with such transactions. The Company's use of derivatives to
minimize interest rate risk is expected to be incidental to the Company's
overall investment of the assets transferred to it in any coinsurance
transaction. Any investment in equity securities (expected to be typically not
more than 10% of the assets transferred to it in a coinsurance transaction )
would be made in an effort to enhance the Company's overall return on such
assets. See "Risk Factors--Risks Associated with Investment Activities."
The Company's Investment Guidelines prohibit investments in (i) direct real
estate; (ii) oil and gas limited partnerships; (iii) direct commodities, (iv)
venture capital investments, including private equity or its equivalent; and
(v) U.S. investments consisting of (a) partnership interests, (b) residual
interests in Real Estate Mortgage Investment Conduits, (c) any "pass through"
certificate unless all underlying debt was issued on or after July 18, 1984,
(d) cash settlement options and forwards if no U.S. exchange traded future on
the same property exists, (e) options and forwards on indices which are not
traded on United States exchanges, (f) collateralized mortgage obligations,
unless issued with an opinion of counsel stating that such obligations will be
considered debt for tax purposes, (g) real property interests, including
equity in and convertible debt obligations of real property holding
corporations the sale of which would be subject to tax, (h) any tangible
property, (i) any debt obligation the interest on which does not qualify as
"portfolio interest" or is otherwise subject to U.S. withholding tax and (j)
any investment that does not qualify as a stock or security for purposes of
Section 864(b)(2) of the Code.
Investment Managers
The Company has entered into investment advisory agreements with each of
PIMCO and General Re to manage the Company's fixed income investment
portfolio. PIMCO is one of the largest fixed income money managers in the U.S.
According to information supplied by PIMCO, as of July 1, 1998, PIMCO had
aggregate assets under management of approximately $ billion of which
approximately % consisted of fixed income assets and approximately %
consisted of equity related assets. Under the agreement with PIMCO (the "PIMCO
Agreement"), the Company will pay PIMCO an annual fee equal to 0.50% of the
market value of the first $25.0 million of the Company's assets managed by
PIMCO, 0.375% on the next $25.0 million of the Company's assets under
management and 0.25% thereafter. The foregoing fees are payable quarterly in
advance based on the market value of the Company's investment portfolio
managed by PIMCO at the beginning of the billing period. The PIMCO Agreement
will continue in effect on a month to month basis and may be terminated by
either party effective at the end of the month upon 30 days advance notice.
The Company may also terminate the PIMCO Agreement effective upon notice but
will be obligated to pay the applicable fee for 30 days thereafter.
General Re is also one of the largest fixed income money managers in the
United States. According to information supplied by General Re, as of July 1,
1998, General Re had aggregate assets under management of approximately $
billion of which approximately % consisted of fixed income assets and
approximately % consisted of equity related assets. Under the agreement with
General Re (the "General Re Agreement"), the Company will pay General Re an
annual fee equal to 0.20% of the market value of the first
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$50.0 million of the Company's assets under management and 0.15% of the next
$50.0 million of assets under management of General Re. The fee payable with
respect to the Company's assets under Management in excess of $100.0 million is
negotiable. The foregoing fees are payable at the end of each calendar quarter
for services provided during the prior three months. The General Re Agreement
may be terminated by either party upon thirty days written notice and will
remain in effect until terminated.
The Company expects that the Investment Managers will manage the investment
of assets transferred to the Company in any coinsurance transaction.
Investment Committee Oversight
The Investment Committee of the Company's Board of Directors will
continuously review the Company's investment portfolio and the performance of
its investment managers. The Investment Committee can approve exceptions to the
Company's Investment Guidelines and will periodically review the Company's
Investment Guidelines in light of prevailing market conditions. The investment
managers and the Company's Investment Guidelines may change from time to time
as a result of such reviews.
COMPETITION AND RATINGS
The insurance and reinsurance industries are highly competitive and most of
the companies in such industries are significantly larger and have operating
histories and have access to significantly greater financial and other
resources than does the Company. The Company has no experience competing with
such companies and there can be no assurance that it will be successful.
To the extent that the Company's variable life insurance policies provide for
management of the underlying separate accounts by private independent money
managers, the Company's variable life insurance policies compete with mutual
funds and other investment or savings vehicles. The Company believes that the
most important competitive factor affecting the marketability of its variable
life insurance products is the degree to which it meets customer expectations,
both in terms of returns (after fees and expenses) and service. In addition,
competition in the reinsurance business that the Company intends to underwrite
is based principally on price and, to a lesser extent, ratings, perceived
financial strength and service. Because the Company expects to rely at least
initially on a small number of clients in both its variable life insurance and
reinsurance businesses, such businesses may be more susceptible to the adverse
effects of competition.
Insurance ratings are used by prospective purchasers of insurance policies as
well as insurers and reinsurance intermediaries as an important means of
assessing the financial strength and quality of insurers and reinsurers. In
addition, a ceding company's own rating may be adversely affected by an
unfavorable rating or the lack of a rating of its reinsurer. Duff & Phelps has
assigned Scottish Insurance a preliminary rating of "A" and has assigned
Scottish Insurance a preliminary rating of . These ratings are contingent
on the consummation of the Offering and, in the case of Duff & Phelps, the
Company raising gross proceeds of at least $200.0 million in the Offering. Duff
& Phelps assigns an "A" rating to companies that it characterizes as having, in
its opinion, high claims paying ability, average protection factors and an
expectation of variability in risk over time due to economic or underwriting
conditions. assigns an rating to companies that have, in its opinion,
on balance, excellent financial strength, operating performance and market
profile, as well as strong abilities to meet their ongoing obligations to
policyholders. These ratings represent each rating agency's opinion of Scottish
Insurance's ability to meet its obligations to its policyholders.
Scottish Insurance is not licensed or admitted as an insurer in any
jurisdiction other than the Cayman Islands. Because many jurisdictions do not
permit insurance companies to take credit for reinsurance obtained from
unlicensed or non-admitted insurers on their statutory financial statements
unless appropriate security measures are in place, it is anticipated that the
Company's reinsurance clients will typically require it to post a letter of
credit or provide other collateral through funds withheld or trust
arrangements. If the Company is unable to obtain a letter of credit facility on
commercially acceptable terms or is unable to arrange for such other
collateral, the Company's ability to operate its business will be severely
limited.
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EMPLOYEES
Cayman Islands immigration law mandates that the Company employ only
Caymanians, Cayman status holders or residents with permission to work unless
it can be determined that no such person is qualified to perform the job.
Accordingly, subject to limited exceptions, the Company must advertise in a
Cayman Islands newspaper all open job positions and interview all applicants.
If the Company determines that no Caymanian, Cayman status holder or resident
with permission to work is qualified to perform the job and the Cayman Islands
governmental authority agrees, the Company may hire a non-Caymanian upon the
Cayman Islands government's issuance of a work permit to such individual. Work
permits are generally issued for a specified period of time and must be
renewed upon expiration.
The Company will initially employ three executives and two administrative
staff persons. The two administrative staff persons are Caymanians, while Ms.
Boucher currently holds a valid work permit in connection with her employment
by Scottish Annuity, which expires July 24, 1999, and is currently seeking to
have such work permit amended to cover her employment by Holdings and Scottish
Insurance. Mr. French and Mr. Sulikowski were issued work permits for an
initial one year period commencing on October 2, 1998 and September 14, 1998,
respectively. Messrs. French's and Sulikowski's permits may be automatically
renewed for an additional one year period upon payment of the applicable
renewal fee. See "Risk Factors--Cayman Islands Work Permit." Over the next six
to nine months, the Company anticipates that it will hire a financial
controller or other financial staff person and an actuary as well as one or
two additional administrative staff persons.
PROPERTY
The Company leases approximately 1,000 square feet of office space in George
Town, Grand Cayman, Cayman Islands, British West Indies, at which the
principal offices of Holdings and Scottish Insurance are located, pursuant to
a lease with Queensgate Bank and Trust Company Limited. The lease has a one
year term which will be automatically extended annually for an additional year
unless either party gives written notice to the other at least 90 days prior
to the end of the then current term. The Company's annual rent is $12,500,
which is paid on a quarterly basis. The Company subleases a portion of its
office space to Scottish Annuity in connection with the Scottish Annuity
Agreement. See "Business--Scottish Annuity Agreement."
LEGAL PROCEEDINGS
The Company is not currently involved in any litigation or arbitration. Like
other insurance and reinsurance companies, the Company anticipates that it
will be subject to litigation and arbitration in the ordinary course of its
business.
REGULATION
Cayman Islands
The Company. The Company is a holding company owning all of the outstanding
Ordinary Shares of Scottish Life. The Company is not itself subject to
regulation by any authority in the Cayman Islands, either under insurance or
mutual funds legislation.
The Insurance Law, 1998 Revision. All persons carrying on or desiring to
carry on an insurance (including reinsurance) business in or from within the
Cayman Islands must be licensed under the Insurance Law (1998 Revision) (the
"Insurance Law"). Insurance agents, brokers and those providing insurance
management must also be licensed. Licences are granted by the Governor-in-
Council and applications are reviewed by the Cayman Monetary Authority, which
is generally responsible for the supervision and regulation of financial
services. Information filed with the Cayman Islands authorities pursuant to
the Insurance Law is not generally a matter of public record.
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Application for an insurance license is made to the Cayman Monetary
Authority by filing certain prescribed application forms together with
supporting documentation regarding the suitability of the applicant to carry
on an insurance business. A complete business plan must be filed, and the
licensee is limited to conducting the business described in the plan. All
changes in the nature of the business to be conducted require prior approval
of the Cayman Monetary Authority. License applications must include lists of
all shareholders, directors and officers of the applicant and the Cayman
Monetary Authority must be notified of any subsequent changes therein.
Types of Licenses. There are two broad classes of insurer's license--the
Class A and the Class B license (the latter of which may be restricted or
unrestricted). The Class A license permits the holder to carry on a general
insurance business including the underwriting and reinsurance of Cayman
Islands domestic risks. Persons intending to engage in an insurance business
from within the Cayman Islands, but not to engage in the underwriting of
Cayman Islands insurance risks, may obtain a Class B license. Scottish
Insurance holds an unrestricted Class B insurance license and may therefore
carry on an insurance business from within the Cayman Islands, but may not
engage in any Cayman Islands domestic insurance business. Scottish Insurance's
business plan filed with the Cayman Monetary Authority specifically
contemplates the writing of variable life insurance policies and the
reinsurance of fixed annuities, variable annuities and life insurance.
Although information filed with the Cayman Monetary Authority pursuant to
the Insurance Law is generally not a matter of public record, the Cayman
Monetary Authority has the power to disclose information necessary to enable
foreign regulators to exercise similar functions to those exercised by the
Cayman Monetary Authority. Before doing so, the Cayman Monetary Authority is
required to satisfy itself that the regulator is subject to adequate legal
restrictions on further disclosure and may ask for a suitable undertaking in
this respect. Any such disclosure by the Cayman Monetary Authority must not
relate to customers or policyholders.
Minimum Net Worth. Scottish Insurance is currently required by the Cayman
Monetary Authority to maintain a minimum net worth of $240,000, but a higher
net worth requirement may be imposed by the Cayman Monetary Authority under
certain circumstances. Net worth is defined as the "excess of assets
(including any contingent or reserve fund secured to the satisfaction of the
Governor-in-Council) over liabilities, other than liabilities to partners or
shareholders." The initial net worth must generally consist solely of cash,
although a mix of cash, other assets, guarantees or letters of credit may be
acceptable. Scottish Insurance has initially met this requirement with cash.
Insurance Manager. Unless specifically exempted, a Cayman Islands insurance
company must engage a licensed insurance manager operating in the Cayman
Islands to provide insurance expertise and oversight. The insurance manager
must employ a person who is either qualified by examination as a fellow or
associate of the Chartered Insurance Institute of London, or who is a member
of either the Society of Chartered Property and Casualty Underwriters or the
American Society of Chartered Life Underwriters or is a person of good
standing with such insurance expertise as has been approved by the Governor-
in-Council. Such person must be a member in good standing of the applicable
professional body or of some other professional insurance association
recognized by the Cayman Monetary Authority for the purposes of the Insurance
Law and in good standing with the Cayman Monetary Authority. The insurance
manager must use its best efforts to carry on an insurance and reinsurance
business only with insurers of sound reputation and must comply with certain
reporting requirements imposed by the Cayman Monetary Authority. The insurance
manager must report to the Cayman Monetary Authority with respect to any
concerns it has with respect to any insurance companies with whom it is doing
business. Sixty days written notice must be given to the Cayman Monetary
Authority of any intention to terminate a relationship between an insurer and
a licensed insurance manger. A licensed insurance manager must furnish to the
Cayman Monetary Authority, within six months of the end of its fiscal year, a
list of all insurers for whom the insurance manager performs services and a
written confirmation indicating that the information set out in its licence
application is correct. Scottish Insurance has engaged IRM Cayman as its
licensed insurance manager in the Cayman Islands. See "Business--
Administration."
Separate Accounts. Under the Insurance Law, Cayman Islands insurance
companies carrying on long term business (which will include the writing of
life insurance policies) shall place all receipts by such company of
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funds in respect of its long-term business in a separate long-term business
fund and payments from such long-term business fund shall not be made directly
or indirectly for any purpose other than those of the insurer's long-term
business; provided, however, that such payments can be made with any surplus
disclosed on an actuarial valuation and certified by an actuary to be
distributable otherwise than to policy holders. Every Cayman Island insurance
company carrying on long-term business may establish any number of separate
accounts in respect of respective premiums paid to it to provide (i) annuities
on human life and (ii) contracts of insurance on human life, and such
respective premiums shall be kept segregated one from the other and
independent of all other funds of the Cayman Islands insurer, and,
notwithstanding the provisions of any other written law to the contrary, are
not chargeable with any liability arising from any other business of the
insurer. The scope and the validity of the Cayman Islands law regarding
separate accounts has not been tested in the courts of the Cayman Islands.
Auditors and Annual Compliance. Cayman Islands insurance companies are
required to have their financial statements audited on an annual basis.
Scottish Insurance has engaged Ernst & Young to perform its annual audit. The
auditors must file with the Cayman Monetary Authority a written statement
indicating that the insurer's financial statements have been prepared in
accordance with GAAP or a written statement indicating any deviations
therefrom. In addition, the auditors, the licensed insurance manager or
another approved person must sign and file an annual compliance certificate to
the effect that the insurer has carried on its business in accordance with the
information set out in its license application and that any changes in the
nature of the business have been approved by the Cayman Monetary Authority.
Scottish Insurance has engaged IRM Cayman to file its annual compliance
certificate.
Powers of Supervision of Investments. The Cayman Monetary Authority has the
power to prescribe that specified classes of investments made by a Cayman
Islands insurance company be approved and that any investments in such class
already made be realized within a specified period. Although no assurance can
be given as to the future, to date as far as the Company is aware, this power
has never been exercised by the Cayman Monetary Authority. The Cayman Monetary
Authority also has the power to prescribe, establish and vary required capital
and liquidity margins and ratios.
Powers of Inspection and Intervention. The Cayman Monetary Authority
conducts a general review of insurance practices in the Cayman Islands and,
among other things, may examine the affairs of any licensee for the purpose of
determining whether the provisions of the Insurance Law have been or are being
complied with, that the licensee is in a sound financial position and that it
is carrying on its business in a satisfactory manner. The Cayman Monetary
Authority may obtain access to such books, records, documents, policies,
contracts and securities, and call upon the insurance manager for such
information or explanation, as the Cayman Monetary Authority may reasonably
require for purposes of enabling the Cayman Monetary Authority to perform its
functions under the Insurance Law.
Where the Governor-in-Council is of the opinion that a licensee is carrying
on its business in a manner likely to be detrimental to the public interest or
to the interest of insurers, creditors or policyholders, or in contravention
of the Insurance Law, the Governor-in-Council may require the licensee to take
steps necessary to rectify the matter, suspend the license pending a full
inquiry into the licensee's affairs or, without compensation to the licensee,
revoke the license.
Confidentiality and the Proceeds of Criminal Conduct Law. Under the Cayman
Islands confidentiality laws, it is an offense for a person to divulge
confidential information maintained in the Cayman Islands. However, similar to
initiatives taken in major onshore financial centers, the Cayman Islands has
recently become the first offshore financial center to enact specific
legislation designed to prevent money laundering. Under the new Proceeds of
Criminal Conduct Law, professionals in the Cayman Islands may report to the
authorities in the Cayman Islands transactions they suspect may involve the
proceeds of criminal conduct.
48
<PAGE>
United States and Other
Neither Holdings nor Scottish Insurance will be licensed to do business in
any jurisdiction other than the Cayman Islands. The insurance laws of each
state of the United States and of many foreign countries regulate the sale of
insurance and reinsurance within their jurisdictions by alien insurers, such
as Scottish Insurance, that are not admitted to do business within such
jurisdictions. With some exceptions, the sale of insurance within a
jurisdiction where the insurer is not admitted to do business is generally
prohibited.
Scottish Insurance is expected to conduct its insurance and reinsurance
business through its executive offices in the Cayman Islands and will not
maintain an office, and its personnel will not solicit, advertise, settle
claims or conduct other insurance or reinsurance activities in the United
States or in any other jurisdiction where such activities are prohibited. All
of Scottish Insurance's insurance and reinsurance contracts are expected to be
negotiated, executed, and issued, and all premiums are expected to be
received, at the office of Scottish Insurance in George Town, Grand Cayman or
in such other offices outside the United States as Scottish Insurance may
establish or designate. The Company has received an opinion from its state
insurance counsel, The Bernstein Law Firm, that Scottish Insurance will not be
subject to the insurance laws of any state of the United States.
Many states impose a premium tax (typically 2%-4% of gross premiums) on
insureds obtaining insurance from unlicensed foreign insurers, such as
Scottish Insurance. The premiums charged by Scottish Insurance do not include
any state premium tax. Each insured is responsible for determining whether it
is subject to pay such tax and for paying such taxes as may be due. In
addition, the United States imposes an excise tax on insurance and reinsurance
premiums paid to foreign insurers or reinsurers with respect to risks located
in the United States. The rate of tax applicable to Scottish Insurance is 1%
of its insurance and reinsurance premiums. This excise tax is payable by the
contract owner, although the Company will often file the tax form.
In addition, because many jurisdictions do not permit insurance companies to
take credit for reinsurance obtained from unlicensed or non-admitted insurers
on their statutory financial statements unless appropriate security measures
are in place, it is anticipated that the Company's reinsurance clients will
typically require it to post a letter of credit or provide other collateral
through a funds withheld or trust arrangement.
49
<PAGE>
MANAGEMENT
EXECUTIVE OFFICERS AND DIRECTORS
The table below sets forth the names, ages and titles of the directors
(including those who will become directors) of Holdings and executive officers
of Holdings and Scottish Insurance.
<TABLE>
<CAPTION>
NAME AGE POSITION
---- --- --------
<S> <C> <C>
Michael C. French....... 55 Chairman of the Board, Chief Executive Officer and Director
Michelle L. Boucher..... 31 Senior Vice President, Chief Financial Officer and Secretary
Henryk Sulikowski....... 39 Senior Vice President and Chief Insurance Officer
Michael Austin.......... 62 Director
George Ellis............ 49 Director
Howard Shapiro.......... 52 Director
</TABLE>
MICHAEL C. FRENCH was elected a director and Holdings' Chairman of the Board
and Chief Executive Officer upon its formation. Mr. French was also elected
Chairman of the Board and Chief Executive Officer of Scottish Insurance upon
its formation. Mr. French is also a director of SHL, which currently owns all
of the outstanding stock of Holdings. Mr. French is a founder and a director
of Scottish Annuity and provides legal services to Scottish Annuity pursuant
to a legal services agreement, which will be terminated upon consummation of
the Offering. Mr. French serves as a consultant to the law firm of Jones, Day,
Reavis & Pogue. Mr. French was a Managing Director of Maverick Capital from
1993 to 1996. He practiced law from 1970 to 1992 with the law firm of Jackson
& Walker, L.L.P. where he served as Chairman of the Management Committee from
1988 to 1992. Mr. French also serves as a director of Sterling Software, Inc.,
a computer software provider, and Michaels Stores, Inc., a national specialty
retail chain. He received a B.B.A. and a J.D. (cum laude) from Baylor
University.
MICHELLE L. BOUCHER was elected Holdings' Senior Vice President and Chief
Financial Officer upon its formation. Ms. Boucher was also elected as Scottish
Insurance's Senior Vice President, Chief Financial Officer and Secretary upon
its formation. Ms. Boucher is a director of Scottish Insurance. Ms. Boucher
has served as Manager of Finance and Administration and Secretary of Scottish
Annuity since July 1995. Ms. Boucher, a Canadian national, has resided in the
Cayman Islands since 1992. From April 1992 until October 1993, Ms. Boucher was
an auditor with Price Waterhouse. From October 1993 through June 1995, she was
a Senior Client Accountant in the mutual fund department of MeesPierson
(Cayman) Limited, where she was responsible for administering mutual funds,
trusts and other foreign corporate entities, including calculation of net
asset values and provision of shareholder services. Ms. Boucher is a Chartered
Accountant and holds a BMath from the University of Waterloo.
HENRYK SULIKOWSKI became Senior Vice President and Chief Insurance Officer
of Holdings and Scottish Insurance on July 20, 1998. From February 1997 to
July 1998, Mr. Sulikowski served as a Director of Swiss Re New Markets as well
as Senior Vice President of Atlantic International Reinsurance Company
(Barbados) and a Vice President of Swiss Re Atrium Corporation, companies
which are all affiliated with Swiss Reinsurance Company. During 1995 and 1996,
Mr. Sulikowski was Vice President of Cologne Re and also served as a senior
officer of Cologne Re's Barbados subsidiary. From 1991 to 1995, Mr. Sulikowski
was employed by Guardian Life Insurance Company of America, where he served as
Assistant Vice President in the reinsurance division. Since 1991, Mr.
Sulikowski has been actively involved in regulatory affairs affecting the
insurance and reinsurance industries, both individually and through life
insurance trade associations such as the American Council of Life Insurance
("ACLI") and the National Alliance of Life Companies ("NALC"). He has served
as a member of the State Activities Task Force of the ACLI's Reinsurance
Committee and was instrumental in establishing the NALC's Reinsurance
Committee, having served as its first chairman during 1994 and 1995. Mr.
Sulikowski has been an associate of the Society of Actuaries since 1986 and a
member of the American Academy of Actuaries since 1987. He received a Bachelor
of Science Degree, with honors, from the State University of New York at Stony
Brook.
50
<PAGE>
MICHAEL AUSTIN will be elected a director of Holdings prior to consummation
of the Offering. Mr. Austin retired in 1992 as the Managing Partner of the
Cayman Islands office of KPMG Peat Marwick, an international accounting and
consulting firm. Mr. Austin was a partner resident in the Cayman Islands
office for over 20 years. Since 1992, Mr. Austin has been self-employed as a
chartered accountant. Mr. Austin currently serves as a Director of the Cayman
Monetary Authority for a three-year term expiring on December 31, 1999.
GEORGE ELLIS will be elected a director of Holdings prior to consummation of
the Offering. Mr. Ellis has been a private investor since 1996. From 1986 to
1996, Mr. Ellis served as Chief Financial Officer, from 1993 to 1996, as
Executive Vice President, and from 1994 to 1996, as Treasurer of Sterling
Software, Inc.
HOWARD SHAPIRO will be elected a director of Holdings prior to consummation
of the Offering. Mr. Shapiro is the managing partner of DC Planning and has
been since 1975, when he founded DC Planning, an insurance consulting firm
that develops life insurance products and acts as a consultant on insurance
matters for high net worth families, trust companies and other fiduciaries.
PROVISIONS GOVERNING THE COMPANY'S BOARD OF DIRECTORS
Number and Terms of Directors
The Company currently has one director. Prior to consummating the Offering,
it is anticipated that the Company's shareholder will elect three additional
directors, currently contemplated to be Messrs. Austin, Ellis and Shapiro. At
the time such additional directors are elected, the Board of Directors will be
divided into three classes in accordance with the Company's Articles of
Association. Following their initial terms, all classes of directors shall be
elected to three-year terms.
Committees of the Board
At the time additional directors are elected, the Board will establish
Investment and Audit Committees. Each committee will report to the Board.
Investment Committee. The Investment Committee will establish and monitor
the Company's investment policies and the performance of its investment
managers. See "Business--Investment Portfolio--Investment Guidelines."
Audit Committee. The Audit Committee will review the Company's internal
administrative and accounting controls and recommend to the Board the
appointment of independent auditors. The Audit Committee will also review the
performance of corporate officers and the Company's compensation policies and
procedures, make recommendations to the Board with respect to such policies
and procedures, and may administer stock option plans and incentive
compensation plans of the Company. The Audit Committee will be comprised of a
majority of independent directors.
Compensation of Directors
Directors who are employees of the Company will not be paid any fees or
additional compensation for services as members of the Company's Board of
Directors or any committee thereof. Non-employee Directors will receive cash
in the amount of $20,000 per annum and $1,000 per board or committee meeting
attended. Each non-employee Director will be granted an option to purchase
10,000 Ordinary Shares pursuant to the Stock Option Plan on the date the
Offering is consummated with an exercise price equal to the initial public
offering price. In addition, subject to certain conditions, each non-employee
Director will be granted an option to purchase 2,000 Ordinary Shares at each
successive annual general meeting after December 31, 1998 with an exercise
price equal to the fair market value of the Ordinary Shares at the date of
grant.
EMPLOYMENT AGREEMENTS
Michael C. French. Pursuant to an employment agreement with the Company, Mr.
French has agreed to serve as Chairman of the Board and Chief Executive
Officer of the Company for an initial term ending on June
51
<PAGE>
18, 2001 which term will be automatically increased on June 18, 1999 and each
anniversary thereafter for an additional year, subject to 90 days advance
notice before June 18, 1999 or any subsequent anniversary by either the
Company or Mr. French of an intention not to renew. After the Offering, Mr.
French will receive an annual salary of $450,000 and will be eligible to
participate in all employee benefit programs sponsored by the Company. Mr.
French will also be eligible to receive an annual performance-based bonus in
an amount to be determined by the Company's Board of Directors. Mr. French
will also be entitled to a gross-up of certain excise taxes and to the payment
or reimbursement by the Company of any legal fees or related expenses incurred
by Mr. French with respect to the interpretation, enforcement or defense of
his rights under his Employment Agreement. Upon execution of the employment
agreement, Mr. French received stock options exerciseable for 400,000 Ordinary
Shares (or, if the Underwriters' over-allotment option is exercised in full,
460,000 Ordinary Shares). See "--Stock Option Plan."
Mr. French's Employment Agreement also provides that he will maintain in
confidence all confidential matters that relate to the Company or any
affiliate of the Company and that he will not (i) during his employment or, if
he receives severance compensation from the Company upon termination of his
employment, for one year thereafter, participate in the management of any
business enterprise that engages in substantial and direct competition with
the Company or (ii) during his employment or for one year thereafter, attempt
to influence, persuade or induce (or assist any other person in so persuading
or inducing) any employee of the Company or any subsidiary thereof to give up
employment or a business relationship with the Company or any such subsidiary.
In addition, pursuant to Mr. French's Employment Agreement, Mr. French will be
entitled to severance compensation if (i) the Company terminates his
employment in any case other than death, disability or cause or (ii) (a) Mr.
French terminates his employment upon the Company's failure to maintain him in
his office or position (or a substantially equivalent office or position) with
the Company; (b) an adverse change affecting the authorities, powers,
functions, responsibilities or duties attaching to his position with the
Company; (c) a reduction in his compensation; (d) the failure of any successor
to the Company to assume the Company's duties and obligations under Mr.
French's Employment Agreement; (e) a relocation of the principal location of
Mr. French's work in excess of 25 miles from its original location; (f) a
change in control of the Company (provided Mr. French terminates his
employment within one year of such change in control); or (g) an unremedied
breach of Mr. French's Employment Agreement by the Company or any successor.
The severance compensation that Mr. French will be entitled to upon any such
termination includes a lump sum payment equal to three times the sum of his
annual base salary and incentive compensation at the highest respective rates
in effect for any year prior to the termination and the transportation
expenses of relocating Mr. French and his family to the United States.
Michelle L. Boucher. Pursuant to an employment agreement with the Company,
Ms. Boucher has agreed to serve as Senior Vice President and Chief Financial
Officer of the Company for an initial term ending on June 18, 2001, which term
will be automatically increased on June 18, 1999 and each anniversary
thereafter for an additional year, subject to 90 days advance notice before
June 18, 1999 or any subsequent anniversary by either the Company or Ms.
Boucher of an intention not to renew. After the Offering, Ms. Boucher will
receive an annual salary of $175,000 and will be eligible to participate in
all employee benefit programs sponsored by the Company. Ms. Boucher will also
be eligible to receive an annual performance-based bonus to be determined by
the Company's Board of Directors and will receive a monthly housing and travel
allowance of $7,500. In addition, during the term of Ms. Boucher's employment,
the Company will fund a retirement account for Ms. Boucher in an amount not
less than 10% of Ms. Boucher's annual salary for each year during the term of
her employment. The Company will also pay or reimburse Ms. Boucher for any
legal fees or related expenses incurred by Ms. Boucher with respect to the
interpretation, enforcement or defense of her rights under her Employment
Agreement. Upon execution of the employment agreement, Ms. Boucher received
stock options exercisable for 200,000 Ordinary Shares (or, if the
Underwriters' over-allotment option is exercised in full, 230,000 Ordinary
Shares). See "--Stock Option Plan."
Ms. Boucher's Employment Agreement also provides that she will maintain in
confidence all confidential matters that relate to the Company or any
affiliate of the Company and that she will not (i) during her employment or,
if she receives severance compensation from the Company upon termination of
her employment,
52
<PAGE>
for one year thereafter, participate in the management of any business
enterprise that engages in substantial and direct competition with the Company
or (ii) during her employment or for one year thereafter, attempt to
influence, persuade or induce (or assist any other person in so persuading or
inducing) any employee of the Company or any subsidiary thereof to give up
employment or a business relationship with the Company or any such subsidiary.
Ms. Boucher will be entitled to severance compensation if (i) the Company
terminates her employment in any case other than death, disability or cause or
(ii)(a) Ms. Boucher terminates her employment upon the Company's failure to
maintain Ms. Boucher in her office or position (or a substantially equivalent
office or position) with the Company; (b) an adverse change affecting the
authorities, powers, functions, responsibilities or duties attaching to her
position with the Company; (c) a reduction in her compensation; (d) the
failure of any successor to the Company to assume the Company's duties and
obligations under Ms. Boucher's Employment Agreement; (e) a relocation of the
principal location of Ms. Boucher's work in excess of 25 miles from its
original location; (f) a change in control of the Company (provided Ms.
Boucher terminates her employment within one year of such change in control);
or (g) an unremedied breach of Ms. Boucher's Employment Agreement by the
Company or any successor. The severance compensation that Ms. Boucher will be
entitled to upon any such termination includes a lump sum payment equal to
three times the sum of her annual base salary and incentive compensation at
the highest respective rates in effect for any year prior to the termination.
Ms. Boucher will not be paid by the Company or Scottish Annuity for any
service she renders to Scottish Annuity.
Henryk Sulikowski. Pursuant to an employment agreement with the Company, Mr.
Sulikowski has agreed to serve as Senior Vice President and Chief Insurance
Officer of the Company for an initial term ending on July 20, 2001, which term
will be automatically increased for an additional year, at the expiration of
the initial term and each anniversary thereafter, subject to 90 days advance
notice before such expiration or anniversary by either the Company or Mr.
Sulikowski of an intention not to renew. Mr. Sulikowski will receive an annual
salary of $200,000 and will be eligible to participate in all employee benefit
programs sponsored by the Company. Mr. Sulikowski will also receive a one-time
cash bonus of $75,000 at the earlier of the consummation of the Offering or
December 31, 1998. Mr. Sulikowski will also be eligible to receive an annual
performance-based bonus in an amount to be determined by the Company's Board
of Directors and will receive a monthly housing and travel allowance of
$9,000. The Company will also pay all expenses relating to the relocation of
Mr. Sulikowski and his immediate family to the Cayman Islands. In addition,
during the term of Mr. Sulikowski's employment, the Company will fund a
retirement account for Mr. Sulikowski in an amount not less than 10% of Mr.
Sulikowski's annual salary for each year during the term of his employment.
The Company will also pay or reimburse Mr. Sulikowski for any legal fees or
related expenses incurred by Mr. Sulikowski with respect to the
interpretation, enforcement or defense of his rights under his Employment
Agreement. Upon execution of the employment agreement, Mr. Sulikowski received
stock options exercisable for 300,000 Ordinary Shares (or, if the
Underwriters' over-allotment option is exercised in full, 345,000 Ordinary
Shares). See "--Stock Option Plan."
Mr. Sulikowski's Employment Agreement also provides that he will maintain in
confidence all confidential matters that relate to the Company or any
affiliate of the Company and that he will not (i) during his employment or, if
he receives severance compensation from the Company upon termination of his
employment, for one year thereafter, participate in the management of any
business enterprise that engages in substantial and direct competition with
the Company or (ii) during his employment or for one year thereafter, attempt
to influence, persuade or induce (or assist any other person in so persuading
or inducing) any employee of the Company or any subsidiary thereof to give up
employment or a business relationship with the Company or any such subsidiary.
In addition, pursuant to Mr. Sulikowski's Employment Agreement, Mr. Sulikowski
will be entitled to severance compensation (i) if the Company terminates his
employment in any case other than death, disability or cause, (ii)(a) if Mr.
Sulikowski terminates his employment upon the Company's failure to maintain
him in his office or position (or a substantially equivalent office or
position) with the Company; (b) an adverse change affecting the authorities,
powers, functions, responsibilities or duties attaching to his position with
the Company; (c) a reduction in his compensation; (d) the failure of any
successor the Company to assume the Company's duties and obligations under Mr.
Sulikowski's Employment Agreement; (e) a relocation of the principal location
53
<PAGE>
of Mr. Sulikowski's work to any location other than the Cayman Islands; (f) a
change in control of the Company (provided Mr. Sulikowski terminates his
employment within one year of such change in control); or (g) an unremedied
breach of Mr. Sulikowski's Employment Agreement by the Company or any
successor, or (iii) if the Company notifies Mr. Sulikowski of its intent not
to renew the Employment Agreement at the expiration of its initial term or any
anniversary thereafter. The severance compensation that Mr. Sulikowski will be
entitled to upon any such termination includes a lump sum payment equal to the
sum of (i) the greater of (A) any amounts of Mr. Sulikowski's annual base
salary relating to the first three years of the term of his employment not
paid prior to the termination of his employment, and (B) his annual base
salary at the highest rate in effect for any year prior to the termination,
(ii) the annual incentive compensation at the highest rate in effect for any
year prior to the termination, and (iii) the transportation expenses for
relocating Mr. Sulikowski and his immediate family to the United States.
STOCK OPTION PLAN
The Stock Option Plan authorizes grants of nonqualified stock options to
directors, officers and other key employees of, and consultants and advisors
to, Holdings and its subsidiaries. The Stock Option Plan authorizes the
granting of stock options for up to 2,000,000 Ordinary Shares, subject to
adjustments upon the occurrence of certain events to prevent dilution. Stock
options may be exercisable for up to ten years at such exercise price and upon
such terms and conditions as the Board of Directors or a committee thereof may
determine at the time of the grant. As of the date of this Prospectus, stock
options have been granted under the Stock Option Plan to Mr. French, Ms.
Boucher and Mr. Sulikowski exercisable into 400,000 Ordinary Shares, 200,000
Ordinary Shares, and 300,000 Ordinary Shares, respectively, which, if the
Underwriters' over-allotment option is exercised in full, will increase to
460,000, 230,000 and 345,000, respectively. The stock options were issued to
each upon the execution of their respective employment agreements with the
Company. The stock option agreements shall be terminated, and the stock
options shall not be exercisable, if the closing of the Offering does not
occur by December 31, 1998. Such stock options have an exercise price equal to
the initial public offering price, and, unless terminated, become exercisable
in three equal installments commencing with the first anniversary of the
closing of the Offering. At or prior to the consummation of the Offering, the
Company will grant to Howard Shapiro, in his capacity as a consultant for the
Company, stock options exercisable into 100,000 Ordinary Shares, which, if the
Underwriters' over-allotment option is exercised in full, will increase to
115,000 Ordinary Shares. Such options will have an exercise price equal to the
initial public offering price, and will become exercisable in three equal
installments commencing with the first anniversary of the closing of the
Offering.
In addition, each person who becomes a non-employee Director (other than Mr.
Shapiro), as defined in the Stock Option Plan, at or prior to the consummation
of the Offering will be granted an option to purchase 10,000 Ordinary Shares
on the date the Offering is consummated with an exercise price equal to the
initial public offering price. Such stock options will be exercisable in three
equal installments commencing with the first anniversary of the grant date. In
addition, subject to certain conditions, each non-employee Director (other
than Mr. Shapiro) at or prior to the consummation of the Offering shall be
granted an option to purchase 2,000 Ordinary Shares at each successive annual
general meeting after December 31, 1998. These options will have an exercise
price equal to the fair market value of the Ordinary Shares on the date of
grant and shall be immediately exercisable if granted after the first
anniversary of the consummation of the Offering. If such options are granted
prior to the first anniversary of the consummation of the Offering, such
options shall become exercisable on such anniversary.
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<PAGE>
The following table sets forth information concerning the stock options
granted or to be granted upon consummation of the Offering by the Company to
its executive officers under the Stock Option Plan.
INITIAL OPTION GRANTS
<TABLE>
<CAPTION>
POTENTIAL REALIZABLE VALUE AT
ASSUMED ANNUAL RATE OF
ORDINARY SHARE PRICE
INDIVIDUAL GRANTS APPRECIATION FOR OPTION TERM(4)
------------------------------------------------------- --------------------------------
NUMBER OF
ORDINARY SHARES PERCENT OF TOTAL EXERCISE
UNDERLYING OPTIONS GRANTED TO PRICE EXPIRATION
NAME OPTIONS GRANTED EMPLOYEES PER SHARE DATE 5% 10%
- ---- --------------- ------------------ --------- ---------- --------------- ----------------
<S> <C> <C> <C> <C> <C> <C>
Michael C. French....... 400,000(1) 44.5% $15.00(2) (3) $ 3,773,368 $ 9,562,455
Henryk Sulikowski....... 300,000(1) 33.3 15.00(2) (3) 2,830,026 7,171,841
Michelle L. Boucher..... 200,000(1) 22.2 15.00(2) (3) 1,886,684 4,781,227
</TABLE>
- --------
(1) If the Underwriters' over-allotment option is exercised in full, the
number of Ordinary Shares underlying Mr. French's, Mr. Sulikowski's and
Ms. Boucher's options will increase to 460,000, 345,000 and 230,000
Ordinary Shares, respectively.
(2) The initial public offering price per Ordinary Share.
(3) The options expire on the tenth anniversary of the consummation of the
Offering.
(4) The potential realizable value columns of the table above illustrate the
value that might be realized upon exercise of the options immediately
prior to the expiration of their terms, assuming the specified compounded
rates of appreciation of the price of the Ordinary Shares over the terms
of the options. These amounts do not take into account provisions of
certain options providing for termination of the options following
termination of employment or vesting over periods of up to three years.
The use of the assumed 5% and 10% returns is established by the Commission
and is not intended by the Company to forecast possible future
appreciation of the price of the Ordinary Shares.
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<PAGE>
PRINCIPAL STOCKHOLDERS
All of the issued and outstanding Ordinary Shares of Holdings are currently
owned by SHL, which also owns all of the outstanding capital stock of Scottish
Annuity. Prior to the Offering, SHL intends to distribute the Ordinary Shares
of Holdings to its stockholders, none of whom will own 5% or more of the
Ordinary Shares of Holdings upon consummation of the Offering.
The following table sets forth the beneficial ownership of Ordinary Shares
of Holdings by all persons who are expected to beneficially own 5% or more of
the Ordinary Shares upon consummation of the Offering and by each director and
executive officer of Holdings and by all directors and executive officers as a
group.
<TABLE>
<CAPTION>
NAME AND ADDRESS OF BENEFICIAL OWNERS(1) NUMBER OF SHARES PERCENT OF CLASS
---------------------------------------- ---------------- ----------------
<S> <C> <C>
Michael C. French(2)(3)...................... 570,000 3.1%
Michelle L. Boucher(3)....................... 45,000 *
Henryk Sulikowski(4)......................... -- --
Michael Austin(4)............................ -- --
George Ellis(4).............................. -- --
Howard Shapiro(4)............................ -- --
All directors and executive officers as a
group (six persons)......................... 615,000 3.4%
</TABLE>
- --------
*Less than 1%.
(1) The address for each beneficial owner is c/o Scottish Annuity & Life
Holdings, Ltd., Ugland House, 113 South Church Street, George Town, Grand
Cayman, Cayman Islands, British West Indies.
(2) All 570,000 Ordinary Shares are beneficially owned by an irrevocable trust
of which Mr. French and certain family members are beneficiaries. Mr.
French disclaims beneficial ownership of such Ordinary Shares.
(3) Does not include Ordinary Shares issuable upon exercise of stock options
or the Class A Warrants not exercisable within 60 days.
(4) Does not include Ordinary Shares issuable upon exercise of stock options
not exercisable within 60 days.
CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
The Company has entered into the Scottish Annuity Agreement with Scottish
Annuity. See "Business--Scottish Annuity Agreement" for a summary of the terms
of the Scottish Annuity Agreement. Michael C. French, Chairman, Chief
Executive Officer and a Director of Holdings is a director of Scottish
Annuity. Ms. Boucher, Senior Vice President and Chief Financial Officer of
Holdings, is the Manager of Finance and Administration of Scottish Annuity.
See "Management--Executive Officers and Directors."
The Company has also entered into a consulting services agreement with DC
Planning, an insurance consulting firm that develops life insurance products
and acts as a consultant on insurance matters for high net worth families,
trust companies and other fiduciaries. Under the terms of this agreement, DC
Planning will provide certain consulting services to the Company, including
with respect to the development and implementation of its business plan. DC
Planning will be paid $180,000 a year for a term of three years under the
agreement. Howard Shapiro, who will be a Director of Holdings, is the managing
partner of DC Planning. See "Business--Administration and Consulting
Services--DC Planning." At or prior to consummation of the Offering, Mr.
Shapiro, in his capacity as a consultant for the Company, will be granted
stock options exercisable for 100,000 (up to 115,000 Ordinary Shares if the
Underwiters' over allotment option is exercised in full) Ordinary Shares. See
"Management--Stock Option Plan."
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<PAGE>
DESCRIPTION OF SHARES
The following summarizes certain provisions of the Memorandum of Association
(the "Memorandum") and the Articles of Association (the "Articles") of the
Company. Such summaries do not purport to be complete and are subject to, and
are qualified in their entirety by reference to, all of the provisions of the
Memorandum and the Articles, including the definitions therein of certain
terms. Copies of the Memorandum and Articles are filed as exhibits to the
Registration Statement of which this Prospectus is a part.
GENERAL
Effective immediately prior to the consummation of the Offering, the
authorized share capital of the Company will consist of 100,000,000 Ordinary
Shares, of which 1,500,000 Ordinary Shares were outstanding at October 8,
1998, and 50,000,000 Preferred Shares, par value $0.01 per share, none of
which were outstanding at October 8, 1998.
ORDINARY SHARES
The Ordinary Shares offered hereby, upon receipt of payment therefor, will
be validly issued, fully paid and nonassessable. There are no provisions of
Cayman Islands law, the Memorandum or the Articles which impose any limitation
on the rights of shareholders to hold or vote Ordinary Shares by reason of
them not being residents of the Cayman Islands. The Ordinary Shares will be
subject to the express terms of the Preferred Shares and any series thereof.
Holders of the Ordinary Shares have no pre-emptive, redemption, conversion or
sinking fund rights.
Dividend Rights. Holders of Ordinary Shares are entitled to receive
dividends ratably when and as declared by the Board of Directors out of funds
legally available therefor subject to prior payment of Preferred Shares or any
other class or series of shares with special rights to dividends or
distributions, if any.
Liquidation. In the event of any dissolution, liquidation or winding-up of
the Company, whether voluntary or involuntary, after there are paid or set
aside for payment to creditors and the holders of any Preferred Shares or any
other outstanding shares ranking senior to the Ordinary Shares as to
distribution on liquidation, the full amounts to which they are entitled, the
holders of the then outstanding Ordinary Shares shall be entitled to receive,
pro rata according to the number of Ordinary Shares registered in the names of
such shareholders, any remaining assets of the Company available for
distribution to its shareholders.
Voting Rights. The Articles provide that the quorum required for a general
meeting or extraordinary general meeting of the shareholders is presence in
person or by proxy of persons holding at least 50% of the issued and
outstanding voting shares entitled to vote at such meeting (without giving
effect to the limitation on voting rights described below). A quorum for
considering a "special resolution" is presence in person or by proxy of
persons holding at least 66 2/3% of the issued and outstanding voting shares
entitled to vote at such meeting. Subject to applicable law and any provision
of the Articles requiring a greater majority, the Company may from time to
time by special resolution alter or amend the Memorandum or Articles;
voluntarily liquidate, dissolve or wind-up the affairs of the Company;
increase its share capital; consolidate and divide all or any of its share
capital; subdivide the whole or any part of its share capital; reduce its
share capital, any capital redemption reserve fund, or any share premium
account; or change its name or alter its purposes.
Each holder of Ordinary Shares is entitled to one vote per share on all
matters submitted to a vote of shareholders at any such meeting (subject to
the limitation on voting rights described below). All matters, including the
election of Directors, voted upon at any duly held shareholders' meeting at
which a quorum is present will be carried by a majority of the votes cast at
the meeting by shareholders represented in person or by proxy, except (i)
approval of a merger, consolidation, amalgamation or court-sanctioned
reorganization, or the sale, lease or exchange of all or substantially all of
the assets of the Company (except in the case of a transaction between the
Company and any entity which the Company directly or indirectly controls),
which requires (in
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addition to any regulatory or court approvals) the approval of the holders of
at least 66 2/3% of the outstanding voting shares, voting together as a single
class at a duly convened meeting; (ii) approval of a special resolution which
requires the approval of at least 66 2/3% of the votes cast by such
shareholders represented in person or by proxy at a duly convened meeting;
(iii) amendment of the Articles, which requires the approval of at least 66
2/3% of the outstanding voting shares, voting together as a single class at a
duly convened meeting; and (iv) as otherwise provided in the Articles. Voting
rights with respect to the Ordinary Shares are noncumulative.
The Articles provide that, except as otherwise required by law and subject
to the terms of any class or series of shares issued by the Company having a
preference over the Ordinary Shares as to dividends or upon liquidation to
elect directors in specified circumstances, extraordinary general meetings of
the shareholders of the Company may be called only by (i) a majority of the
Board of Directors; or (ii) at the request in writing of shareholders owning
at least 50% of the outstanding shares generally entitled to vote, provided
such shareholders deposit at the registered office of the Company a notice
stating the objects of the meeting and signed by such holders.
The Articles provide that shareholders may remove one or more or all of the
Directors from office prior to the expiration of the term of such Director or
Directors, but they may do so only with cause and only by approval of a
special resolution.
Limitation on Voting Rights. Each Ordinary Share has one vote, except that
if and for so long as the number of issued Controlled Shares (as defined
below) of any person would constitute 10% or more of the combined voting power
of the issued voting shares of the Company (after giving effect to any prior
reduction in voting power as described below), each such issued Controlled
Share, regardless of the identity of the registered holder thereof, will
confer only a fraction of a vote as determined by the following formula (the
"Formula"):
(T - C) / (9.1 X C)
Where: "T" is the aggregate number of votes conferred by all the issued shares
immediately prior to the application of the Formula with respect to any
particular shareholder, adjusted to take into account any prior reduction
taken with respect to any other shareholder pursuant to the "sequencing
provision" described below; and
"C" is the number of issued Controlled Shares attributable to such
person. "Controlled Shares" of any person refers to all shares of the
Company owned by such person, whether (i) directly, indirectly or
constructively within the meaning of Section 958 of the Code, or (ii)
directly, indirectly or beneficially within the meaning of Section 13(d)
of the Exchange Act (including any shares beneficially owned by any group
of persons as so defined and including any shares that would otherwise be
excluded by the provisions of Section 13(d)(6) thereof) and the rules and
regulations thereunder, as amended from time to time (including any
shares that would otherwise be excluded by the provisions of Rule 13d-4
thereof).
The Formula will be applied successively as many times as may be necessary
to ensure that no person will be a 10% Shareholder (as defined below) at any
time (the "sequencing provision"). For the purposes of determining the votes
exercisable by shareholders as of any date, the Formula will be applied to the
shares of each shareholder in declining order based on the respective numbers
of total Controlled Shares attributable to each shareholder. Thus, the Formula
will be applied first to the votes of shares held by the shareholder to whom
the largest number of total Controlled Shares is attributable and thereafter
sequentially with respect to the shareholder with the next largest number of
total Controlled Shares. In each case, calculations are made on the basis of
the aggregate number of votes conferred by the issued voting shares as of such
date, as reduced by the application of the Formula to any issued voting shares
of any shareholder with a larger number of total Controlled Shares as of such
date. The defined term "10% Shareholder" means a person who owns, in
aggregate,(i) directly, indirectly or constructively within the meaning of
Section 958 of the Code, or (ii) directly, indirectly or beneficially within
the meaning of Section 13(d) of the Exchange Act (including any shares
beneficially owned by any group of persons as so defined and including any
shares that would otherwise be excluded by the provisions of Section 13(d)(6)
thereof) and the rules and regulations thereunder, as amended
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from time to time (including any shares that would otherwise by excluded by
the provisions of Rule 13d-4 thereof), issued shares of the Company
representing 10% or more of the total combined voting rights attaching to the
issued shares of the Company.
The Directors are empowered to require any shareholder to provide
information as to that shareholder's beneficial share ownership, the names of
persons having beneficial ownership of the shares in respect of which such
shareholder is the registered holder, relationships with other shareholders or
other persons or any other facts the directors may deem relevant to a
determination of the number of Controlled Shares attributable to any person.
The Directors may disregard the votes attached to shares of any holder failing
to respond to such a request or submitting incomplete or untrue information.
The directors retain certain discretion to make such final adjustments to
the aggregate number of votes attaching to the voting shares of any
shareholder that they consider fair and reasonable in all the circumstances to
ensure that no person will be a 10% Shareholder at any time.
Restrictions on Transfer. The Articles contain several provisions
restricting the transferability of Ordinary Shares. Except as described below
with respect to transfers of Ordinary Shares executed on the Nasdaq National
Market, the Directors (or their designee) are required to decline to register
a transfer of shares if they have reason to believe that the result of such
transfer would be to increase the number of total Controlled Shares of any
person to 10% or more of a class of the Company's shares. Similarly, the
Company is restricted from issuing or repurchasing Ordinary Shares if such
issuance or repurchase would increase the number of total Controlled Shares of
any person to 10% or more of a class of the Company's shares.
The Directors (or their designee) also may, in their absolute discretion,
decline to register the transfer of any Ordinary Shares, except for transfers
executed on the Nasdaq National Market, if they have reason to believe
(i) that such transfer may expose the Company, any subsidiary or shareholder
thereof or any person insured or reinsured or proposing to be insured or
reinsured by the Company or any such subsidiary to adverse tax or regulatory
treatment in any jurisdiction or (ii) that registration of such transfer under
the Securities Act or under any United States state securities laws or under
the laws of any other jurisdiction is required and such registration has not
been duly effected.
The Company's Directors will not decline to register any transfer of
Ordinary Shares executed on the Nasdaq National Market for the reasons
described above. However, if any such transfer results in the transferee (or
any group of which such transferee is a member) beneficially owning, directly
or indirectly, 10% or more of any class of the Company's shares or causes the
Company's Directors (or their designee) to have reason to believe that such
transfer may expose the Company, any subsidiary or shareholder thereof or any
person insured or reinsured or proposing to be insured or reinsured by the
Company or any such subsidiary, to adverse tax or regulatory treatment in any
jurisdiction, under the Company's Articles, the Directors (or their designee)
are empowered to deliver a notice to the transferee demanding that such
transferee surrender to an agent designated by the Directors (the "Agent")
certificates representing the shares and any dividends or distributions that
the transferee has received as a result of owning the shares. A transferee who
has resold the shares before receiving such notice will be required to
transfer to the Agent the proceeds of the sale, to the extent such proceeds
exceed the amount that the transferee paid for the shares, together with any
dividends or distributions that the transferee received from the Company. As
soon as practicable after receiving the shares and any dividends or
distributions that the transferee received, the Agent will use its best
efforts to sell such shares and any non-cash dividends or distributions to the
extent tradeable as marketable securities in an arm's-length transaction on
the Nasdaq National Market. After applying the proceeds from such sale toward
reimbursing the transferee for the price paid for the shares, the Agent will
pay any remaining proceeds and any cash dividends and distributions to
organizations described in Section 501(c)(3) of the Code that the Directors
designate. The proceeds of any such sale by the Agent or the surrender of
dividends or distributions will not inure to the benefit of the Company or the
Agent, but such amounts may be used to reimburse expenses incurred by the
Agent in performing its duties. The Directors are empowered to require any
shareholder or any person proposing to acquire shares of the Company to
provide information as to such matters as the Directors may require for the
purpose of giving effect
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to the foregoing restrictions on transfer, issuance and repurchase of shares.
The Directors may decline to register any transfer or to effect any issuance
or repurchase of shares if any such shareholder or proposed acquirer fails to
respond to such a request or submits incomplete or untrue information.
Maples and Calder, Cayman Islands counsel to the Company, has advised the
Company that while the precise form of the restrictions on transfers contained
in the Articles is untested, as a matter of general principle, restrictions on
transfers are enforceable under Cayman Islands law and are not uncommon. The
transferor of such Ordinary Shares will be deemed to own such Ordinary Shares
for dividend, voting and reporting purposes until a transfer of such Ordinary
Shares has been registered on the Register of Members of the Company.
The restrictions on voting, transfer and ownership of 10% or more of a class
of the Company's shares described above, as well as the provisions discussed
below under "Anti-Takeover Effects of Articles of Association," may have the
effect of discouraging an attempt to obtain control of the Company through
certain actions other than negotiating with the Board of Directors.
The Articles also provide that the Board may suspend the registration of
transfer of Ordinary Shares for such periods as the Board may determine, but
shall not suspend the registration of transfer for more than 45 days in any
year.
Lien on Shares. The Articles provide that the Company will have a first and
paramount lien on all shares (whether fully paid-up or not) registered in the
name of a shareholder for all debts, liabilities or engagements to or with the
Company (whether presently payable or not) by such shareholder or such
shareholder's estate and that upon notice, the Company may sell any shares on
which the Company has a lien to the extent any sum in respect of which the
lien exists is presently payable. Registration of a transfer of any shares
subject to the Company's lien will operate as a waiver of such lien.
Unilateral Repurchase Right. The Articles provide that if the Company's
Directors determine that beneficial ownership of the Company's issued shares
by any shareholder may result in adverse tax, regulatory or legal consequences
to the Company, any subsidiary or shareholder thereof or any person insured or
reinsured or proposing to be insured or reinsured by the Company or any such
subsidiary, they may, in their absolute discretion, repurchase all or part of
the shares held by such shareholder or direct such shareholder to sell and
transfer all or part of such shares to one or more designated third parties.
The price to be paid for such shares will be the fair market value of such
shares as determined in accordance with the Articles.
Preferred Shares
The Articles authorize the Directors to create and issue one or more class
or series of Preferred Shares and determine the rights and preferences of each
such class or series, to the extent permitted by the Articles and applicable
law. Among other rights, the Directors may determine: (i) the number of shares
of that series and the distinctive designation thereof; (ii) the voting
powers, full or limited, if any, of the shares of that series (subject to the
restrictions on voting described above); (iii) the rights in respect of
dividends on the shares of that class or series, whether dividends shall be
cumulative and, if so, from which date or dates and the relative rights or
priority, if any, of payment of dividends on shares of that class or series
and any limitations, restrictions or conditions on the payment of dividends;
(iv) the relative amounts, and the relative rights or priority, if any, of
payment in respect of shares of that class or series, which the holders of the
shares of that class or series shall be entitled to receive upon any
liquidation, dissolution or winding up of the Company; (v) the terms and
conditions (including the price or prices, which may vary under different
conditions and at different redemption dates), if any, upon which all or any
part of the shares of that class or series may be redeemed, and any
limitations, restrictions or conditions on such redemption; (vi) the terms, if
any, of any purchase, retirement or sinking fund to be provided for the shares
of that class or series; (vii) the terms, if any, upon which the shares of
that class or series shall be convertible into or exchangeable for shares of
any other class or series, or other securities, whether or not issued by the
Company; (viii) the restrictions, limitations and conditions, if any, upon
issuance of indebtedness of the Company so long as any shares of that class or
series are outstanding; (ix) restrictions on the issuance of shares of the
same series or any other series; and (x) any other preferences and relative,
participating, optional or other rights and limitations as the Board of
Directors determines which are not inconsistent with applicable law or the
Articles. The Company has no current intention to issue any Preferred Shares.
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WARRANTS
Class A Warrants. Class A Warrants to purchase an aggregate of 1,550,000
Ordinary Shares have been purchased by Michael C. French, Michelle L. Boucher
and certain companies wholly owned by certain shareholders of SHL , subject to
adjustment as provided in the Class A Warrants. The exercise price of the
Class A Warrants is equal to the initial public offering price per share,
subject to customary anti-dilution adjustments for certain events, including
stock splits. The Class A Warrants become exercisable in three equal annual
installments commencing on the first anniversary of the consummation of the
Offering. In the event of a change of control of the Company, the Class A
Warrants then outstanding will become immediately exercisable. The Class A
Warrants expire on the tenth anniversary of the consummation of the Offering.
The Class A Warrant holders have been granted certain registration rights
with respect to the sale of the Ordinary Shares underlying the Class A
Warrants, and have entered into lock-up agreements with the Underwriters for a
one-year period from the date of this Prospectus. See "Shares Eligible for
Future Sale" and "Underwriting."
Class B Warrants. Upon completion of the Offering, Class B Warrants to
purchase an aggregate of 200,000 Ordinary Shares will be outstanding. The
exercise price of the Class B Warrants is equal to the initial public offering
price, subject to adjustment as provided in the Class B Warrants. The Class B
Warrants become exercisable in three equal annual installments commencing on
the first anniversary of the consummation of the Offering. In the event of a
change of control of the Company, the Class B Warrants then outstanding will
become immediately exercisable. The Class B Warrants will expire on the tenth
anniversary of the consummation of the Offering.
The Class B Warrant holders have been granted certain registration rights
with respect to the sale of the Ordinary Shares underlying the Class B
Warrants, and have entered into lock-up agreements with the Underwriters for a
one-year period from the date of this Prospectus. See "Shares Eligible for
Future Sale" and "Underwriting."
Class C Warrants. The Class C Warrants will be issuable to Westport annually
beginning on or about January 1, 2000 and each January 1 thereafter for a
four-year period. The exercise price of the Class C Warrants will be the
initial public offering price per share, subject to the same adjustment as
provided in the Class A Warrants. The number of Class C Warrants, if any,
issued to Westport will be based upon the amount of annualized "gross profit"
to the Company from the variable life insurance policies issued by the Company
during the preceding 12 calendar months (or, in the case of the first year,
from the date of the Offering to January 1, 2000) to customers identified and
referred by Westport. In general, the number of Class C Warrants to be issued
to Westport on January 1, 2000 and each subsequent anniversary to and
including January 1, 2003 shall be based on the following formula: 25% of the
annualized "gross profit" for the prior year divided by 1/15th of the "warrant
value" on the applicable anniversary date. The warrant values will be
arbitrarily determined by adding $2.50 to the spread between the exercise
price of the Class C Warrants and the market price of the Ordinary Shares on
the applicable anniversary date. By way of example, if the gross profits to
the Company for a given year is $350,000 and the market price of the Ordinary
Shares on the applicable anniversary date is $20 (solely for purposes of
illustration and not as a projection as to the future market value of the
Ordinary Shares), the warrant value will equal $7.50 ($2.50 plus the
difference between the $20 market price and the $15 exercise price) divided by
15, which is $.50, and, thus, the number of Class C Warrants to be issued will
be 25% of $350,000 divided by $.50, which equals 175,000 Class C Warrants. The
arrangement will terminate at January 1, 2001 if the annualized "gross profit"
for business identified and referred by Westport in the preceding two years is
less than $200,000 per year, and at January 1, 2002, if such "gross profit"
for the preceding two calendar years is less than $250,000. At any termination
date the Class C Warrants not yet issued will be canceled. "Gross profits"
will be the amount of annualized revenues (determined in accordance with GAAP)
attributable to business identified and referred by Westport, less any
amortization of deferred acquisition costs payable to third parties in
connection with such business. Westport has been granted certain registration
rights with respect to the sale of the Ordinary Shares underlying the Class C
Warrants.
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OPTIONS
The Company has issued options to purchase an aggregate of 900,000 Ordinary
Shares pursuant to the Stock Option Plan and will issue an additional 120,000
options to non-employee Directors and a consultant of the Company upon
consummation of the Offerings. An additional 980,000 Ordinary Shares are
reserved for future issuance under the Stock Option Plan. If the Underwriters'
over-allotment option is exercised in full, the number of Ordinary Shares
issuable upon the exercise of options granted to management and options to be
granted to non-employee Directors and a consultant of the Company upon
consummation of the Offering will increase to 1,170,000 Ordinary Shares and
the number of Ordinary Shares reserved for future issuance under the Stock
Option Plan will decrease to 830,000. See "Management--Stock Option Plan."
TRANSFER AGENT
The Company's registrar and transfer agent for all Ordinary Shares and
Preferred Shares is Harris Trust and Savings Bank.
DIFFERENCES IN CORPORATE LAW
The Companies Law of the Cayman Islands is modeled after that of England,
and differs in certain respects from such laws generally applicable to United
States corporations and their shareholders. Set forth below is a summary of
certain significant provisions of the Companies Law (including any
modifications adopted pursuant to the Articles) applicable to the Company
which differ from provisions generally applicable to United States
corporations and their shareholders. These statements are a brief summary of
certain significant provisions of Cayman Islands Companies Law, and as such,
do not deal with all aspects of every law that may be relevant to corporations
and their shareholders.
Interested Directors. The Articles provide that any transaction entered into
by the Company in which a director has an interest is not voidable by the
Company nor can such director be liable to the Company for any profit realized
pursuant to such transaction. A director having an interest in a transaction
is entitled to vote in respect of such transaction provided that the nature of
the interest is disclosed at or prior to the vote on such transaction.
Mergers and Similar Arrangements. The Company may acquire the business of
another company and carry on such business when it is within the objects of
the Memorandum. Except as provided below, the approval of the holders of at
least 66 2/3% of the outstanding shares entitled to vote, voting together as a
single class, at a meeting called for such purpose is required for the Company
to (i) merge, consolidate or amalgamate with another company; (ii) reorganize
or reconstruct itself pursuant to a plan sanctioned by the Cayman Islands
courts; or (iii) sell, lease or exchange all or substantially all of its
assets. In order to merge or amalgamate with another company or to reorganize
and reconstruct itself, as a general rule, the relevant plan would need to be
approved in accordance with the provisions of the Companies Law by the holders
of not less than 75% of the votes cast at a general meeting called for that
purpose and thereafter sanctioned by the Cayman Islands court. In respect of
such a court-sanctioned reorganization, while a dissenting shareholder may
have the right to express to a Cayman Islands court his view that the
transaction sought to be approved would not provide the shareholders with the
fair value of their shares, (i) the court ordinarily would not disapprove the
transaction on that ground absent other evidence of fraud or bad faith; and
(ii) if the transaction were approved and consummated, the dissenting
shareholder would have no rights comparable to the appraisal rights (as here
defined, rights to receive payments in cash for the judicially determined
value of their shares) ordinarily available to dissenting shareholders of
United States corporations.
Takeovers. Cayman Islands law also provides that where an offer is made by a
company for shares of another company and, within four months of the offer,
the holders of not less than 90% of the shares which are the subject of the
offer accept, the offeror may by notice require the dissenting shareholders to
transfer their shares on the terms of the offer. A dissenting shareholder may
apply to the court within one month of the notice objecting to the transfer.
The burden is on the dissenting shareholders to show that the court should
exercise its discretion to prevent the requirement of such transfer, which the
court will be unlikely to do unless there is
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evidence of fraud or bad faith or collusion as between the offeror and the
holders of the shares who have accepted the offer as a means of unfairly
forcing out minority shareholders.
Shareholders' Suits. With respect to shareholders' suits, the Cayman Islands
courts ordinarily would be expected to follow English precedent, which would
permit a minority shareholder to commence an action against or a derivative
action in the name of the corporation only (i) where the act complained of is
alleged to be beyond the corporate power of the corporation or illegal; (ii)
where the act complained of is alleged to constitute a fraud against the
minority perpetrated by those in control of the corporation; (iii) where the
act requires approval by a greater percentage of the corporation's
shareholders than actually approved it; or (iv) where there is an absolute
necessity to waive the general rule that a shareholder may not bring such an
action in order that there not be a denial of justice or a violation of the
corporation's memorandum of association.
Indemnification; Exculpation. Cayman Islands law permits a company's
articles of association to provide for the indemnification of officers and
directors, except to the extent that such provision may be held by the Cayman
Islands courts to be contrary to public policy (for instance, for purporting
to provide indemnification against the consequences of committing a crime). In
addition, an officer or director may not be indemnified for his own dishonesty
or wilful neglect or default.
The Articles contain provisions providing for the indemnity by the Company
of an officer, director, employee or agent of the Company, or any person
serving at the request of the Company as an officer, director, employee or
agent of any other company, for threatened, pending or contemplated actions,
suits or proceedings, whether civil, criminal, administrative or
investigative, brought against such indemnified person by reason of the fact
that such person was an officer, director, employee or agent of the Company or
serving in such requested capacity. In addition, the Board of Directors may
authorize the Company to purchase and maintain insurance on behalf of any such
person against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the
Company would have the power to indemnify him against such liability under the
provisions of the Articles.
The Company plans to purchase directors and officers liability insurance
from third parties for its directors and executive officers. The Company also
plans to enter into indemnity agreements with each of its executive officers
and directors.
The Articles provide that directors of the Company shall have no personal
liability to the Company or its shareholders for monetary damages for breach
of fiduciary or other duties as a director, except (i) for any breach of a
director's duty of loyalty to the Company or its shareholders; (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (iii) a payment of a dividend on stock of the
Company or a purchase or redemption of stock of the Company in violation of
law; or (iv) for any transaction from which a director derived an improper
personal benefit.
Inspection of Books and Records. Shareholders of a Cayman Islands
corporation have no general rights to inspect or obtain copies of the list of
shareholders or corporate records of a corporation.
ANTI-TAKEOVER EFFECTS OF ARTICLES OF ASSOCIATION
The Articles contain certain provisions that make more difficult the
acquisition of control of the Company by means of a tender offer, open market
purchase, proxy fight or otherwise. These provisions are designed to encourage
persons seeking to acquire control of the Company to negotiate with the Board
of Directors. The Board of Directors believe that, as a general rule, the
interests of the Company's shareholders would be best served if any change in
control results from negotiations with the Board of Directors. The Board of
Directors would negotiate based upon careful consideration of the proposed
terms, such as the price to be paid to shareholders, the form of consideration
to be paid and the anticipated tax effects of the transaction. However, these
provisions could have the effect of discouraging a prospective acquiror from
making a tender offer or otherwise attempting to obtain control of the
Company. In addition, the Company's Articles of Association provide that
voting rights with respect to Ordinary Shares directly or indirectly
beneficially owned by any person or group of persons directly or indirectly
beneficially owning 10% or more of the outstanding combined voting
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power of the issued shares of the Company will be limited to a voting power of
less than 10%, which significantly limits the ability of a prospective
acquiror to effect a takeover of the Company. To the extent these provisions
discourage takeover attempts, they could deprive shareholders of opportunities
to realize takeover premiums for their shares or could depress the market
price of the Ordinary Shares.
In addition to those provisions of the Articles discussed above, set forth
below is a description of other relevant provisions of the Articles. The
descriptions are intended as a summary only and are qualified in their
entirety by reference to the Articles, which are filed as an exhibit to the
Registration Statement of which this Prospectus is a part.
No Shareholder Action by Written Consent. The Articles provide that any
action required or permitted to be taken by the shareholders of the Company
must be taken at a duly called annual general or extraordinary general meeting
of the shareholders of the Company and may not be taken by consent in writing
or otherwise. The affirmative vote of the holders of at least 66 2/3% of the
outstanding shares generally entitled to vote, voting together as a single
class, is required to amend or repeal, or adopt any provision inconsistent
with, the foregoing provisions of the Articles.
Availability of Shares for Future Issuance. The availability for issue of
shares by the Directors of the Company without further action by shareholders
(except as may be required by Nasdaq National Market requirements) could be
viewed as enabling the Board of Directors to make more difficult a change in
control of the Company, including by issuing Preferred Shares convertible into
Ordinary Shares, warrants or rights to acquire Ordinary Shares to discourage
or defeat unsolicited stock accumulation programs and acquisition proposals
and by issuing shares in a private placement or public offering to dilute or
deter stock ownership of persons seeking to obtain control of the Company. The
Company has no plans to issue any shares other than possibly pursuant to
employee benefit plans.
Shareholder Proposals. The Articles provide that if a shareholder desires to
submit a proposal for consideration at an annual general meeting or
extraordinary general meeting, or to nominate persons for election as
directors, written notice of such shareholder's intent to make such a proposal
or nomination must be given and received by the Secretary of the Company at
the principal executive offices of the Company not later than (i) with respect
to an annual general meeting, 60 days prior to the anniversary date of the
immediately preceding annual general meeting; and (ii) with respect to an
extraordinary general meeting, the close of business on the tenth day
following the date on which notice of such meeting is first sent or given to
shareholders. The notice must describe the proposal or nomination in
sufficient detail for a proposal or nomination to be summarized on the agenda
for the meeting and must set forth (i) the name and address of the
shareholder; (ii) a representation that the shareholder is a holder of record
of shares of the Company entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting to present such proposal or
nomination; and (iii) the class and number of shares of the Company which are
beneficially owned by the shareholder. In addition, the notice must set forth
the reasons for conducting such proposed business at the meeting and any
material interest of the shareholder in such business. In the case of a
nomination of any person for election as a director, the notice shall set
forth: (i) the name and address of any person to be nominated; (ii) a
description of all arrangements or understandings between the shareholder and
each nominee and any other person or persons; (iii) such other information
regarding such nominee proposed by such shareholder as would be required to be
included in a proxy statement filed pursuant to Regulation 14A under the
Exchange Act, whether or not the Company is then subject to such Regulation;
and (iv) the consent of each nominee to serve as a director of the Company, if
so elected. The presiding officer of the annual general meeting or
extraordinary general meeting shall, if the facts warrant, refuse to
acknowledge a proposal or nomination not made in compliance with the foregoing
procedure.
The affirmative vote of the holders of at least 66 2/3% of the outstanding
shares entitled to vote, voting together as a single class, shall be required
to amend or repeal, or adopt any provision inconsistent with, the foregoing
provision of the Articles.
The advance notice requirements regulating shareholder nominations and
proposals may have the effect of precluding a contest for the election of
directors or the introduction of a shareholder proposal if the procedures
summarized above are not followed and may discourage or deter a third party
from conducting a solicitation of proxies to elect its own slate of directors
or to introduce a proposal.
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SHARES ELIGIBLE FOR FUTURE SALE
Upon completion of the Offering, the Company will have outstanding
18,250,000 Ordinary Shares, Class A Warrants to purchase an aggregate of
1,550,000 Ordinary Shares, Class B Warrants to purchase an aggregate of
200,000 Ordinary Shares and options to purchase an aggregate of 1,020,000
Ordinary Shares. If the Underwriters' over-allotment option is exercised in
full, 20,762,500 Ordinary Shares will be outstanding and the number of
Ordinary Shares issuable upon exercise of outstanding options will increase to
1,170,000 Ordinary Shares. The number of Ordinary Shares issuable upon
exercise of the Class A Warrants and Class B Warrants will not change if the
Underwriters' over-allotment option is exercised. The Class A Warrants, Class
B Warrants and the options are not currently exercisable. In addition, Class C
Warrants exercisable for up to 750,000 Ordinary Shares may be issued pursuant
to the agreement with Westport beginning January 1, 2000. See "Management --
Stock Option Plan," and "Description of Shares -- Warrants" and "--Options."
Except as disclosed in "Description of Shares -- Restrictions on Transfer" and
as discussed below with respect to the lock-up agreements, the Ordinary Shares
sold in the Offering will be freely transferable without restriction or
further registration under the Securities Act, except for any of those
Ordinary Shares owned at any time by an "affiliate" of the Company within the
meaning of Rule 144 under the Securities Act (which sales will be subject to
the volume limitations and certain other restrictions of such rule). The
1,500,000 Ordinary Shares issued upon formation of the Company and the
Ordinary Shares underlying the Class A Warrants, Class B Warrants, any Class C
Warrants and the options are, or upon issuance will be, "restricted
securities" as defined in Rule 144 under the Securities Act and may not be
resold in the absence of registration under the Securities Act or pursuant to
an exemption from registration, including such rule.
The Company, its officers and directors, SHL, the shareholders of SHL to
receive Ordinary Shares of Holdings as a result of the SHL Distribution, and
holders of the Class A and Class B have executed agreements (the "lock-up
agreements") pursuant to which each has agreed that they will not, for a
period of one year from the date of this Prospectus, directly or indirectly,
offer, sell, offer to sell, contract to sell, pledge, transfer, assign,
hypothecate, grant any option to purchase or otherwise sell or dispose (or
announce any offer, sale, offer of sale, contract of sale, pledge, transfer,
assignment, hypothecation, grant of any option to purchase or other sale or
disposition) of any Ordinary Shares or other shares of the Company or any
securities convertible into, or exercisable or exchangeable for, any Ordinary
Shares or other shares of the Company without the prior written consent of
Prudential Securities Incorporated, on behalf of the Underwriters, provided
that in the case of holders of the Class B Warrants, consent to waiver of such
restrictions may be granted during such period only with respect to
transactions with certain holders of interests in the limited partnerships
holding such warrants. Such agreements do not prevent the Company from
granting additional options under the Stock Option Plan so long as such
options do not become exercisable until one year from the date of the
Prospectus. The Company also has agreed not to file any registration statement
on Form S-8 with respect to, or otherwise register for resale with the
Commission, Ordinary Shares underlying stock options for a period of one year
from the date of this Prospectus. Prudential Securities Incorporated may, in
its sole discretion, at any time and without notice, release all or any
portion of the securities subject to such lock-up agreements, except that in
the case of holders of the Class B Warrants, such release may be granted only
with respect to transactions with certain holders of interests in the limited
partnerships holding such warrants.
Prior to the Offering, there has not been any public market for the Ordinary
Shares. No prediction can be made as to the effect, if any, future sales of
Ordinary Shares, or the availability of Ordinary Shares for future sale, will
have on the market price of the Ordinary Shares prevailing from time to time.
Sales of substantial amounts of Ordinary Shares in the public market could
adversely affect the prevailing market prices and impair the Company's ability
to raise capital through the sale of equity securities.
The holders of the Class A Warrants and the Class B Warrants have been
granted certain registration rights with respect to the sale of the Ordinary
Shares underlying such warrants. See "Description of Shares--Warrants."
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MATERIAL TAX CONSEQUENCES
The following summary of the taxation of Holdings and Scottish Insurance and
the taxation of Holdings' shareholders is based upon current law. Legislative,
judicial or administrative changes may be forthcoming that could affect this
summary. In the opinion of Jones, Day, Reavis & Pogue, United States tax
counsel to the Company, the discussion of United States tax matters set forth
below states the material United States federal income tax considerations
relevant to an investment in the Ordinary Shares, subject to the
qualifications and assumptions set forth in such discussion. In the opinion of
Maples and Calder, Cayman Islands counsel to the Company, the discussion of
Cayman Islands tax matters set forth below states the material Cayman Islands
tax considerations relevant to an investment in the Ordinary Shares, subject
to the qualifications and assumptions set forth in such discussion. The
statements as to factual matters and the Company's beliefs and intentions as
to factual matters represent the views of the Company's management and do not
represent legal opinions of its counsel.
TAXATION OF HOLDINGS AND SCOTTISH INSURANCE
Cayman Islands
There are no income, corporation, capital gains or other taxes in effect in
the Cayman Islands on the basis of the present legislation. Holdings and
Scottish Insurance have each received an undertaking from the Governor
pursuant to the Tax Concessions Law (1995 Revision) of the Cayman Islands that
in the event of any change to the foregoing Holdings and Scottish Insurance,
for a period of twenty years from the date of the grant of the undertaking,
will not be chargeable to tax in the Cayman Islands on its income or its
capital gains arising in the Cayman Islands or elsewhere and that dividends of
Holdings will be payable without deduction of Cayman Islands tax. No capital
or stamp duties are levied in the Cayman Islands on the issue, transfer or
redemption of Ordinary Shares. The only taxes or fees which will be chargeable
on Holdings in the Cayman Islands are (i) an annual charge calculated on the
nominal amount of the authorized share capital of Holdings, which is currently
$700 per annum and (ii) an annual licensing fee payable in respect of Scottish
Insurance's unrestricted Class B insurance license and a government fee
totaling approximately $6,500.
The Board of Directors of Holdings intend to conduct the affairs and
business of Holdings so that, save for any tax which may be withheld in
certain countries in respect of income or gains, Holdings will not be liable
to tax in any jurisdiction on the income or gains (including gains arising in
the form of discounts or premiums) derived from its investments. The
investments of Holdings will be made with a view of minimizing any such
withholding tax. However, there can be no guarantee that the tax position of
Holdings will not be challenged by the revenue authorities of one or more
countries.
The foregoing is based on current law and practice in the Cayman Islands and
is subject to changes therein.
United States
Holdings' Board of Directors has adopted operating guidelines, developed in
consultation with its United States counsel, that prescribe how Holdings and
Scottish Insurance are to conduct their businesses in a manner consistent with
their intent not to be engaged in a trade or business within the United
States. Accordingly, Holdings and Scottish Insurance do not currently plan to
file United States income tax returns. However, because definitive
identification of activities that constitute being engaged in a trade or
business in the United States is not provided by the Code or regulations or
court decisions, there can be no assurance that the IRS will not contend that
Holdings and/or Scottish Insurance is engaged in a trade or business in the
United States. A foreign corporation deemed to be so engaged would be subject
to United States income tax, as well as branch profits tax, on its income that
is treated as effectively connected with the conduct of that trade or
business. Section 842 of the Code requires that foreign insurance companies
carrying on an insurance business within the United States have a certain
minimum amount of effectively connected net investment income even if they
have no United States source investment income. Otherwise, the income tax, if
imposed, would be based on effectively
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connected income computed in a manner generally analogous to that applied to
the income of a domestic corporation, except that a foreign corporation can
anticipate an allowance of deductions and credits only if it files a United
States income tax return. Under regulations, the foreign corporation would be
entitled to deductions and credits for the taxable year only if the return for
that year is timely filed under rules set forth therein. Penalties may be
assessed for failure to file tax returns. The federal income tax rates
currently are a maximum of 35% for a corporation's effectively connected
income and 30% for branch profits tax. The branch profits tax is imposed on
net income after subtracting the regular corporate tax and making certain
other adjustments.
Foreign corporations not engaged in a trade or business in the United States
are nonetheless subject to United States income tax at a rate of 30% of the
gross amount of certain "fixed or determinable annual or periodical gains,
profits, and income" derived from sources within the United States as
enumerated in Section 881(a) of the Code (such as dividends and interest on
certain investments). Scottish Insurance will be subject to such taxes on
dividends from United States companies in which it makes portfolio
investments.
The United States also imposes an excise tax on insurance and reinsurance
premiums paid to foreign insurers or reinsurers with respect to risks located
in the United States. The rate of tax applicable to premiums paid to Scottish
Insurance is currently 1%.
Other Countries
Scottish Insurance may be subject to taxes imposed by other countries on
dividends or interest received from payors located in those countries.
TAXATION OF SHAREHOLDERS
Cayman Islands Taxation
There is no tax treaty between the Cayman Islands and the U.S. regarding
withholding. Currently, there is no Cayman Islands withholding tax on
dividends paid by Holdings or Scottish Insurance.
United States Taxation--United States Shareholders
General. The following discussion summarizes certain United States federal
income tax consequences relating to the acquisition, ownership and disposition
of Ordinary Shares by a beneficial owner who is (i) a citizen or resident of
the United States, (ii) a United States domestic corporation or (iii)
otherwise subject to United States federal income taxation on a net income
basis in respect of the Ordinary Shares. This summary deals only with Ordinary
Shares acquired by purchasers in the Offering and held as capital assets and
does not deal with the tax consequences applicable to all categories of
investors, some of which (such as broker-dealers who hold Ordinary Shares as
part of hedging or conversion transactions and investors whose functional
currency is not the United States dollar) may be subject to special rules.
Prospective purchasers of the Ordinary Shares are advised to consult their own
tax advisers with respect to their particular circumstances and with respect
to the effects of United States federal, state, local or other laws to which
they may be subject.
Dividends. Distributions with respect to the Ordinary Shares will be treated
as ordinary dividend income to the extent of Holdings' current or accumulated
earnings and profits as determined for United States federal income tax
purposes, subject to the discussion below relating to the potential
application of the "controlled foreign corporation" or "passive foreign
investment company" rules. Such dividends will not be eligible for the
dividends-received deduction allowed to United States corporations under
Section 243 of the Code. The amount of any distribution in excess of Holdings'
current and accumulated earnings and profits will first be applied to reduce
the holder's tax basis in the Ordinary Shares, and any amount in excess of tax
basis will be treated as gain from the sale or exchange of the Ordinary
Shares.
Classification of Holdings and Scottish Insurance as Controlled Foreign
Corporations. Under Section 951(a) of the Code, each "United States
shareholder" of a foreign corporation that is a "controlled foreign
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corporation" (a "CFC") for an uninterrupted period of 30 days or more during a
taxable year who owns shares in the CFC directly or indirectly through foreign
entities on the last day during such taxable year on which the corporation is
a CFC must include in its gross income for United States federal income tax
purposes his or her pro-rata share of the CFC's "subpart F income," even if
the subpart F income is not distributed. Subpart F income includes, among
other things, "insurance income," which is generally defined as income
(including premium and investment income) attributable to the issuing (or
reinsuring) of any insurance or annuity contract in connection with risks
located in, or liabilities arising out of, activities in or lives or health of
residents of a country other than the country under the laws of which the
insurance company is organized. Accordingly, it is anticipated that
substantially all of the income of Scottish Insurance will be subpart F
income. Under Section 951(b) of the Code, any United States corporation,
citizen, resident or other United States person who owns, directly or
indirectly through foreign entities, or is considered to own (by application
of the rules of constructive ownership set forth in Section 958(b) of the
Code, generally applying to family members, partnerships, estates, trusts,
controlled corporations or holders of certain options), 10% or more of the
total combined voting power of all classes of stock of the foreign corporation
will be considered to be a "United States shareholder." In general, a foreign
insurance company such as Scottish Insurance is treated as a CFC only if such
"United States shareholders" collectively own more than 25% of the total
combined voting power or total value of the corporation's stock. Because of
the expected dispersion of Holdings' share ownership following the Offering
and the restrictions on transfer, issuance or repurchase of Ordinary Shares,
and because Holdings' Articles of Association provide that no single
shareholder is permitted to hold 10% or more of the total combined voting
power of Holdings, shareholders of Holdings should not be viewed as United
States shareholders of a CFC for purposes of these rules. However, there can
be no assurance that the IRS will not successfully take a contrary position.
RPII Companies. Different definitions of "United States shareholder" and
"controlled foreign corporation" are applicable in the case of a foreign
corporation which earns "related person insurance income" ("RPII"). RPII is
defined in Section 953(c)(2) of the Code as any "insurance income" of a
foreign corporation attributable to policies of insurance or reinsurance with
respect to which the person (directly or indirectly) insured is a "United
States shareholder" of such corporation or a "related person" to such a
shareholder. In general, "insurance income" is income (including underwriting
premium and investment income) attributable to the issuing of any insurance or
reinsurance contract in connection with risks located in a country other than
the country under the laws of which the CFC is created or organized and which
would be taxed under the provisions of the Code relating to insurance
companies if the income were the income of a domestic insurance company.
Generally, the term "related person" for this purpose means someone who
controls or is controlled by the United States shareholder or someone who is
controlled by the same person or persons who control the United States
shareholder. "Control" is measured by either more than 50% in value or more
than 50% in voting power of stock, applying constructive ownership principles
similar to the rules of Section 958 of the Code. For purposes of inclusion of
Scottish Insurance's RPII in the income of United States shareholders, unless
an exception applies, the term "United States shareholder" includes all United
States persons who own, directly or indirectly, any amount (rather than 10% or
more) of Scottish Insurance's stock. Scottish Insurance will be subject to the
CFC provisions for RPII purposes if such persons collectively own directly,
indirectly or constructively 25% or more of the stock of Scottish Insurance by
vote or value for an uninterrupted period of at least 30 days during any
taxable year. Holdings anticipates that United States persons will own
directly, indirectly or constructively, 25% or more of the stock of Scottish
Insurance by vote or value for the requisite period; accordingly, the RPII
rules of the Code will apply to Scottish Insurance unless one of several
exceptions (discussed below) applies to Scottish Insurance.
RPII Exceptions. The special RPII rules do not apply if (i) direct or
indirect insureds and persons related to such insureds, whether or not United
States persons, are treated at all times during the taxable year as owning
less than 20% of the voting power and less than 20% of the value of the stock
of Scottish Insurance, (ii) RPII, determined on a gross basis, is less than
20% of Scottish Insurance's gross insurance income for the taxable year, (iii)
Scottish Insurance elects to be taxed on its RPII as if the RPII were
effectively connected with the
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conduct of a United States trade or business and to waive all treaty benefits
with respect to RPII or (iv) Scottish Insurance elects to be treated as a
United States corporation. Scottish Insurance does not intend to make either
of the described elections. Thus, only exceptions (i) and (ii) may be
available.
Holdings does not expect that Scottish Insurance will knowingly enter into
variable life insurance or reinsurance arrangements in which, in the
aggregate, the direct or indirect insureds are, or are related to, owners of
20% or more of the Ordinary Shares. If this expectation is correct, exception
(i) will, and exception (ii) may, apply to Scottish Insurance. There can be no
assurance, however, that this will be the case. If neither of these exceptions
were to apply, each United States person owning, directly or indirectly, stock
in Holdings (and therefore, indirectly in Scottish Insurance) at the end of
any taxable year would generally be required to include in its gross income
for United States federal income tax purposes its share of the RPII for the
entire taxable year, determined as if such RPII were distributed
proportionately only to such United States shareholders at that date, but
limited to Scottish Insurance's current-year earnings and profits reduced by
the shareholder's pro-rata share, if any, of certain prior-year deficits in
earnings and profits.
Computation of RPII. In order to determine how much RPII Scottish Insurance
has earned in each taxable year, Holdings intends to obtain and rely upon
information from its insureds to determine whether any of the insureds or
persons related to such insureds own shares of Holdings and are United States
persons. Scottish Insurance intends to include in its insurance application
and renewal forms, or related documents, a provision requesting information as
to whether the policyholders (or a related person) are or have been, and a
notice if they should become, a shareholder of Holdings. In addition, Scottish
Insurance will send a letter after each taxable year to each person who was a
policyholder requesting such policyholder to represent whether it was a
shareholder of Holdings or related to a shareholder during the year. For any
taxable year in which Scottish Insurance's gross RPII is 20% or more of its
gross insurance income for the year, Holdings may also seek information from
its shareholders as to whether direct or indirect owners of its shares at the
end of the year are United States persons so that the RPII may be determined
and apportioned among such persons. To the extent Holdings is unable to
determine whether a direct or indirect owner of shares is a United States
person, Holdings may assume that such owner is not a United States person,
thereby increasing the per share RPII amount for all United States
shareholders. Although Scottish Insurance intends to operate in a manner that
would minimize RPII, there can be no assurance that an investor will not be
required to include amounts in its income in respect of RPII in any taxable
year.
Apportionment of RPII to United States Shareholders. If direct or indirect
insureds and persons related to such insureds were to own more than 20% of the
voting power or value of Scottish Insurance's Ordinary Shares and Scottish
Insurance's RPII determined on a gross basis for any future taxable year were
to be 20% or more of its gross insurance income, every United States person
who owns directly or indirectly Ordinary Shares on the last day of that year
would be required to include in its gross income its share of Scottish
Insurance's RPII for such year, whether or not distributed. A United States
person who owns Ordinary Shares during the Company's taxable year but not on
the last day of the taxable year on which Scottish Insurance is a CFC within
the meaning of the RPII provision of the Code, which would normally be
December 31, would not be required to include in its gross income any part of
Scottish Insurance's RPII. Correspondingly, a United States person who owns
directly or indirectly, Ordinary Shares on the last day of the taxable year on
which Scottish Insurance is a CFC for purposes of those provisions would be
required to include in its income its share of the RPII for the entire year
even though such holder does not own the Ordinary Shares for the entire year.
Uncertainty as to Application of RPII. Regulations interpreting the RPII
provisions of the Code exist only in proposed form. It is not certain whether
these regulations will be adopted in their proposed form or what changes might
ultimately be made thereto or whether any such changes, as well as any
interpretation or application of the RPII rules by the IRS, the courts or
otherwise, might have retroactive effect. The description of RPII herein is
therefore qualified. Accordingly, the meaning of the RPII provisions and the
application thereof to Holdings and Scottish Insurance is uncertain. These
provisions include the grant of authority to the United States Treasury
Department to prescribe "such regulations as may be necessary to carry out the
purpose of this subsection including . . . regulations preventing the
avoidance of this subsection through cross insurance
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arrangements or otherwise." In addition, there can be no assurance that the
IRS will not challenge any determinations by Holdings or Scottish Insurance as
to the amount, if any, of RPII that should be includable in the income of a
holder of Ordinary Shares or that the amounts of the RPII inclusions will not
be subject to adjustment based upon subsequent IRS examination. Each United
States person who is considering an investment in Ordinary Shares should
consult his tax advisor as to the effects of these uncertainties.
Information Reporting. Each United States person who is a direct or indirect
shareholder of the Company on the last day of Holdings' taxable year would be
required to attach to the income tax or information return such holder would
normally file for the period which includes that date a Form 5471 if Scottish
Insurance were a CFC for RPII purposes for any continuous thirty-day period
during its taxable year whether or not any net RPII income is required to be
reported. Scottish Insurance will not be considered to be a CFC for this
purpose and, therefore, Form 5471 will not be required, for any taxable year
in which (i) Scottish Insurance's gross RPII constitutes less than 20% of its
gross insurance income or (ii) less than 20% of the voting power or value of
Scottish Insurance's Ordinary Shares is owned by direct or indirect insureds
and persons related to such insureds. For any year in which Scottish
Insurance's gross RPII constitutes 20% or more of its gross insurance income
and its direct or indirect insureds and persons related to such insureds own
more than 20% of the voting power or value of Scottish Insurance's Ordinary
Shares, Holdings intends to provide Form 5471 to its direct or indirect United
States shareholders for attachment to the returns of shareholders. The amounts
of the RPII inclusions may be subject to adjustment based upon subsequent IRS
examination. A tax-exempt organization would be required to attach Form 5471
to its information return in the circumstances described above. Failure to
file Form 5471 may result in penalties. In addition, United States persons who
at any time own 10% or more of the shares of the Company may have an
independent obligation to file certain information returns.
Tax-Exempt Shareholders. United States tax-exempt organizations would
generally be required to treat subpart F insurance income, including RPII,
that is includable in income by the tax-exempt entity, as unrelated business
taxable income within the meaning of Section 512 of the Code.
Dividend; Basis; Exclusion of Dividends from Gross Income. A United States
shareholder's tax basis in his Ordinary Shares would be increased by the
amount of any RPII that the shareholder includes in his income. The
shareholder could exclude from income the amount of any distribution by
Holdings to the extent of the RPII included in such shareholder's income for
the year in which the distribution was paid or for any prior year. A
shareholder's tax basis in his Ordinary Shares would be reduced by the amount
of such distributions that are excluded from his income. Although, in certain
circumstances, a United States shareholder might be able to exclude from his
income distributions with respect to RPII that a prior shareholder included in
his income, that exclusion would not generally be available to holders who
purchase Ordinary Shares in the public trading markets and are therefore
unable to identify the previous shareholder and demonstrate that such
shareholder had previously included the RPII in his income.
Dispositions of Ordinary Shares. Subject to the discussion below relating to
the potential application of Section 1248 of the Code or the passive foreign
investment company rules, a United States shareholder will, upon the sale or
exchange of any Ordinary Shares, recognize a gain or loss for United States
income tax purposes equal to the difference between the amount realized upon
such sale or exchange and the shareholder's basis in the Ordinary Shares. If
the shareholder's holding period for such Ordinary Shares is more than
eighteen months, any gain will be subject to tax at a current maximum marginal
tax rate of 20% for individuals and 35% for corporations.
Section 1248 of the Code provides that if a United States person disposes of
stock in a foreign corporation and such person owned directly, indirectly or
constructively 10% or more of the voting shares of the corporation at any time
during the five-year period ending on the date of disposition when the
corporation was a CFC, any gain from the sale or exchange of the shares may be
treated as ordinary income to the extent of the CFC's previously untaxed
earnings and profits during the period that the shareholder held the shares
(with certain adjustments). A 10% United States shareholder may in certain
circumstances be required to report a disposition of shares of a CFC by
attaching IRS Form 5471 to the United States income tax or information return
that the shareholder would normally file for the taxable year in which the
disposition occurs.
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Section 953(c)(7) of the Code generally provides that Section 1248 will also
apply to any sale or exchange of shares in a foreign corporation that earns
RPII if the foreign corporation would be taxed as an insurance company if it
were a domestic corporation, regardless of whether the selling shareholder is
or was a 10% shareholder or whether RPII constitutes 20% or more of the
corporation's gross insurance income. Existing Treasury regulations do not
address whether Section 1248 of the Code and the requirement to file Form 5471
would apply if the foreign corporation is not a CFC but the foreign
corporation has a subsidiary that is a CFC or that would be taxed as an
insurance company if it were a domestic corporation (although, as discussed
above, shareholders of 10% or more of the shares of Holdings may have an
independent obligation to file Form 5471).
Section 1248 of the Code and the requirement to file Form 5471 should not
apply to dispositions of Ordinary Shares because Holdings does not intend to
directly engage in the insurance business and, under proposed regulations,
these provisions appear to be applicable only in the case of shares of
corporations that are directly engaged in the insurance business. There can be
no assurance, however, that the IRS will interpret the proposed regulations in
this manner or that the proposed regulations will not be amended or
promulgated in final form so as to provide that Section 1248 of the Code and
the requirement to file Form 5471 will apply to dispositions of Ordinary
Shares. In that event, Holdings would notify shareholders that Section 1248 of
the Code and the requirement to file Form 5471 will apply to dispositions of
Ordinary Shares. Thereafter, Holdings would send a notice after the end of
each calendar year to all persons who were shareholders during the year
notifying them that Section 1248 of the Code and the requirement to file Form
5471 apply to dispositions of Ordinary Shares. Holdings would attach to this
notice a copy of Form 5471 completed with all Holdings information and
instructions for completing the shareholder information.
Foreign Tax Credit. Because it is anticipated that United States persons
will own a majority of Holdings' shares, only a portion of the current income
inclusions under the CFC, RPII and passive foreign investment company rules,
if any, and of dividends paid by Holdings (including any gain from the sale of
Ordinary Shares that is treated as a dividend under Section 1248 of the Code)
will be treated as foreign source income for purposes of computing a
shareholder's United States foreign tax credit limitations. Holdings will
consider providing shareholders with information regarding the portion of such
amounts constituting foreign source income to the extent such information is
reasonably available. It is also likely that substantially all of the RPII and
dividends that are foreign source income will constitute either "passive" or
"financial services" income for foreign tax credit limitation purposes. Thus,
it may not be possible for most United States shareholders to utilize excess
foreign tax credits to reduce United States tax on such income.
Passive Foreign Investment Companies. Sections 1291 through 1298 of the Code
contain special rules applicable to foreign corporations that are "passive
foreign investment companies" ("PFICs"). In general, a foreign corporation
will be a PFIC if 75% or more of its income constitutes "passive income" or
50% or more of its assets produce passive income. If Holdings were to be
characterized as a PFIC, its United States shareholders would be subject to a
penalty tax at the time of their sale of, or receipt of an "excess
distribution" with respect to, their Ordinary Shares, unless such shareholders
(i) elected from the outset to be taxed on their pro-rata share of the
Company's earnings whether or not such earnings were distributed or (ii)
elected to mark their Ordinary Shares to market as of the end of each taxable
year and to treat as ordinary income (or loss) the annual appreciation (or
depreciation) in the value of such shares. In general, a shareholder receives
an "excess distribution" if the amount of the distribution is more than 125%
of the average distribution with respect to the stock during the three
preceding taxable years (or shorter period during which the taxpayer held the
stock). In general, the penalty tax is computed by assuming that the excess
distribution or gain (in the case of a sale) with respect to the shares was
taxed in equal annual portions at the highest applicable ordinary income tax
rate throughout the holder's period of ownership, and that interest accrued on
each tax amount for each prior year from the due date of such prior year's
return. The interest charge is equal to the applicable rate imposed on
underpayments of United States federal income tax for such period.
For the above purposes, passive income is defined to include income of the
kind which would be foreign personal holding company income under Section
954(c) of the Code, and generally includes interest, dividends,
71
<PAGE>
annuities and other investment income. However, the PFIC statutory provisions
contain an express exception for income "derived in the active conduct of an
insurance business by a corporation which is predominately engaged in an
insurance business." This exception is intended to ensure that income derived
by a bona fide insurance company is not treated as passive income, except to
the extent such income is attributable to financial reserves in excess of the
reasonable needs of the insurance business. Scottish Insurance expects to be
primarily and predominantly engaged in an insurance business and does not
expect to have financial reserves in excess of the reasonable needs of its
insurance business. The PFIC statutory provisions (unlike the RPII provisions
of the Code) contain a look-through rule that states that, for purposes of
determining whether a foreign corporation is a PFIC, such foreign corporation
shall be treated as if it received "directly its proportionate share of the
income," and as if it "held its proportionate share of the assets," of any
other corporation in which it owns at least 25% by value of the stock. While
no explicit guidance is provided by the statutory language, under the look-
through rule Holdings should be deemed to own the assets and to have received
the income of Scottish Insurance directly for purposes of determining whether
Holdings qualifies for the aforementioned insurance exception. This
interpretation of the look-through rule is consistent with the legislative
intention generally to exclude bona fide insurance companies from the
application of PFIC provisions. There can be no assurance, however, as to what
positions the IRS or a court might take in the future on whether Holdings or
Scottish Insurance is predominantly engaged in an insurance business and does
not have financial reserves in excess of the reasonable needs of such
business. United States persons who are considering an investment in Ordinary
Shares should consult their tax advisors as to the effects of the PFIC rules.
Other. Information reporting to the IRS by paying agents and custodians
located in the United States will be required with respect to payments of
dividends on the Ordinary Shares to United States persons. Thus, a holder of
Ordinary Shares may be subject to backup withholding at the rate of 31% with
respect to dividends paid to such persons, unless such holder (a) is a
corporation or comes within certain other exempt categories and, when
required, demonstrates this fact, or (b) provides a taxpayer identification
number, certifies as to no loss of exemption from backup withholding and
otherwise complies with applicable requirements of the backup withholding
rules. Backup withholding is not an additional tax and may be credited against
a holder's regular federal income tax liability.
United States Taxation--Non-United States Shareholders
Subject to certain exceptions, non-United States persons will be subject to
United States federal income tax on dividend distributions with respect to,
and gain realized from the sale or exchange of, Ordinary Shares only if such
dividends or gains are effectively connected with the conduct of a trade or
business within the United States. Nonresident alien individuals will not be
subject to United States estate tax with respect to Ordinary Shares of
Holdings.
* * *
The foregoing discussion is based upon current law. The tax treatment of an
owner of Ordinary Shares, or a person treated as an owner of Ordinary Shares
for United States federal income, state, local or non-United States tax
purposes, may vary depending on the owner's particular tax situation.
Legislative, judicial or administrative changes or interpretations may be
forthcoming that could be retroactive and could affect the tax consequences to
owners of Ordinary Shares. PROSPECTIVE INVESTORS SHOULD CONSULT THEIR OWN TAX
ADVISORS CONCERNING THE UNITED STATES FEDERAL, STATE, LOCAL AND NON-UNITED
STATES TAX CONSEQUENCES OF OWNERSHIP AND DISPOSITION OF THE ORDINARY SHARES.
72
<PAGE>
UNDERWRITING
The underwriters named below (the "Underwriters"), for whom Prudential
Securities Incorporated, , , and are acting as
representatives (the "Representatives"), have severally agreed, subject to the
terms and conditions contained in the underwriting agreement (the
"Underwriting Agreement"), to purchase from the Company the number of Ordinary
Shares set forth below opposite their respective names:
<TABLE>
<CAPTION>
NUMBER OF
UNDERWRITER ORDINARY SHARES
----------- ---------------
<S> <C>
Prudential Securities Incorporated.........................
----------
Total...................................................... 16,750,000
==========
</TABLE>
The Company is obligated to sell, and the Underwriters are obligated to
purchase, all of the Ordinary Shares set forth above if any are purchased.
The Underwriters, through the Representatives, have advised the Company that
they propose to offer the Ordinary Shares set forth above initially at the
public offering price set forth on the cover page of this Prospectus; that the
Underwriters may allow to selected dealers a concession of $ per
Ordinary Share; and that such dealers may reallow a concession of $ per
Ordinary Share to certain other dealers. After the Offering, the initial
public offering price and the concessions may be changed by the
Representatives.
The Company has granted to the Underwriters an over-allotment option,
exercisable for 30 days from the date of this Prospectus, to purchase up to an
additional 2,512,500 Ordinary Shares at the initial public offering price per
share, less underwriting discounts and commissions, as set forth on the cover
page of this Prospectus. The Underwriters may exercise such option solely for
the purpose of covering any over-allotments incurred in the sale of the
Ordinary Shares offered hereby. To the extent such option is exercised, each
Underwriter will become obligated, subject to certain conditions, to purchase
approximately the same percentage of such additional Ordinary Shares as the
number set forth next to such Underwriter's name in the preceding table bears
to 16,750,000.
The Company, its directors and officers, SHL, the shareholders of SHL to
receive Ordinary Shares as a result of the SHL Distribution, and the holders
of Class A and Class B Warrants have executed lock-up agreements pursuant to
which each has agreed that they will not, for a period of one year after the
date of this Prospectus, directly or indirectly, offer, sell, offer to sell,
contract to sell, pledge, transfer, assign, hypothecate, grant any option to
purchase, or otherwise sell or dispose (or announce any offer, sale, offer of
sale, contract of sale, pledge, transfer, assignment, hypothecation, grant of
any option to purchase or other sale or disposition) of any Ordinary Shares or
other shares of the Company or any other securities convertible into, or
exercisable or exchangeable for, any Ordinary Shares or other shares of the
Company, without the prior written consent of Prudential Securities
Incorporated, on behalf of the Underwriters, provided that in the case of
holders of the Class B Warrants, consent to waiver of such restrictions may be
granted during such period only with respect to transactions with certain
holders of interests in the limited partnerships holding such warrants. Such
agreements do not prevent the Company from granting options under the Stock
Option Plan so long as such options do not become exercisable for one year
from the date of the Prospectus. The Company also has agreed not to file any
registration statement on Form S-8 with respect to, or otherwise register for
resale with the Commission,
73
<PAGE>
Ordinary Shares underlying stock options for a period of one year from the
date of this Prospectus. Prudential Securities Incorporated may, in its sole
discretion, at any time and without notice, release all or any portion of the
securities subject to such lock-up agreements, except that in the case of
holders of the Class B Warrants, such release may be granted only with respect
to transactions with certain holders of interests in the limited partnerships
holding such warrants.
The Company has agreed to indemnify the several Underwriters and contribute
to any losses arising out of certain liabilities, including liabilities under
the Securities Act.
The Representatives have informed the Company that the Underwriters do not
intend to confirm sales to any accounts over which they exercise discretionary
authority.
Prior to the Offering, there has been no public market for the Ordinary
Shares. The initial public offering price was determined by the Company and
the Representatives as an appropriate per share price in light of the
Company's desired capitalization.
Upon consummation of the Offering and out of the net proceeds received
thereby, the Company will pay Prudential Securities Incorporated an advisory
fee equal to $1.0 million (plus reimbursement of related out-of-pocket
expenses) for investment banking and financial advisory services in connection
with the Offering. The Roman Arch Fund L.P. and The Roman Arch Fund II L.P.,
each of which is a limited partnership and an affiliate of Prudential
Securities Incorporated and makes investments for the benefit of limited
partners who are employees of Prudential Securities Incorporated, purchased
respectively, 120,000 and 80,000 Class B Warrants for respective aggregate
purchase prices of $181,200 and $120,800. The exercise price of the Class B
Warrants is equal to the initial public offering price, subject to adjustment
as provided in the Class B Warrants. The Class B Warrants become exercisable
in three equal annual installments commencing on the first anniversary of the
consummation of the Offering. Each of The Roman Arch Fund L.P. and The Roman
Arch Fund II L.P., as a holder of the Class B Warrants, has executed a lock-up
agreement for a period of one year after the date of this Prospectus as
described above.
In connection with the Offering, certain Underwriters (and selling group
members, if any) and their respective affiliates may engage in transactions
that stabilize, maintain or otherwise affect the market price of the Ordinary
Shares. Such transactions may include stabilization transactions effected in
accordance with Rule 104 of Regulation M, pursuant to which such persons may
bid for or purchase Ordinary Shares for the purpose of stabilizing its market
price. The Underwriters also may create a short position for the account of
the Underwriters by selling more Ordinary Shares in connection with the
Offering than they are committed to purchase from the Company, and in such
case may purchase Ordinary Shares in the open market following completion of
the Offering to cover all or a portion of such short position. The
Underwriters may also cover all or a portion of such short position, up to
2,512,500 Ordinary Shares, by exercising the Underwriters' over-allotment
option referred to previously. In addition, the Representatives, on behalf of
the Underwriters, may impose "penalty bids" under contractual arrangements
with the Underwriters whereby they may reclaim from an Underwriter (or any
dealer participating in the Offering) for the account of the other
Underwriters, the selling concession with respect to Ordinary Shares that are
distributed in the Offering but subsequently purchased by the Representatives
for the account of the Underwriters in the open market. Any of the
transactions described in this paragraph may result in the maintenance of the
price of the Ordinary Shares at a level above that which might otherwise
prevail in the open market. None of the transactions described in this
paragraph is required and, if they are undertaken, they may be discontinued at
any time.
74
<PAGE>
LEGAL MATTERS
The validity of the Ordinary Shares under Cayman Islands law will be passed
upon for the Company by Maples and Calder, Cayman Islands. Certain matters as
to United States law in connection with the Offering will be passed upon for
the Company by Jones, Day, Reavis & Pogue, Dallas, Texas. Michael C. French,
Chairman of the Board, Chief Executive Officer and a Director of the Company,
serves as a consultant to Jones, Day, Reavis & Pogue. Certain matters as to
state insurance laws will be passed upon for the Company by The Bernstein Law
Firm, Washington, D.C. Certain matters as to United States law in connection
with the Offering will be passed upon for the Underwriters by Cleary,
Gottlieb, Steen & Hamilton, New York, New York.
EXPERTS
The consolidated balance sheet of the Company as of June 9, 1998, included
in this Prospectus and in the Registration Statement has been audited by Ernst
& Young, independent auditors, as set forth in their report thereon appearing
elsewhere herein, and is included herein in reliance upon such report given
upon the authority of such firm as experts in accounting and auditing.
75
<PAGE>
GLOSSARY OF SELECTED LIFE INSURANCE AND ANNUITY TERMS
Account value........................ The amount held in either the general
account or a separate account of an
insurance company to maintain
policyholder assets and support
liabilities.
Acquisition costs.................... Commission and brokerage fees paid for
the production of premiums written
and certain other acquisition and
underwriting expenses.
The person on whose life or life
Annuitant............................ expectancy the annuity payouts are
based.
Annuity.............................. A periodic payment contract purchased
from an insurance company that
typically offers tax-deferred growth
of the investment until earnings are
withdrawn.
Annuity payouts...................... An amount paid at regular intervals
under one of several plans available
to the annuity owner and/or any other
payee. This amount may be paid on a
variable or fixed basis or a
combination of both.
Automatic reinsurance treaty......... Reinsurance of a specified type or
category of risk defined in a
reinsurance agreement (a "treaty")
between a ceding company and a
reinsurer. Typically, in automatic
reinsurance the ceding company is
obligated to offer and the reinsurer
is obligated to accept a specified
portion of all such type or category
of risks originally insured or
reinsured by the ceding company. Also
known as treaty reinsurance.
Beneficiary.......................... The person designated to receive
variable life death benefits or
annuity benefits in case of the
policyholder's or annuitant's death.
Broker............................... One who negotiates contracts of
insurance or reinsurance, receiving a
commission for placement and other
services rendered, between (1) a
policy-holder and a primary insurer,
on behalf of the insured party, (2) a
primary insurer and reinsurer, on
behalf of the primary insurer, or (3)
a reinsurer and a retrocessionaire,
on behalf of the reinsurer.
Ceding............................... The reinsurance by a primary insurer
or reinsurer of all or a portion of
its risk with a reinsurer or
retrocessionaire. In doing so, the
party "cedes" business and is
referred to as the "cedent" or
"ceding" company.
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<PAGE>
A form of reinsurance with respect to
Coinsurance..................... which the risk generally is reinsured
on the same plan as that of the
original policy. The reinsurer
receives the gross premium charged to
the policyholder on the reinsured
part of the policy less expense
allowances granted the ceding company
by the reinsurer. The reinsurer
maintains policy reserves and is
liable for its share of policy
benefits.
Corporate owned life insurance An individual or group life insurance
("COLI")........................ policy owned by a company or a trust
sponsored by a company. The proceeds
from such a policy may be used to
help fund general corporate
liabilities, such as the cost of
employee benefit programs.
Credited rates.................. Interest rates applied to annuity and
life insurance policies, whether
contractually guaranteed or currently
declared for a specified period, as
outlined in the policy or contract.
Duff & Phelps rating.................
Duff & Phelps Credit Rating Co.'s
claims paying ability ratings provide
an overall opinion of an insurance
company's ability to meet its
obligations to policyholders. Duff &
Phelps maintains a letter scale
rating system consisting of 18
different ratings ranging from "AAA"
to "DD." An "A" rating is assigned by
Duff & Phelps to companies that have,
in Duff & Phelps' opinion, high
claims paying ability, average
protection factors and an expectation
of variability in risk over time due
to economic and/or underwriting
conditions.
Duration............................. A measure, expressed in years, of the
price sensitivity of a financial
instrument to changes in interest
rates.
Facultative reinsurance.............. A type of reinsurance whereby the
ceding company is not obligated to
offer, and the reinsurer is not
obligated to accept, all or a portion
of each risk originally insured by
the ceding company. Facultative risks
are typically underwritten on a case-
by-case basis.
Fixed annuities...................... General account annuities which
guarantee a contract holder that a
specific sum of money will be paid in
the future, either as a lump sum or
as periodic income.
General account...................... The main account of an insurer through
which premiums are collected and the
insurer's liabilities are incurred
where the insurer bears the relevant
risks.
Indemnity reinsurance................
An arrangement in which an insurance
company, the reinsurer, in
consideration of a premium, agrees to
77
<PAGE>
indemnify another insurance or
reinsurance company, known as the
ceding company, against all or a
portion of the insurance or
reinsurance risks underwritten by the
ceding company under one or more
policies. Indemnity reinsurance does
not legally discharge the primary
insurer from its liability with
respect to its obligations to the
insured.
Modified coinsurance............ A form of reinsurance that differs from
coinsurance only in that reserves are
retained by the ceding company while
all risks remain with the reinsurer.
The ceding company normally pays
interest to replace the interest the
reinsurer would have earned if it had
held the assets corresponding to the
reserves in its own investment
portfolio.
Mortality............................ The relative incidence of death.
Net amount at risk.............. The difference between the cash value
of a variable life insurance policy
and the death benefit provided by such
policy.
Persistency.......................... The rate which insurance policies or
annuity contracts remain in force,
expressed as a percentage of the
number of policies remaining in force
over the previous year.
Policy............................... The printed document issued by an
insurance or reinsurance company that
states the terms of the insurance or
reinsurance contract.
Policy reserves................. Liabilities established by insurers
that generally represent the estimated
discounted present value of the net
cost of claims, repayments or contract
liabilities and the related expenses
that the insurer will ultimately be
required to pay in respect of
reinsurance or insurance it has
written or reinsured.
Premiums written..................... Premiums written for a given period.
Primary insurer...................... An insurance company that contracts
with the consumer to provide insurance
coverage. Such primary insurer may
then cede a portion of its business to
reinsurers.
Qualified purchaser..................
As defined in Section 2(a)(51) of the
1940 Act and related rules and
regulations.
Quota share reinsurance..............
A term describing all forms of
reinsurance in which the reinsurer
shares a pro-rata part of the original
premiums and losses of the ceding
company under a quota share. (Also
known as proportional reinsurance,
"pro-rata contract" reinsurance or
participating reinsurance.)
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<PAGE>
Recapture right.................
The ceding company's right to cancel
reinsurance under certain conditions.
A recapture occurs when a ceding
company cancels an in force
reinsurance cession to increase the
risk it retains.
Reinsurance; Reinsurer.......... An arrangement under which an
insurance company (the "reinsurer")
agrees to indemnify or assume the
obligations of another insurance
company (the "ceding company" or
"cedent") for all or a portion of the
insurance risks underwritten by the
ceding company.
The amount or portion of insurance
Retention....................... risk that a ceding insurer retains
for its own account. Any insurance
issued in excess of the retention is
reinsured. In proportional treaties,
the retention may be a percentage of
the original policy's limit.
Retrocessional reinsurance;
Retrocessionaire..................... A transaction whereby a reinsurer
cedes to another reinsurer, the
retrocessionaire, all or part of the
reinsurance that the first reinsurer
has assumed. Retrocessional
reinsurance does not legally
discharge the ceding reinsurer from
its liability with respect to its
obligations to the reinsured.
A segregated account established by an
Separate account..................... insurance company to hold
policyholder or contract holder
assets and liabilities on behalf of
such policyholder or contract holder.
The funds in a separate account are
maintained separately from those in
other separate accounts and the
general account and are not subject
to the claims of the insurer's
general creditors.
Structured settlement contracts...... Contracts providing for periodic
payments for a determinable number of
years or for life, typically in
settlement of an injury claim or a
lottery award.
Surplus relief reinsurance........... A type of reinsurance which is
primarily designed to increase
temporarily a ceding company's
statutory capital.
Surrender charge..................... A deferred sales charge to be applied
if an annuity or life insurance
policy is surrendered for its cash
value prior to a specified date. Such
a charge is intended to recover all
or a portion of the policy
acquisition costs and act as a
deterrent to early surrender.
The insurer's or reinsurer's process
Underwriting......................... of reviewing contracts submitted for
insurance or reinsurance coverage,
deciding whether to accept all or
part of the coverage requested and
determining the applicable premiums.
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<PAGE>
Underwriting capacity................
The maximum amount that an insurance or
reinsurance company can underwrite.
Reinsurance serves to increase an
insurer's underwriting capacity by
reducing its exposure from particular
risks.
Underwriting expenses................ The aggregate of policy acquisition
costs, including commissions, and the
portion of administrative, general and
other expenses attributable to
underwriting operations.
Unearned premiums.................... Premiums written but not yet earned, as
they are attributable to the unexpired
portion of the related contract or
policy term.
Universal life insurance........ A form of life insurance that combines
term insurance and a cash value
savings component. Premium payments
and coverage usually can vary.
An annuity which includes a provision
Variable annuity..................... for benefit payments to vary according
to the investment experience of the
separate account in which the amounts
paid to provide for this annuity are
allocated.
Variable life insurance.............. A form of life insurance that offers
fixed or flexible premiums and a
minimum death benefit as well as
providing a return linked to an
underlying portfolio of securities
that are held in a separate account of
the insurer.
Whole life insurance............ A form of life insurance which
provides guaranteed death benefits and
a guaranteed cash value to policy
holders.
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<PAGE>
SCOTTISH ANNUITY & LIFE HOLDINGS, LTD.
INDEX TO CONSOLIDATED BALANCE SHEET
<TABLE>
<S> <C>
Report of Independent Auditors.............................................. F-2
Consolidated Balance Sheet as of June 9, 1998............................... F-3
Notes to Consolidated Balance Sheet......................................... F-4
</TABLE>
F-1
<PAGE>
REPORT OF INDEPENDENT AUDITORS
To the Shareholder and Board of Directors
Scottish Annuity & Life Holdings, Ltd.
We have audited the accompanying consolidated balance sheet of Scottish
Annuity & Life Holdings, Ltd. (the "Company") as of June 9, 1998. This balance
sheet is the responsibility of the Company's management. Our responsibility is
to express an opinion on this balance sheet based on our audit.
We conducted our audit in accordance with auditing standards generally
accepted in the United States of America. Those standards require that we plan
and perform the audit to obtain reasonable assurance about whether the balance
sheet is free of material misstatement. An audit includes examining, on a test
basis, evidence supporting the amounts and disclosures in the balance sheet.
An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
balance sheet presentation. We believe that our audit provides a reasonable
basis for our opinion.
In our opinion, the consolidated balance sheet referred to above presents
fairly, in all material respects, the consolidated financial position of
Scottish Annuity & Life Holdings, Ltd. at June 9, 1998 in conformity with
accounting principles generally accepted in the United States of America.
Ernst & Young
George Town, Grand Cayman
British West Indies
October 7, 1998
F-2
<PAGE>
SCOTTISH ANNUITY & LIFE HOLDINGS, LTD.
CONSOLIDATED BALANCE SHEET
(STATED IN UNITED STATES DOLLARS)
JUNE 9, 1998
<TABLE>
<S> <C>
ASSETS
Cash and cash equivalents....................................... $600,000
--------
Total assets.................................................... $600,000
========
SHAREHOLDER'S EQUITY
Share capital, par value $0.01 per share:
Issued and fully paid: 1,500,000 Ordinary Shares.............. $ 15,000
Additional paid in capital.................................... 585,000
--------
Total shareholder's equity...................................... $600,000
========
</TABLE>
See accompanying notes.
F-3
<PAGE>
SCOTTISH ANNUITY & LIFE HOLDINGS, LTD.
NOTES TO CONSOLIDATED BALANCE SHEET
JUNE 9, 1998
1. ORGANIZATION
Scottish Annuity & Life Holdings, Ltd. (formerly, Scottish Life Holdings,
Ltd.) ("Holdings") was incorporated as an exempted company with limited
liability on May 12, 1998 under the laws of the Cayman Islands. Holdings has
been organized to provide customized variable life insurance policies and
reinsurance of in-force blocks of fixed annuities and similar contracts
through its wholly-owned subsidiary, Scottish Annuity & Life Insurance Company
(Cayman) Ltd. (formerly, Scottish Life Assurance (Cayman) Ltd.) ("Scottish
Insurance", and together with Holdings, the "Company"). In addition, Holdings
may reinsure in-force blocks of other types of annuity contracts and life
insurance policies through Scottish Insurance. On July 8, 1998, Scottish
Insurance received an unrestricted Class "B' insurer's license under the
insurance laws of the Cayman Islands. The Company's fiscal year end is
December 31. Holdings is planning an initial public offering of its Ordinary
Shares (the "Offering"). All Ordinary Shares of Holdings are owned by Scottish
Holdings, Ltd., a Cayman Islands company (the "Parent").
The Company executed a binder with a United States reinsurer on September
18, 1998 to assume reinsurance, on a retrocession basis, for approximately
35,000 in-force universal life insurance policies with an aggregate face value
of approximately $5.0 billion. The reinsurance will be structured on a monthly
renewable term basis with the Company reinsuring only the mortality risk under
such policies, up to $1.5 million per life. The Company intends to retrocede
risks in excess of $500,000 per life. The Company's binder is conditioned on
the consummation of the Offering.
During the period from its inception to the date of the balance sheet, the
Company did not incur any income or expenses that are required to be reported
in a statement of income or a statement of cash flows under United States
generally accepted accounting principles. Therefore, the consolidated
statements of income and cash flows have not been presented.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The accompanying balance sheet is prepared in accordance with accounting
principles generally accepted in the United States of America which require
management to make estimates and assumptions that affect the reported amounts
of assets and liabilities and disclosure of contingent assets and liabilities
at the date of the financial statement. Actual results could differ from those
estimates. The following are the significant accounting and reporting policies
adopted by the Company.
PREMIUM INCOME AND RELATED EXPENSES
The variable life insurance policies are considered universal life-type
contracts and, along with reinsured variable annuity contracts, will be
accounted for under Financial Accounting Standards Board's ("FASB") Statement
No. 97, "Accounting and Reporting by Insurance Enterprises for Certain Long-
Duration Contracts and for Realized Gains and Losses from the Sale of
Investments." Premiums from variable life insurance policies and reinsured
variable annuity contracts will be reported as deposits to policyholders'
account balances which will be maintained in separate accounts. Revenues from
these policies will consist of amounts assessed and recognized in income on a
quarterly basis during the period against policyholders' account balances for
mortality charges, policy administration charges and surrender charges. Policy
benefits and claims that are charged to expense will include benefit claims
incurred in the period in excess of related policyholders' account balances
and interest credited to policyholders' account balances.
F-4
<PAGE>
SCOTTISH ANNUITY & LIFE HOLDINGS, LTD.
NOTES TO CONSOLIDATED BALANCE SHEET--CONTINUED
JUNE 9, 1998
Premiums from reinsured fixed annuity policies and reinsured traditional
life insurance contracts will be recognized generally as revenue when due from
policyholders. Benefits and expenses are matched with such income so as to
result in the recognition of profits over the life of the contracts. This is
achieved by means of the provision for liabilities for future policy benefits
and deferral and subsequent amortization of policy acquisition costs. Premiums
from reinsurance of investment type fixed annuity contracts will be reported
as deposits. Revenues from these contracts will consist of amounts assessed
quarterly during the period against policyholders' account balances for
mortality charges, policy administration charges and surrender charges. Policy
benefits and claims that are charged to expense will include benefit claims
incurred in the period in excess of related policyholders' account balances.
ADMINISTRATIVE SERVICES FEES
The Company charges administrative services fees to The Scottish Annuity
Company (Cayman) Ltd. ("Scottish Annuity") quarterly in advance (see Note 7).
Such fees are recognized into income ratably.
DEFERRED POLICY ACQUISITION COSTS
For variable life insurance and reinsurance of investment type fixed annuity
contracts and reinsured variable annuity contracts, deferred policy
acquisition costs, consisting of commissions, underwriting and policy issue
expenses, will be amortized over the expected average life of the contracts as
a constant percentage of the present value of estimated gross profits arising
principally from investment results, mortality and expense margins, and
surrender charges based on historical and anticipated future experience, which
will be updated at the end of each accounting period. In computing
amortization, interest shall accrue to the unamortized balance of capitalized
acquisition costs at the rate used to discount expected gross profit. The
effect on the amortization of deferred policy acquisition costs of revisions
to estimated gross profits will be reflected in earnings in the period such
estimated gross profits are revised.
For fixed annuity reinsurance policies and reinsured traditional life
insurance contracts, deferred policy acquisition costs, consisting of ceding
commissions, will be charged to expense using assumptions consistent with
those used in computing policy reserves. Assumptions as to anticipated
premiums will be estimated at the date of the policy issuance and will be
consistently applied during the life of the policies. Deviations from
estimated experience will be reflected in earnings in the period such
deviations occur. For these policies, the amortization periods generally will
be for the estimated life of the policy.
POLICYHOLDERS' ACCOUNT BALANCES AND FUTURE POLICY BENEFITS
The development of policy reserves for the Company's policies will require
management to make estimates and assumptions regarding mortality, lapse,
expense and investment experience. Actual results could differ materially from
those estimates. Management will monitor actual experience and where
circumstances warrant, will revise its assumptions and the related reserve
estimates.
Future benefit liabilities of variable life insurance policies will be
estimated using actuarial assumptions as to mortality, persistency and
interest established at policy issue. Assumptions established at policy issue
as to mortality and persistency are based on anticipated experience. Policy
reserves will be established to meet the Company's estimated future benefit
liabilities. Future benefit liabilities of reinsured traditional life
insurance contracts will be estimated using actuarial assumptions as to
mortality, morbidity, terminations, investment yields and expenses applicable
at the time the insurance contracts are made. As variable life insurance
policies are issued, the Company's associated mortality risk may tend to
fluctuate more than would be expected than if the
F-5
<PAGE>
SCOTTISH ANNUITY & LIFE HOLDINGS, LTD.
NOTES TO CONSOLIDATED BALANCE SHEET--CONTINUED
JUNE 9, 1998
Company had a larger pool of insureds. The Company will allocate a portion of
its capital to further provide for potential fluctuations in volatility of
mortality experience. For the Company's reinsured fixed annuity business, such
estimates will be primarily based on historical experience and information
provided by ceding companies.
When the liabilities for future policy benefits plus the present value of
expected future gross premiums for a policy are insufficient to provide for
expected future benefits and expenses for that policy, a premium deficiency
reserve will be established by a charge to income. Benefit liabilities for
fixed annuities during the accumulation period are equal to the accumulated
present value of expected future payments.
Premiums for variable life insurance policies and reinsured variable annuity
contracts will be reported as deposits to policyholders' account balances
which will be maintained in separate accounts. The funds in these separate
accounts will be managed by private independent money managers for the benefit
of such policyholders. The Company will not provide any investment management
or advisory services to any policyholder. Revenues from these contracts will
consist of amounts assessed during the period against policyholders' separate
account balances for mortality charges, policy administration and surrender
charges. Policy benefits and claims that are charged to expense will include
benefit claims incurred in the period in excess of related policyholders'
separate account balances and interest credited to policyholders' separate
account balances.
INVESTMENTS
The Company intends to categorize all investments in marketable securities
as available-for-sale and, accordingly, such securities will be carried at
fair value. Realized gains and losses are determined on a specific
identification method. The cost of fixed income securities will be adjusted
for amortization of premiums and discounts. Realized gains and losses will be
recorded in the statement of operations and included in investment income.
Unrealized gains and losses will be reported as a separate component of
shareholder's equity. Other than temporary declines in value will be charged
to income and a new cost basis will be established for the securities.
SEPARATE ACCOUNT ASSETS AND LIABILITIES
Separate accounts will be recorded at the fair value of the underlying
investments less mortality charges, policy administration charges and
surrender charges. The funds in the separate accounts will not be part of the
Company's general funds and will not be available to meet the general
obligations of the Company.
Separate account liabilities will represent the policyholders' separate
account values. They will consist of the initial premiums paid after
consideration of net investment gains/losses attributable to each separate
account, less fees and withdrawals.
TRANSLATION OF FOREIGN CURRENCIES
The Company's functional currency is the United States dollar. Premiums
written and receivable in foreign currencies, if any, will be recorded at
exchange rates prevailing on the effective date of the contract and
liabilities for future benefits payable in foreign currencies at the time such
liabilities are first recorded. Exchange gains or losses resulting from the
periodic revaluation and settlement of such assets and liabilities will be
recorded in the Company's statement of operations.
F-6
<PAGE>
SCOTTISH ANNUITY & LIFE HOLDINGS, LTD.
NOTES TO CONSOLIDATED BALANCE SHEET--CONTINUED
JUNE 9, 1998
OFFERING COSTS
Offering costs incurred in connection with the Offering, including certain
amounts payable for investment banking and financial advisory services, will
be deducted from the gross proceeds of the Offering. Offering costs incurred
through October 7, 1998, amount to approximately US$1.9 million.
EARNINGS PER ORDINARY SHARE
The Company will calculate earnings per Ordinary Share based upon the
guidance provided in FASB Statement No. 128 "Earnings per Share". This
statement requires the presentation of two amounts of earnings per share when
the company has a complex capital structure. These amounts are earnings per
Ordinary Share and earnings per Ordinary Share assuming dilution.
Basic earnings per Ordinary Share will be calculated by dividing net income
attributable to holders of Ordinary Shares by the weighted average number of
Ordinary Shares outstanding during the period.
Diluted earnings per Ordinary Share will be calculated by dividing the net
income attributable to holders of Ordinary Shares by the weighted average
number of Ordinary Shares outstanding during the period, plus dilutive
potential Ordinary Shares. Options and warrants issued by the Company will be
considered dilutive potential Ordinary Shares and will be included in the
calculation using the treasury stock method.
CONSOLIDATION
The Company's balance sheet includes the accounts of Holdings and Scottish
Insurance after the elimination of intercompany balances.
CASH AND CASH EQUIVALENTS
Cash and cash equivalents include fixed deposits with an original maturity,
when purchased, of three months or less. Cash and cash equivalents are
recorded at face value, which approximates fair value. All cash and cash
equivalents are held with a single financial institution in the Cayman
Islands. Management does not anticipate any material losses as a result of
this credit concentration.
ACCOUNTING STANDARDS
The Financial Accounting Standards Board has issued the following accounting
standard that will affect the Company.
FASB Statement No. 133, "Accounting for Derivative Instruments and Hedging
Activities," was issued in June 1998 and requires adoption no later than
fiscal quarters or fiscal years beginning after June 15, 1999. The new
standard establishes accounting and reporting standards for derivative
instruments. It requires that an entity recognize all derivatives as either
assets or liabilities in the statement of financial position and measure those
instruments at fair value. If certain conditions are met, a derivative may be
specifically designated as (a) a hedge of the exposure to changes in the fair
value of a recognized asset or liability or an unrecognized firm commitment,
(b) a hedge of the exposure to variable cash flows of a forecasted
transaction, or (c) a hedge of the foreign currency exposure of a net
investment in a foreign operation, an unrecognized firm commitment, an
available-for-sale security, or a foreign-currency-denominated forecasted
transaction.
The Company has not yet completed its evaluation of the effect this standard
will have on the Company.
F-7
<PAGE>
SCOTTISH ANNUITY & LIFE HOLDINGS, LTD.
NOTES TO CONSOLIDATED BALANCE SHEET--CONTINUED
JUNE 9, 1998
3. SHAREHOLDER'S EQUITY
PREFERRED SHARES
The Company is authorized to issue 50,000,000 Preferred Shares of par value
$0.01 each. At the balance sheet date there were no Preferred Shares issued or
outstanding.
ORDINARY SHARES
The Company is authorized to issue 100,000,000 Ordinary Shares of par value
$0.01 each. At the balance sheet date 1,500,000 Ordinary Shares were
outstanding.
WARRANTS
In connection with its initial capitalization, the Company issued Class A
Warrants to purchase an aggregate of 1,550,000 Ordinary Shares to Michael C.
French, Michelle L. Boucher and certain companies wholly owned by certain
shareholders of the Parent. The aggregate consideration paid for these
warrants of $100,000 is reflected as additional paid-in-capital. The Class A
Warrants were issued on June 9, 1998 at the initial stage of the development
of the Company's business plan when the feasibility of proceeding with the
offering was uncertain. Effective September 3, 1998, the Class A Warrant
agreements were superseded by Amended and Restated Class A Warrant agreements
with no material impact on the operation of the agreements. The consideration
paid for the Class A Warrants was determined to be fair value in the judgment
of the Company in light of such uncertainty. The exercise price of the Class A
Warrants will be equal to the initial public offering price per share of the
Company's Ordinary Shares. The Class A Warrants become exercisable in equal
amounts over a three year period commencing on the first anniversary of the
consummation of the Offering. The Class A Warrants will expire on the tenth
anniversary of the consummation of the Offering.
The Company has elected to follow Accounting Principles Board Opinion No.
25, "Accounting for Stock Issued to Employees" ("APB 25") and related
Interpretations in accounting for warrants issued to employees because the
alternative fair value accounting provided for under FASB Statement No. 123,
"Accounting for Stock-Based Compensation," requires use of option valuation
models that were not developed for use in valuing warrants issued to
employees. Under APB 25, because the exercise price of the Class A Warrants
issued to employees equals the initial public offering price of the underlying
stock on the date of issuance, no compensation expense is recognized.
The Class B Warrants, discussed in Note 8 below, were issued on June 18,
1998 after the Company's business plan had undergone further development and
the Company was in a position to proceed with the Offering. As a result, the
Class B Warrants were issued for greater consideration. Effective September 3,
1998, the Class B Warrant agreements were superseded by Amended and Restated
Class B Warrant agreements with no material impact on the operation of the
agreements.
The Class C Warrants, discussed in Note 7 below, are issuable to Westport
Worldwide Bermuda, Ltd. ("Westport") annually over the four year term of the
agreement with Westport based on the achievement of certain revenues
attributable to business identified or referred by Westport.
4. STOCK OPTION PLAN
On June 18, 1998, the Board of Directors adopted a Stock Option Plan (the
"Plan") under which it may grant, subject to certain restrictions,
nonstatutory stock options ("Options"). The aggregate number of Ordinary
Shares for which Options may be granted under the Plan is limited to 1,500,000
shares and no individual shall
F-8
<PAGE>
SCOTTISH ANNUITY & LIFE HOLDINGS, LTD.
NOTES TO CONSOLIDATED BALANCE SHEET--CONTINUED
JUNE 9, 1998
be granted Options for more than 1,000,000 shares under the Plan. Effective
September 2, 1998, the Amended and Restated 1998 Stock Option Plan increased
the aggregate number of Ordinary Shares for which options may be granted from
1,500,000 to 2,000,000 shares. Options may be granted to eligible employees,
non-employee Directors, advisors and consultants. Each grant will specify the
required time of continuing service by the Participant (as defined in the
Plan) with the Company or any other conditions to be satisfied before the
Option, or installments thereof will become exercisable.
The Plan will be administered by the Board of Directors. The Board of
Directors has the authority to select the parties to be granted Options and to
set the date of grant and other terms of the Options granted under the Plan.
The minimum exercise price of the Options will be equal to the fair market
value, as defined in the Plan, of the Company's Ordinary Shares at the date of
grant. The term of the Options shall not be more than ten years from the date
of grant. Unless otherwise provided in the option agreement, the Options shall
become exercisable in three equal annual installments, commencing on the first
anniversary of the grant date.
The Company has elected to follow Accounting Principles Board Opinion No.
25, "Accounting for Stock Issued to Employees" ("APB 25") and related
Interpretations in accounting for its employee stock options because the
alternative fair value accounting provided for under FASB Statement No. 123,
"Accounting for Stock-Based Compensation," requires use of option valuation
models that were not developed for use in valuing employee stock options.
Under APB 25, because the exercise price of the Company's employee stock
options equals the market price of the underlying stock on the date of grant,
no compensation expense is recognized.
5. TAXATION
There is presently no taxation imposed on income or capital gains by the
Government of the Cayman Islands. If any taxation were to be enacted, Holdings
and Scottish Insurance have applied for and expect to receive an exemption
from the Governor-in-Council of the Cayman Islands until 2018. The Company
intends to operate in a manner such that it will owe no United States tax
other than premium excise taxes and withholding taxes on certain investments.
6. STATUTORY REQUIREMENTS AND DIVIDEND RESTRICTIONS
Under the Insurance Law of the Cayman Islands (1998 Revision), Scottish
Insurance must maintain a net capital worth of US$240,000.
Holdings' ability to pay dividends depends on the ability of Scottish
Insurance to pay dividends to Holdings. While Holdings itself is not subject
to any significant legal prohibitions on the payment of the dividends,
Scottish Insurance will be subject to Cayman Islands regulatory constraints
which affect its ability to pay dividends to Holdings. Scottish Insurance is
prohibited from declaring or paying a dividend if such payment would reduce
its net capital worth below US$240,000.
7. MATERIAL AGREEMENTS
SCOTTISH ANNUITY AGREEMENT
Scottish Insurance has entered into an Insurance Administration, Services
and Referral Agreement (the "Scottish Annuity Agreement") with Scottish
Annuity dated as of July 1, 1998, and effective October 1, 1998, pursuant to
which Scottish Insurance will provide Scottish Annuity with a variety of
insurance administration,
F-9
<PAGE>
accounting and other services, including (i) investment fund accounting
reporting for variable annuity products, (ii) monitoring compliance with the
diversification, investor control and certain other requirements of the
Internal Revenue Code of 1986, as amended (the "Code"), (iii) administrative
services in the issuance by Scottish Annuity of variable annuity products and
documents related thereto, (iv) servicing of variable annuity products after
issuance by Scottish Annuity, (v) accounting for investment, capital and
income and expense activities and maintenance of individual ledgers for
investment funds in which each annuity product is invested, (vi) preparing
financial statements of Scottish Annuity and (vii) controlling all
disbursements from Scottish Annuity and authorizing such disbursements upon
instructions from Scottish Annuity. These services will be provided by
Scottish Insurance personnel. Scottish Annuity personnel will conduct all
other administrative and accounting services related to its variable annuity
products.
As compensation for the services rendered by Scottish Insurance during the
term of the Scottish Annuity Agreement, Scottish Annuity will pay to Scottish
Insurance an amount equal to 0.50% of the quarterly separate account value of
each annuity contract issued by Scottish Annuity subject to a minimum of
U.S.$25,000 per year. In addition, Scottish Annuity will reimburse Scottish
Insurance for all out-of-pocket fees, costs and expenses incurred or advanced
by Scottish Insurance on behalf of Scottish Annuity in connection with the
Scottish Annuity Agreement.
In addition, pursuant to the Scottish Annuity Agreement (i) Scottish Annuity
will refrain from the direct or indirect offer or sale of any life insurance
products and will refer only to Scottish Insurance any opportunity or inquiry
that it may receive to issue and sell any life insurance products, and (ii)
Scottish Insurance will refrain from the direct or indirect offer or sale of
any variable annuity products and will refer only to Scottish Annuity any
opportunity or inquiry that it may receive to issue and sell any variable
annuity products.
The Scottish Annuity Agreement will continue in effect until December 31,
1999 and will thereafter be automatically renewed for successive one-year
periods, unless canceled by either party prior to the commencement of a
renewed term. In addition, the Scottish Annuity Agreement will terminate
earlier under specified circumstances (e.g. bankruptcy or uncured defaults
under the agreement). Scottish Annuity and Scottish Insurance have agreed to
indemnify each other and their respective employees for certain liabilities.
In addition, pursuant to separate agreements and as partial consideration
for entering into the Scottish Annuity Agreement, Scottish Insurance will
sublease to Scottish Annuity a portion of its leased space at its executive
offices in the Cayman Islands and Scottish Annuity has sold certain of its
computer hardware and software to Scottish Insurance.
AGREEMENT WITH IRM CAYMAN
Scottish Insurance retained IRM Cayman, a member company of International
Risk Management Group, Inc. ("IRMG"), an affiliate of Swiss Reinsurance, as of
June 30, 1998, to act as the Company's licensed insurance manager in the
Cayman Islands and to supplement from time to time the Company's
administrative staff in the Cayman Islands. As the Company's licensed
insurance manager in the Cayman Islands, IRM Cayman will prepare the Company's
annual report required to be filed with the Cayman Islands Monetary Authority,
submit any changes or amendments to the Company's business plan required to be
filed with the Cayman Islands Monetary Authority and annually certify as to
the Company's compliance with all applicable requirements of the Cayman
Islands Monetary Authority. The Company's agreement with IRM Cayman may be
terminated by either party upon 90 days advance written notice. The Company
pays IRM Cayman an annual retainer of $25,000, and IRM Cayman bills for its
actual services on an hourly basis.
WESTPORT AGREEMENT
In an effort to facilitate its marketing efforts, the Company is involved in
negotiations to enter into an agreement with Westport, a developer and
administrator of insurance products for international insurance brokers,
insurance companies and corporations and an affiliate of Westport Worldwide,
pursuant to which
F-10
<PAGE>
SCOTTISH ANNUITY & LIFE HOLDINGS, LTD.
NOTES TO CONSOLIDATED BALANCE SHEET--CONTINUED
JUNE 9, 1998
Westport will provide non-exclusive distribution services with respect to the
Company's variable life insurance products. In addition, Westport may be
retained to provide administration services for certain variable life
insurance products that the Company issues.
All of Westport's distribution activities will be undertaken outside the
United States and Westport has agreed to comply with all of the Company's
operating guidelines. For its distribution activities, the Company will issue
to Westport up to 750,000 Class C Warrants to purchase up to 750,000 Ordinary
Shares at an exercise price equal to the initial public offering price per
Ordinary Share. The Class C Warrants are issuable over a four year period on
January 1, 2000 and on each anniversary thereafter (to and including January
1, 2003) in an amount to be determined by a formula based on the revenue for
the preceding calendar year from variable life insurance policies issued by
the Company to customers identified and referred by Westport. The Class C
Warrants, if issued, will be for a term expiring ten years from the date of
the Offering. These warrants will be accounted for under the fair value
method, when issued, in accordance with FASB 123.
MILLIMAN & ROBERTSON AGREEMENT
The Company has entered into an agreement with Milliman & Robertson pursuant
to which Milliman & Robertson will provide certain actuarial services to the
Company, including pricing and reinsurance analysis, from time to time as
requested by the Company. The Company has paid Milliman & Robertson an initial
retainer of $25,000, and Milliman & Robertson bills for its actual services on
an hourly basis and for its reimbursable expenses.
DC PLANNING AGREEMENT
The Company is involved in negotiations to enter into a consulting services
agreement with DC Planning subject to the consummation of the Offering, an
insurance consulting firm that develops life insurance products and acts as a
consultant on insurance matters for high net worth families, trust companies
and other fiduciaries. Under the terms of the agreement, DC Planning will
provide certain consulting services to the Company, including with respect to
the development and implementation of its business plan. DC Planning will be
paid $180,000 a year for a term of three years under the agreement. Howard
Shapiro, who will be a Director of Holdings, is the managing partner of DC
Planning.
PIMCO AGREEMENT
The Company is involved in negotiations to enter into an investment advisory
agreement (the "PIMCO Agreement") with Pacific Investment Management Company
("PIMCO") pursuant to which PIMCO will manage a portion of the Company's
investment portfolio. Under the expected terms of the PIMCO Agreement, the
Company will pay PIMCO an annual fee equal to 0.50% of the market value of the
first $25 million of the Company's assets managed by PIMCO, 0.375% on the next
$25 million of the Company's assets under management and 0.25% thereafter. The
foregoing fees will be payable quarterly in advance based on the market value
of the Company's investment portfolio managed by PIMCO at the beginning of the
billing period. The PIMCO Agreement will continue in effect on a month to
month basis and may be terminated by either party effective at the end of the
month upon 30 days advance notice. The Company may also terminate the PIMCO
Agreement effective upon notice but will be obligated to pay the applicable
fee for 30 days thereafter.
GENERAL RE AGREEMENT
The Company is involved in negotiations to enter into an investment advisory
agreement (the "General Re Agreement") with General Re-New England Asset
Management, Inc. ("General Re") pursuant to which General Re will manage a
portion of the Company's investment portfolio. Under the expected terms of the
F-11
<PAGE>
SCOTTISH ANNUITY & LIFE HOLDINGS, LTD.
NOTES TO CONSOLIDATED BALANCE SHEET--CONTINUED
JUNE 9, 1998
General Re Agreement, the Company will pay General Re an annual fee equal to
0.20% of the market value of the first $50 million of the Company's assets
under management and 0.15% of the next $50 million of assets under management
of General Re. The fee payable with respect to the Company's assets under
management in excess of $100 million is negotiable. The foregoing fees will be
payable at the end of each calendar quarter for services provided during the
prior three months. The General Re Agreement may be terminated by either party
upon thirty days written notice and will remain in effect until terminated.
OTHER AGREEMENTS
The Company had previously entered into a series of other agreements with
respect to its planned operations. As a result of changing market conditions
certain of those agreements have been terminated and replaced with the
agreements described herein.
8. SUBSEQUENT EVENTS
The Company entered into Warrant Purchase Agreements whereby The Roman Arch
Fund L.P. and The Roman Arch Fund II L.P. purchased an aggregate of 200,000
Class B Warrants for an aggregate purchase price of $302,000. The exercise
price of the Class B Warrants will be equal to the initial public offering
price per Ordinary Share, and such Class B Warrants become exercisable in
equal amounts over a three year period commencing one year after the Offering
and expire ten years after the consummation of the Offering. Management is of
the view that the agreed sale price of the Class B Warrants represented fair
value at the time of purchase.
The Roman Arch Fund L.P. and The Roman Arch Fund II L.P. are each limited
partnerships and affiliates of Prudential Securities Incorporated, one of the
underwriters of the Offering, and make investments for the benefit of limited
partners who are employees of Prudential Securities Incorporated. The Company
has agreed to pay a fee of $1 million (plus reimbursement of related out-of-
pocket expenses) to Prudential Securities Incorporated for investment banking
and financial advisory services in connection with the Offering.
Effective September 9, 1998, Holdings changed its name from Scottish Life
Holdings, Ltd. to Scottish Annuity & Life Holdings, Ltd. and Scottish
Insurance changed its name from Scottish Life Assurance (Cayman) Ltd. to
Scottish Annuity & Life Insurance Company (Cayman) Ltd.
F-12
<PAGE>
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NO DEALER, SALESPERSON OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS, AND, IF GIVEN
OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED BY THE COMPANY OR ANY OF THE UNDERWRITERS. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF ANY OFFER TO BUY
ANY SECURITY OTHER THAN THE ORDINARY SHARES OFFERED BY THIS PROSPECTUS, NOR
DOES IT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF ANY OFFER TO BUY THE
ORDINARY SHARES BY ANYONE IN ANY JURISDICTION IN WHICH SUCH AN OFFER OR
SOLICITATION IS NOT AUTHORIZED, OR IN WHICH THE PERSON MAKING SUCH OFFER OR
SOLICITATION IS NOT QUALIFIED TO DO SO, OR TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE
ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY
TIME SUBSEQUENT TO THE DATE HEREOF.
UNTIL , 1998, ALL DEALERS EFFECTING TRANSACTIONS IN THE REGISTERED
SECURITIES, WHETHER OR NOT PARTICIPATING IN THIS DISTRIBUTION, MAY BE REQUIRED
TO DELIVER A PROSPECTUS. THIS IS IN ADDITION TO THE OBLIGATION OF DEALERS TO
DELIVER A PROSPECTUS WHEN ACTING AS UNDERWRITERS AND WITH RESPECT TO THEIR
UNSOLD ALLOTMENTS OR SUBSCRIPTIONS.
----------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
Enforceability of Civil Liabilities under United States Federal Securities
Laws..................................................................... 2
Additional Information.................................................... 3
Prospectus Summary........................................................ 4
Risk Factors.............................................................. 9
Use of Proceeds........................................................... 21
Dividend Policy........................................................... 21
Capitalization............................................................ 22
Dilution.................................................................. 23
Management's Discussion and Analysis of Financial Condition and Plan
of Operations............................................................ 24
Business.................................................................. 29
Management................................................................ 50
Principal Stockholders.................................................... 56
Certain Relationships and Related Party Transactions...................... 56
Description of Shares..................................................... 57
Shares Eligible for Future Sale........................................... 65
Material Tax Consequences................................................. 66
Underwriting.............................................................. 73
Legal Matters............................................................. 75
Experts................................................................... 75
Glossary of Selected Life Insurance and Annuity Terms..................... 76
Index to Consolidated Balance Sheet....................................... F-1
</TABLE>
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16,750,000 Shares
SCOTTISH ANNUITY & LIFE HOLDINGS, LTD.
Ordinary Shares
-------------
PROSPECTUS
-------------
PRUDENTIAL SECURITIES INCORPORATED
, 1998
- -------------------------------------------------------------------------------
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses payable by the Company in
connection with the issuance and distribution of the Ordinary Shares being
registered hereby. All of such expenses are estimates, other than the filing
fees payable to the Securities and Exchange Commission, the National
Association of Securities Dealers, Inc. and the Nasdaq National Market.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee................. $ 85,237
National Association of Securities Dealers, Inc. filing fee......... 29,394
Nasdaq National Market quotation fee................................ 95,000
Advisory fee........................................................ 1,000,000
Printing costs...................................................... 250,000
Accounting fees and expenses........................................ 175,000
Legal fees and expenses (not including Blue Sky).................... 750,000
Blue Sky fees and expenses.......................................... 2,000
Miscellaneous expenses.............................................. 113,369
----------
Total............................................................. $2,500,000
==========
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Cayman Islands law permits a company's articles of association to provide
for the indemnification of officers and directors, except to the extent that
such provision may be held by the Cayman Islands courts to be contrary to
public policy (for instance, for purporting to provide indemnification against
the consequences of committing a crime). In addition, an officer or director
may not be indemnified for his own dishonesty, wilful neglect or default.
The Articles contain provisions providing for the indemnification by the
Company of an officer, director, employee or agent of the Company, or any
person serving at the request of the Company as an officer, director, employee
or agent of any other company, for threatened, pending or contemplated
actions, suits or proceedings, whether civil, criminal, administrative or
investigative, brought against such indemnified person by reason of the fact
that such person was an officer, director, employee or agent of the Company or
serving in such capacity. In addition, the Board of Directors may authorize
the Company to purchase and maintain insurance on behalf of any such person
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Company
would have the power to indemnify him against such liability under the
provisions of the Articles. The Company plans to purchase directors and
officers liability insurance from third parties for its directors and
executive officers. The Company also plans to enter into indemnity agreements
with each of its executive officers and directors.
The Articles provide that directors of the Company shall have no personal
liability to the Company or its shareholders for monetary damages for breach
of fiduciary or other duties as a director, except (i) for any breach of a
director's duty of loyalty to the Company or its shareholders; (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (iii) a payment of a dividend on stock of the
Company or a purchase or redemption of stock of the Company in violation of
law; or (iv) for any transaction from which a director derived an improper
personal benefit.
Reference is made to the form of Underwriting Agreement to be filed as
Exhibit 1.1 hereto for provisions providing that the Underwriters are
obligated, under certain circumstances, to indemnify the directors, certain
officers and controlling persons of the Company against liabilities under the
Securities Act of 1933, as amended (the "Securities Act").
II-1
<PAGE>
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
Since its formation, the Company issued the following securities that were
not registered under the Securities Act:
(a) On May 12, 1998, the Company sold 1,500,000 Ordinary Shares to
Scottish Holdings, Ltd., for an aggregate purchase price of $500,000.
(b) On June 9, 1998, the Company sold Class A Warrants to purchase an
aggregate of 1,550,000 Ordinary Shares to Michael C. French, Michelle L.
Boucher, Audubon Assets Limited and Soulieana Limited for an aggregate
purchase price of $100,000.
(c) On June 18, 1998, the Company sold Class B Warrants to purchase an
aggregate of 200,000 Ordinary Shares to The Roman Arch Fund L.P. and The
Roman Arch Fund II L.P. for an aggregate purchase price of $302,000.
No underwriters were involved in the foregoing sales of securities. Such
sales were made in reliance upon an exemption from the registration provisions
of the Securities Act set forth in Section 4(2) thereof relative to sales by
an issuer not involving a public offering. All of the foregoing securities are
deemed restricted securities for purposes of the Securities Act.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits. Except as otherwise indicated, the following Exhibits are filed
herewith and made a part hereof:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------
<C> <S>
1.1+ Form of Underwriting Agreement between the Company and the
Underwriters.
3.1+ Articles of Association of the Company.
3.2+ Memorandum of Association of the Company.
4.1* Specimen Ordinary Share Certificate.
4.2* Form of Amended and Restated Class A Warrant.
4.3* Form of Amended and Restated Class B Warrant.
4.4* Form of Securities Purchase Agreement for the Class A Warrants.
4.5* Form of Warrant Purchase Agreement for the Class B Warrants.
4.6* Form of Registration Rights Agreement for the Class A Warrants.
4.7* Form of Registration Rights Agreement for the Class B Warrants.
4.8+ Form of Class C Warrant.
4.9+ Form of Registration Rights Agreement for the Class C Warrants.
5.1* Opinion of Maples and Calder as to the validity of the securities
being offered.
8.1* Opinion of Maples and Calder.
8.2* Opinion of Jones, Day, Reavis & Pogue.
10.1** Employment Agreement dated June 18, 1998 between the Company and
Michael C. French.
10.2** Employment Agreement dated June 18, 1998 between the Company and
Michelle L. Boucher.
10.3* Amended and Restated 1998 Stock Option Plan dated September 2, 1998.
10.4* Form of Stock Option Agreement in connection with 1998 Stock Option
Plan.
10.8** Agreement dated June 30, 1998 between the Company and International
Risk Management (Cayman) Ltd.
10.9+ Amended and Restated Insurance Administration, Services and Referral
Agreement dated as of October , 1998 between the Company and The
Scottish Annuity Company (Cayman) Ltd.
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------
<C> <S>
10.10** Employment Agreement dated July 20, 1998 between the Company and
Henryk Sulikowski.
10.12** Form of Indemnification Agreement between the Company and each of its
directors and officers.
10.13+ Investment Management Agreement dated , 1998 between the Company
and Pacific Investment Management Company.
10.14+ Investment Management Agreement dated , 1998 between the Company
and General Re--New England Asset Management, Inc.
10.15+ Agreement dated , 1998 between the Company and Westport Worldwide
Bermuda, Ltd.
21.1** Subsidiaries of Registrant.
23.1* Consent of Maples and Calder (contained in Exhibit 5.1).
23.2* Consent of Jones, Day, Reavis & Pogue (contained in Exhibit 8.2).
23.3* Consent of Ernst & Young.
23.4** Consent of The Bernstein Law Firm.
99.1** Consent of Michael Austin.
99.2** Consent of George Ellis.
99.3** Consent of Howard Shapiro.
99.4** Form F-N.
</TABLE>
- --------
* Filed herewith.
** Previously filed.
+ To be filed by amendment.
(b) Financial Statement Schedules
All financial statement schedules are omitted because they are either not
applicable or the required information is included in the balance sheet or
notes thereto appearing elsewhere in this Registration Statement.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes to provide to the underwriters
at the closing specified in the underwriting agreement, certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions or otherwise, the Company has
been advised that in the opinion of the Securities and Exchange Commission,
such indemnification is against public policy as expressed in said Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company
in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities
being registered, the Company will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
II-3
<PAGE>
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as a part
of this registration statement in reliance upon Rule 430A and contained in
the form of prospectus filed by the registrant pursuant to Rule 424(b) (1)
or (4) or 497(h) under the Securities Act shall be deemed to be part of
this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company has
duly caused this Amendment No. 3 to Registration Statement No. 333-57227 to be
signed on its behalf by the undersigned, thereunto duly authorized, in New
York, New York, on October 9, 1998.
SCOTTISH ANNUITY & LIFE HOLDINGS, LTD.
/s/ Michael C. French
By: ___________________________________
Michael C. French
Chairman of the Board and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 3 to Registration Statement No. 333-57227 has been signed by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Michael C. French Chairman of the Board, Chief October 9, 1998
____________________________________ Executive Officer and
Michael C. French Director (Principal
Executive Officer)
/s/ Michelle L. Boucher Senior Vice President, Chief October 9, 1998
____________________________________ Financial Officer and
Michelle L. Boucher Secretary (Principal
Financial Officer and
Principal Accounting
Officer)
/s/ Donald J. Puglisi Authorized Representative in October 9, 1998
____________________________________ the United States
Donald J. Puglisi
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
SEQUENTIAL
NUMBER
PAGE NO. DESCRIPTION OF DOCUMENT
---------- -----------------------
<C> <S>
1.1+ Form of Underwriting Agreement between the Company and the
Underwriters.
3.1+ Articles of Association of the Company.
3.2+ Memorandum of Association of the Company.
4.1* Specimen Ordinary Share Certificate.
4.2* Form of Amended and Restated Class A Warrant.
4.3* Form of Amended and Restated Class B Warrant.
4.4* Form of Securities Purchase Agreement for the Class A Warrants.
4.5* Form of Warrant Purchase Agreement for the Class B Warrants.
4.6* Form of Registration Rights Agreement for the Class A Warrants.
4.7* Form of Registration Rights Agreement for the Class B Warrants.
4.8+ Form of Class C Warrant.
4.9+ Form of Registration Rights Agreement for the Class C Warrants.
5.1* Opinion of Maples and Calder as to the validity of the securities
being offered.
8.1* Opinion of Maples and Calder.
8.2* Opinion of Jones, Day, Reavis & Pogue.
10.1** Employment Agreement dated June 18, 1998 between the Company and
Michael C. French.
10.2** Employment Agreement dated June 18, 1998 between the Company and
Michelle L. Boucher.
10.3* Amended and Restated 1998 Stock Option Plan dated September 2,
1998.
10.4* Form of Stock Option Agreement in connection with 1998 Stock Option
Plan.
10.8** Agreement dated June 30, 1998 between the Company and International
Risk Management (Cayman) Ltd.
10.9+ Amended and Restated Insurance Administration, Services and
Referral Agreement dated as of October , 1998 between the Company
and The Scottish Annuity Company (Cayman) Ltd.
10.10** Employment Agreement dated July 20, 1998 between the Company and
Henryk Sulikowski.
10.12** Form of Indemnification Agreement between the Company and each of
its directors and officers.
10.13+ Investment Management Agreement dated , 1998 between the Company
and Pacific Investment Management Company.
10.14+ Investment Management Agreement dated , 1998 between the Company
and General Re--New England Asset Management, Inc.
10.15+ Agreement dated , 1998 between the Company and Westport
Worldwide Bermuda, Ltd.
21.1** Subsidiaries of Registrant.
23.1* Consent of Maples and Calder (contained in Exhibit 5.1).
23.2* Consent of Jones, Day, Reavis & Pogue (contained in Exhibit 8.2).
23.3* Consent of Ernst & Young.
23.4** Consent of The Bernstein Law Firm.
99.1** Consent of Michael Austin.
99.2** Consent of George Ellis.
99.3** Consent of Howard Shapiro.
99.4** Form F-N.
</TABLE>
- --------
*Filed herewith.
**Previously filed.
+To be filed by amendment.
<PAGE>
FRONT
SCOTTISH ANNUITY & LIFE HOLDINGS, LTD.
SCT
INCORPORATED UNDER THE LAWS OF THE CAYMAN ISLANDS
ORDINARY SHARES
PAR VALUE ONE CENT (U.S. $.01)
THIS CERTIFICATE IS TRANSFERABLE IN CHICAGO, ILLINOIS OR NEW YORK, NEW YORK
LOGO SHARES
CUSIP G7885T 10 4
SEE REVERSE SIDE FOR CERTAIN DEFINITIONS
This Certifies that
is the registered owner of
FULLY PAID AND NON-ASSESSABLE ORDINARY SHARES OF
SCOTTISH ANNUITY & LIFE HOLDINGS, LTD. transferable on the books of the Company
by the registered holder hereof in person or by duly authorized attorney upon
surrender of this Certificate properly endorsed. This Certificate is not valid
unless countersigned by the Transfer Agent and registered by the Registrar.
In Witness Whereof, the Company has caused this Certificate to be signed by its
duly authorized officers by the use of their facsimile signatures and its
facsimile seal to be hereunto affixed.
Dated
Chairman of the Board and Chief Executive Officer
Senior Vice President, Chief Financial Officer and Secretary
SEAL COUNTERSIGNED AND REGISTERED:
HARRIS TRUST AND SAVINGS BANK
TRANSFER AGENT
AND REGISTRAR
BY
AUTHORIZED SIGNATURE
<PAGE>
BACK
SCOTTISH ANNUITY & LIFE HOLDINGS, LTD.
The Company will furnish to any shareholder, upon request and without
charge, a full statement of the powers, designations, preferences, and relative,
participating, optional or other special rights of each class of shares of the
Company authorized to be issued, or series thereof, and the qualifications,
limitations or restrictions of such preferences and/or rights. Such request may
be made to the Company or to the Transfer Agent.
The following abbreviations, when used in the inscription on the face of
this Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT -- ................. Custodian ...............
(Cust) (Minor)
under Uniform Gifts to Minors
Act .................................
(State)
Additional abbreviations may also be used though not in the above list.
For value received, _________________ hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------
- --------------------------------------
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
__________________________________________________________________________Shares
represented by the within Certificate, and do hereby irrevocably constitute
and appoint
________________________________________________________________________Attorney
to transfer the said shares on the books of the within named Company with full
power of substitution in the premises.
Dated _____________
NOTICE:
THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME(S) AS WRITTEN
UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR WITHOUT ALTERATION OR EN-
LARGEMENT OR ANY CHANGE WHATEVER.
X ________________________________
(SIGNATURE)
X ________________________________
(SIGNATURE)
THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN
AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE
17Ad-15.
SIGNATURE(S) GUARANTEED BY:
<PAGE>
EXHIBIT 4.2
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE
HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAW, AND
THEY MAY NOT BE SOLD, ASSIGNED, PLEDGED, HYPOTHECATED
OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH
APPLICABLE FEDERAL AND STATE SECURITIES LAWS
AND THE OTHER RESTRICTIONS ON TRANSFER
SET FORTH HEREIN.
------------------------
Date: _____, 1998
FORM OF
AMENDED AND RESTATED
CLASS A WARRANT
TO PURCHASE ORDINARY SHARES OF
SCOTTISH LIFE HOLDINGS, LTD.
Void after 5:00 P.M. (United States Eastern Time), on the Termination Date, as
defined and provided herein.
THIS CERTIFIES that, for value received, _____________ (the "Warrant
Holder") or registered assigns, is entitled to purchase from Scottish Life
Holdings, Ltd. (the "Company"), upon the satisfaction of the conditions stated
herein and during the period (subject to Section 2 hereof) from and after the
first anniversary of the consummation of the Company's initial public offering
(the "Offering") of its ordinary shares, par value $.01 per share (the "Ordinary
Shares"), to 5:00 p.m. (United States Eastern Time) on the tenth anniversary of
the consummation of the Offering (the "Termination Date"), ________ Ordinary
Shares subject to adjustment as provided herein, at a per share purchase price
equal to the sales price to the public of an Ordinary Share in the Offering. The
Company acknowledges receipt from the initial Warrant Holder of _________
($_________) in full payment for the issuance of this warrant.
1. DEFINITIONS. For the purpose of this Warrant:
-----------
(a) "Capital Stock" shall mean the Company's Ordinary Shares and
any other shares of any class, or series within a class, whether now or
hereafter authorized, which has the right to participate in the distribution of
earnings or assets of the Company without limit as to amount or percentage.
(b) "Warrants" shall mean the original Class A Warrant to
purchase Ordinary Shares of the Company issued by the Company pursuant hereto
and any and all Warrants which are issued in exchange or substitution for any
outstanding Warrant pursuant to the terms of the Warrant.
<PAGE>
(c) "Warrant Price" shall mean the price per share at which
Ordinary Shares of the Company are purchasable hereunder, as such price may be
adjusted from time to time hereunder.
(d) "Warrant Shares" shall mean the Ordinary Shares purchasable
upon exercise of Warrants.
2. EXERCISE OF WARRANTS.
--------------------
(a) This Warrant may be exercised at any time or from time to
time on or after (i) the first anniversary of the consummation of the Offering
for up to one-third of the number of Warrant Shares provided for on page 1
hereof, (ii) the second anniversary of the consummation of the Offering for up
to an additional one-third of the number of Warrant Shares provided for on page
1 hereof, and (iii) the third anniversary of the consummation of the Offering
for up to an additional one-third of the number of Warrant Shares provided for
on page 1 hereof, in each case subject to adjustment as provided in Section 6.
Subject to the foregoing, this Warrant may be exercised at any time or from time
to time in whole or in part (but not as to fractional shares) prior to 5:00 p.m.
United States Eastern Time on the Termination Date, at which time this Warrant
and all of the Warrant Holder's rights hereunder shall terminate, except as
expressly provided herein. Notwithstanding the foregoing, upon a Change in
Control of the Company (as defined below) this Warrant shall become immediately
exercisable for the full number of Warrant Shares provided for on page 1 hereof.
For purposes of this Section 2(a), a "Change in Control" of the Company shall be
deemed to have occurred if:
(i) the Company is merged or consolidated or reorganized into
or with another corporation or other legal person, and as a result of such
merger, consolidation or reorganization less than a majority of the combined
voting power of the then-outstanding securities of such corporation or person
immediately after such transaction are held in the aggregate by the holders of
securities entitled to vote generally in the election of Directors immediately
prior to such transaction;
(ii) the Company sells or otherwise transfers all or
substantially all of its assets to any other corporation or other legal person,
and less than a majority of the combined voting power of the then-outstanding
securities of such corporation or person immediately after such sale or transfer
is held in the aggregate by the holders of Ordinary Shares immediately prior to
such sale or transfer;
(iii) the Company files a report or proxy statement with the
Securities and Exchange Commission pursuant to the Act disclosing in response to
Form 8-K or Schedule 14A (or any successor schedule, form or report or item
therein) that a change in control of the Company has or may have occurred or
will or may occur in the future pursuant to any then-existing contract or
transaction; or
(iv) if during any period of two consecutive years,
individuals who at the beginning of any such period constitute the Directors
cease for any reason to
2
<PAGE>
constitute at least a majority thereof, unless the election, or the nomination
for election by the Company's shareholders, of each Director first elected
during such period was approved by a vote of at least two-thirds of the
Directors then still in office who were Directors at the beginning of any such
period.
Notwithstanding the foregoing provisions of this Section 2(a), a Change in
Control shall not be deemed to have occurred for purposes of this Agreement (i)
by reason of any action taken by the Company, including changes in beneficial
ownership of equity securities of the Company occurring in connection with the
Offering; (ii) solely because (A) the Company, (B) a Subsidiary, or (C) any
Company-sponsored employee stock ownership plan or other employee benefit plan
of the Company either files or becomes obligated to file a report or proxy
statement under or in response to Schedule 13D, Schedule 14D-1, Form 8-K or
Schedule 14A (or any successor schedule, form or report or item therein) under
the Act, disclosing beneficial ownership by it of shares, or because the Company
reports that a change of control of the Company has or may have occurred or will
or may occur in the future by reason of such beneficial ownership; or (iii)
solely because of a change in control of any Subsidiary other than Scottish Life
Assurance (Cayman) Ltd.
(b) This Warrant may be exercised at the time(s) or upon the
occurrence of the event(s) specified in Subsection 2(a) hereof by the surrender
of this Warrant, with the Purchase Agreement attached hereto as Annex A properly
completed and duly executed, at the principal office of the Company at Ugland
House, South Church Street, George Town, Grand Cayman, Cayman Islands, British
West Indies, or such other location which shall at that time be the principal
office of the Company and of which the Company shall have notified the Warrant
Holder in writing (the "Principal Office"), or at the office of the transfer
agent for the Ordinary Shares, and upon payment to the Company of the Warrant
Price for the Warrant Shares to be purchased upon such exercise. The person
entitled to the Warrant Shares so purchased shall be treated for all purposes as
the holder of such shares as of the close of business on the date of exercise
and certificates for the shares so purchased shall be delivered to the person so
entitled within a reasonable time, not exceeding fifteen (15) days, after such
exercise. Certificates representing the Warrant Shares issued upon exercise of
this Warrant shall bear a legend referring to the restrictions on transfer set
forth herein. Unless this Warrant has expired, a new Warrant of like tenor and
for such number of Ordinary Shares as the holder of this Warrant shall direct,
representing in the aggregate the right to purchase the number of Ordinary
Shares with respect to which this Warrant shall not have been exercised, shall
also be issued to the holder of this Warrant within such time.
(c) The Warrant Price shall be payable in cash or its equivalent.
3. EXCHANGE. This Warrant is exchangeable, upon its surrender by
--------
the Warrant Holder to the Company at its Principal Office, or to the Company's
stock transfer agent at its office, for new Warrants of like tenor registered in
the Warrant Holder's name and representing in the aggregate the right to
purchase the same number of Common Shares purchasable hereunder, each of such
new Warrants to represent the right to subscribe for and purchase such number of
Common Shares as shall be designated by the Warrant Holder at the time of such
surrender.
3
<PAGE>
4. TRANSFER. Subject to restrictions on transfer set forth in
--------
Section 10, this Warrant is transferable, in whole or in part, by the holder
thereof at the Principal Office of the Company or at the office of its stock
transfer agent, in person or by duly authorized attorney, upon presentation of
this Warrant properly endorsed for transfer, the Assignment attached hereto as
Annex A duly executed, and funds sufficient to pay any transfer tax (the
"Transfer Documents"). Within a reasonable time after receiving the Transfer
Documents, not exceeding fifteen (15) days, the Company shall execute and
deliver a new Warrant in the name of the assignee named in the Assignment and
this Warrant shall be canceled. Each holder of this Warrant, by holding it,
agrees that this Warrant, when endorsed in blank, may be deemed negotiable, and
that, when this Warrant shall been so endorsed, the holder of this Warrant may
be treated by the Company and all other persons dealing with this Warrant as the
absolute owner of this Warrant for any purpose and as the person entitled to
exercise the rights represented by this Warrant, or to the transfer of this
Warrant on the books of the Company, any notice to the contrary notwithstanding.
5. CERTAIN COVENANTS OF THE COMPANY. The Company covenants and
--------------------------------
agrees that all Ordinary Shares that may be issued upon the exercise of this
Warrant, will, upon issuance, be duly and validly issued, fully paid and
nonassessable and free from all taxes, liens and charges with respect to the
issue thereof. The Company further covenants and agrees that during the period
within which the rights represented by this Warrant may be exercised, the
Company will at all times have authorized, and reserved for the purpose of issue
upon exercise of the purchase rights evidenced by this Warrant, a sufficient
number of Ordinary Shares to provide for the exercise of the rights represented
by this Warrant.
6. ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES. The number
-------------------------------------------------
and kind of securities purchasable upon the exercise of this Warrant and the
Warrant Price shall be subject to adjustment from time to time upon the
happening of certain events as follows:
(a) Reclassification, Consolidation or Merger. At any time while
-----------------------------------------
this Warrant remains outstanding and unexpired, in case of any reclassification
or change of outstanding securities of the class issuable upon exercise of this
Warrant (other than a change in par value, or from par value to no par value, or
from no par value to par value, or as a result of a subdivision or combination
of outstanding securities issuable upon the exercise of this Warrant) or in case
of any consolidation or merger of the Company with or into another corporation
(other than a merger with another corporation in which the Company is a
continuing corporation and which does not result in any reclassification or
change, other than a change in par value, or from par value to no par value, or
from no par value to par value, or as a result of a subdivision or combination
of outstanding securities issuable upon the exercise of this Warrant), the
Company, or such successor corporation, as the case may be, shall, without
payment of any additional consideration therefor, execute a new Warrant
providing that the Warrant Holder shall have the right to exercise such new
Warrant (upon terms not less favorable to the Warrant Holder than those then
applicable to this Warrant) and to receive upon such exercise, in lieu of each
Ordinary Share theretofore issuable upon exercise of this Warrant, the kind and
amount of shares of stock, other securities, money or property receivable upon
such reclassification, change, consolidation or merger, by the holder of one
Ordinary Share issuable upon exercise of this Warrant had it been
4
<PAGE>
exercised immediately prior to such reclassification, change, consolidation or
merger. Such new Warrant shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Section
6. The provisions of this Subsection 6(a) shall similarly apply to successive
reclassifications, changes, consolidations, mergers, sales and transfers.
(b) Subdivision or Combination of Shares. If the Company at any
------------------------------------
time while this Warrant remains outstanding and unexpired shall subdivide or
combine its Capital Stock, the Warrant Price shall be proportionately reduced,
in case of subdivision of such shares, as of the effective date of such
subdivision, or, if the Company shall take a record of holders of its Capital
Stock for the purpose of so subdividing, as of such record date, whichever is
earlier, or shall be proportionately increased, in the case of combination of
such shares, as of the effective date of such combination, or, if the Company
shall take a record of holders of its Capital Stock for the purpose of so
combining, as of such record date, whichever is earlier.
(c) Certain Dividends and Distributions. If the Company at any
-----------------------------------
time while this Warrant remains outstanding and unexpired shall:
(i) Stock Dividends. Pay a dividend in shares of, or make
---------------
other distribution of shares of, its Capital Stock, then the Warrant Price shall
be adjusted, as of the date the Company shall take a record of the holders of
its Capital Stock for the purpose of receiving such dividend or other
distribution (or if no such record is taken, as of the date of such payment or
other distribution), to that price determined by multiplying the Warrant Price
in effect immediately prior to such payment or other distribution by a fraction
(A) the numerator of which shall be the total number of shares of Capital Stock
outstanding immediately prior to such dividend or distribution, and (B) the
denominator of which shall be the total number of shares of Capital Stock
outstanding immediately after such dividend or distribution; or
(ii) Liquidating Dividends, Etc. Make a distribution of
--------------------------
its assets to the holders of its Capital Stock as a dividend in liquidation or
by way of return of capital or other than as a dividend payable out of earnings
or surplus legally available for dividends under applicable law, the Warrant
Holder shall be entitled to receive upon the exercise hereof, in addition to the
number of Ordinary Shares receivable thereupon, and without payment of any
additional consideration therefor, a sum equal to the amount of such assets as
would have been payable to him as owner of that number of Ordinary Shares
receivable by exercise of the Warrant had he been the holder of record of such
Ordinary Shares on the record date for such distribution, or if no such record
is taken, as of the date of such distribution, and an appropriate provision
therefor shall be made a part of any such distribution.
(d) Adjustment of Number of Shares. Upon each adjustment in the
------------------------------
Warrant Price pursuant to any provision of this Section 6, the number of
Ordinary Shares purchasable hereunder at the Warrant Price shall be adjusted, to
the nearest one hundredth of a whole share, to the product obtained by
multiplying such number of Ordinary Shares purchasable immediately prior to such
adjustment in the Warrant Price by a fraction, the numerator of which shall be
the Warrant Price immediately prior to such adjustment and the denominator of
which shall be the Warrant Price immediately thereafter.
5
<PAGE>
(e) Limitation or Adjustment of Warrant Price. Notwithstanding any
-----------------------------------------
other provision of this Warrant, no adjustment of the Warrant Price shall be
made which would reduce such Warrant Price below the par value of the Warrant
Shares.
7. PAYMENT OF TAXES. All Ordinary Shares issued upon the exercise of
----------------
this Warrant shall be validly issued, fully paid and nonassessable, and the
Company shall pay all taxes and other governmental charges that may be imposed
in respect of the issue or delivery thereof. The Company shall not be required,
however, to pay any tax or other charge imposed in connection with any transfer
involved in the issue of any certificate for Ordinary Shares in any name other
than that of the registered holder of the Warrant surrendered in connection with
the purchase of such shares, and in such case the Company shall not be required
to issue or deliver any share certificate until such tax or other charge has
been paid or it has been established to the Company's satisfaction that no tax
or other charge is due.
8. FRACTIONAL SHARES. No fractional Ordinary Shares will be issued
-----------------
in connection with any purchase hereunder but in lieu of such fractional shares,
the Company shall make a cash refund therefor equal in amount to the product of
the applicable fraction multiplied by the Warrant Price paid by the holder for
its Warrant Shares upon such exercise.
9. LOSS, THEFT, DESTRUCTION OR MUTILATION. Upon receipt by the
--------------------------------------
Company of evidence reasonably satisfactory to it that this Warrant has been
mutilated, destroyed, lost or stolen, and in the case of a destroyed, lost or
stolen Warrant, a bond of indemnity reasonably satisfactory to the Company, or
in the case of a mutilated Warrant, upon surrender and cancellation of this
Warrant, the Company will execute and deliver in the Warrant Holder's name, in
exchange and substitution for the Warrant so mutilated, destroyed, lost or
stolen, a new Warrant of like tenor substantially in the form hereof with
appropriate insertions and variations.
10. SECURITIES LAWS REPRESENTATIONS AND WARRANTIES; TRANSFER TO
-----------------------------------------------------------
COMPLY WITH SECURITIES LAWS.
- ---------------------------
(a) The Warrant Holder, by acceptance of this Warrant, represents and
warrants to the Company that this Warrant is being, and any Warrant Shares
acquired on exercise of this Warrant will be, acquired by the Warrant Holder for
his own account and not with a view to resale or distribution within the meaning
of the Securities Act of 1933, as amended (the "Securities Act"), and the
Warrant Holder will not distribute this Warrant or any Warrant Shares in
violation of the Securities Act or any applicable state or foreign law;
provided, however, that the disposition of this Warrant and the Warrant Shares
- -------- -------
shall at all times remain in the Warrant Holder's control.
(b) The Warrant Holder, by acceptance of this Warrant, (i)
acknowledges that this Warrant and the Warrant Shares are not registered under
the Securities Act or any state securities laws and that this Warrant and any
Warrant Shares to be issued to it upon the exercise of this Warrant must be held
indefinitely by it unless they are subsequently registered under the Securities
Act and all applicable state securities laws or an exemption from
6
<PAGE>
registration is available, (ii) is aware that any routine sales under Rule 144,
promulgated under the Securities Act, of this Warrant and the Warrant Shares may
be made only in limited amounts and in accordance with the terms and conditions
of that Rule and that in such cases where the Rule is not applicable, compliance
with some other registration exemption will be required, (iii) is aware that
Rule 144 is not as of the date hereof available for use by the Warrant Holder
for resale of such Warrant and Warrant Shares, and (iv) is aware that the
Company is not obligated to register under the Securities Act any sale, transfer
or other disposition of this Warrant or the Warrant Shares.
(c) The Warrant Holder, by acceptance of this Warrant, confirms
that the Company has made available to him the opportunity to ask questions of
and receive answers from the Company's officers and directors concerning the
terms and conditions of the offering and the business and financial condition of
the Company, and to acquire, and the Warrant Holder has received to his
satisfaction, such additional information about the business and financial
condition of the Company and the terms and conditions of the offering as it has
requested.
(d) The Warrant Holder, by acceptance of this Warrant, represents
that (i) he is an "accredited investor" as such term is defined in Rule 501
promulgated under the Securities Act, (ii) his financial situation is such that
he can afford to bear the economic risk of holding this Warrant and the Warrant
Shares for an indefinite period of time and suffer complete loss of his
investment in this Warrant and the Warrant Shares, and (iii) his knowledge and
experience in financial and business matters are such that he is capable of
evaluating the merits and risks of his purchase of this Warrant and the Warrant
Shares as contemplated by this Agreement.
(e) The certificate representing any Warrant Shares acquired upon
exercise of this Warrant, and any Ordinary Shares or other securities issued in
respect of such Warrant Shares upon any stock split, stock dividend,
recapitalization, merger, consolidation or similar event, shall be stamped or
otherwise imprinted with the following legend (unless such a legend is no longer
required under the Securities Act):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAW
AND MAY NOT BE SOLD EXCEPT IN A TRANSACTION WHICH IS (A) EXEMPT UNDER SUCH ACT
OR (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT. IN
ADDITION, THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS
ON TRANSFER AS SET FORTH IN A CLASS A WARRANT OF THE COMPANY DATED _____,
1998."
(f) The Company shall not be required to register the transfer of
this Warrant or any Warrant Shares on the books of the Company unless the
Company shall have been provided with an opinion of counsel satisfactory to it
or no-action letters from the Securities and Exchange Commission and the
appropriate state regulatory agencies prior to such transfer to the effect that
registration under the Securities Act and any applicable state securities law is
not required in connection with the transaction resulting in such transfer;
provided, however, that no
7
<PAGE>
such opinion of counsel or no-action letter shall be necessary in order to
effectuate a transfer in accordance with the provisions of Rule 144(k)
promulgated under the Securities Act or pursuant to an effective registration
statement under the Securities Act. Each Warrant or certificate for Warrant
Shares issued upon any transfer as above provided shall bear the restrictive
legend set forth in Subsection 10(e) above, except that such restrictive legend
shall not be required if the opinion of counsel satisfactory to the Company or
no-action letters referred to above are to the further effect that such legend
is not required in order to establish compliance with the provisions of the
Securities Act and any applicable state securities law, or if the transfer is
made in accordance with the provisions of Rule 144(k) promulgated under the
Securities Act or pursuant to an effective registration statement under the
Securities Act. The cost of obtaining any legal opinion or no-action letter
required under this Section shall be borne by the Warrant Holder.
11. SURVIVAL. The provisions of Section 10 shall survive any
--------
expiration, cancellation or exercise of this Warrant.
12. HEADINGS. The descriptive headings of the several sections of
--------
this Warrant are inserted for convenience only and do not constitute a part of
this Warrant.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
by its duly authorized officer under its corporate seal, attested by its duly
authorized officer, on the date of this Warrant.
SCOTTISH LIFE HOLDINGS, LTD.
By: _________________________________
Name:____________________________
Title:___________________________
ACCEPTED, ACKNOWLEDGED
AND AGREED
By: _______________________________
Name:__________________________
8
<PAGE>
Annex A
PURCHASE AGREEMENT
Date: __________________________
TO:
The undersigned, pursuant to the provisions set forth in the attached
Class A Warrant, hereby agrees to purchase _________________ Ordinary Shares
covered by such Class A Warrant, and makes payment herewith in full therefor at
the price per share provided by this Class A Warrant.
Signature: _______________________
Address: _______________________
* * * *
<PAGE>
ASSIGNMENT
For Value Received, ________________________________ hereby sells,
assigns and transfers all of the rights of the undersigned under the Class A
Warrant with respect to _________ of the number of Ordinary Shares covered by
such Class A Warrant, to:
NAME OF ASSIGNEE ADDRESS NO. OF SHARES
Dated: Signature: _______________________
Address: _______________________
<PAGE>
EXHIBIT 4.3
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE
HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAW, AND
THEY MAY NOT BE SOLD, ASSIGNED, PLEDGED, HYPOTHECATED
OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH
APPLICABLE FEDERAL AND STATE SECURITIES LAWS
AND THE OTHER RESTRICTIONS ON TRANSFER
SET FORTH HEREIN.
-------------------------
Date: _____, 1998
Form of
AMENDED AND RESTATED
CLASS B WARRANT
TO PURCHASE ORDINARY SHARES OF
SCOTTISH LIFE HOLDINGS, LTD.
Void after 5:00 P.M. (United States Eastern Time), on the Termination Date, as
defined and provided herein.
THIS CERTIFIES that, for value received, _____________ (the "Warrant
Holder") or registered assigns, is entitled to purchase from Scottish Life
Holdings, Ltd. (the "Company"), upon the satisfaction of the conditions stated
herein and during the period (subject to Section 2 hereof) from and after the
first anniversary of the consummation of the Company's initial public offering
(the "Offering") of its ordinary shares, par value $.01 per share (the "Ordinary
Shares"), to 5:00 p.m. (United States Eastern Time) on the tenth anniversary of
the consummation of the Offering (the "Termination Date"), ________ Ordinary
Shares subject to adjustment as provided herein, at a per share purchase price
equal to the sales price to the public of an Ordinary Share in the Offering. The
Company acknowledges receipt from the initial Warrant Holder of _________
($_________) in full payment for the issuance of this warrant.
1. DEFINITIONS. For the purpose of this Warrant:
-----------
(a) "Capital Stock" shall mean the Company's Ordinary Shares and any
other shares of any class, or series within a class, whether now or hereafter
authorized, which has the right to participate in the distribution of earnings
or assets of the Company without limit as to amount or percentage.
(b) "Warrants" shall mean the original Class B Warrant to purchase
Ordinary Shares of the Company issued by the Company pursuant hereto and any and
all Warrants which are issued in exchange or substitution for any outstanding
Warrant pursuant to the terms of the Warrant.
<PAGE>
(c) "Warrant Price" shall mean the price per share at which
Ordinary Shares of the Company are purchasable hereunder, as such price may be
adjusted from time to time hereunder.
(d) "Warrant Shares" shall mean the Ordinary Shares purchasable
upon exercise of Warrants.
2. EXERCISE OF WARRANTS.
--------------------
(a) This Warrant may be exercised at any time or from time to time on
or after (i) the first anniversary of the consummation of the Offering for up to
one-third of the number of Warrant Shares provided for on page 1 hereof, (ii)
the second anniversary of the consummation of the Offering for up to an
additional one-third of the number of Warrant Shares provided for on page 1
hereof, and (iii) the third anniversary of the consummation of the Offering for
up to an additional one-third of the number of Warrant Shares provided for on
page 1 hereof, in each case subject to adjustment as provided in Section 6.
Subject to the foregoing, this Warrant may be exercised at any time or from time
to time in whole or in part (but not as to fractional shares) prior to 5:00 p.m.
United States Eastern Time on the Termination Date, at which time this Warrant
and all of the Warrant Holder's rights hereunder shall terminate, except as
expressly provided herein. Notwithstanding the foregoing, upon a Change in
Control of the Company (as defined below) this Warrant shall become immediately
exercisable for the full number of Warrant Shares provided for on page 1 hereof.
For purposes of this Section 2(a), a "Change in Control" of the Company shall be
deemed to have occurred if:
(i) the Company is merged or consolidated or reorganized into or
with another corporation or other legal person, and as a result of such merger,
consolidation or reorganization less than a majority of the combined voting
power of the then-outstanding securities of such corporation or person
immediately after such transaction are held in the aggregate by the holders of
securities entitled to vote generally in the election of Directors immediately
prior to such transaction;
(ii) the Company sells or otherwise transfers all or substantially
all of its assets to any other corporation or other legal person, and less than
a majority of the combined voting power of the then-outstanding securities of
such corporation or person immediately after such sale or transfer is held in
the aggregate by the holders of Ordinary Shares immediately prior to such sale
or transfer;
(iii) the Company files a report or proxy statement with the
Securities and Exchange Commission pursuant to the Act disclosing in response to
Form 8-K or Schedule 14A (or any successor schedule, form or report or item
therein) that a change in control of the Company has or may have occurred or
will or may occur in the future pursuant to any then-existing contract or
transaction; or
(iv) if during any period of two consecutive years, individuals who
at the beginning of any such period constitute the Directors cease for any
reason to constitute at least a majority thereof, unless the election, or the
nomination for election by the
2
<PAGE>
Company's shareholders, of each Director first elected during such period was
approved by a vote of at least two-thirds of the Directors then still in office
who were Directors at the beginning of any such period.
Notwithstanding the foregoing provisions of this Section 2(a), a Change in
Control shall not be deemed to have occurred for purposes of this Agreement (i)
by reason of any action taken by the Company, including changes in beneficial
ownership of equity securities of the Company occurring in connection with the
Offering; (ii) solely because (A) the Company, (B) a Subsidiary, or (C) any
Company-sponsored employee stock ownership plan or other employee benefit plan
of the Company either files or becomes obligated to file a report or proxy
statement under or in response to Schedule 13D, Schedule 14D-1, Form 8-K or
Schedule 14A (or any successor schedule, form or report or item therein) under
the Act, disclosing beneficial ownership by it of shares, or because the Company
reports that a change of control of the Company has or may have occurred or will
or may occur in the future by reason of such beneficial ownership; or (iii)
solely because of a change in control of any Subsidiary other than Scottish Life
Assurance (Cayman) Ltd.
(b) This Warrant may be exercised at the time(s) or upon the
occurrence of the event(s) specified in Subsection 2(a) hereof by the surrender
of this Warrant, with the Purchase Agreement attached hereto as Annex A properly
completed and duly executed, at the principal office of the Company at Ugland
House, South Church Street, George Town, Grand Cayman, Cayman Islands, British
West Indies, or such other location which shall at that time be the principal
office of the Company and of which the Company shall have notified the Warrant
Holder in writing (the "Principal Office"), or at the office of the transfer
agent of the Ordinary Shares, and upon payment to the Company of the Warrant
Price for the Warrant Shares to be purchased upon such exercise. The person
entitled to the Warrant Shares so purchased shall be treated for all purposes as
the holder of such shares as of the close of business on the date of exercise
and certificates for the shares so purchased shall be delivered to the person so
entitled within a reasonable time, not exceeding fifteen (15) days, after such
exercise. Certificates representing the Warrant Shares issued upon exercise of
this Warrant shall bear a legend referring to the restrictions on transfer set
forth herein. Unless this Warrant has expired, a new Warrant of like tenor and
for such number of Ordinary Shares as the holder of this Warrant shall direct,
representing in the aggregate the right to purchase the number of Ordinary
Shares with respect to which this Warrant shall not have been exercised, shall
also be issued to the holder of this Warrant within such time.
(c) The Warrant Price shall be payable in cash or its equivalent.
3. EXCHANGE. This Warrant is exchangeable, upon its surrender by
--------
the Warrant Holder to the Company at its Principal Office, or to the Company's
stock transfer agent at its office, for new Warrants of like tenor registered in
the Warrant Holder's name and representing in the aggregate the right to
purchase the same number of Common Shares purchasable hereunder, each of such
new Warrants to represent the right to subscribe for and purchase such number of
Common Shares as shall be designated by the Warrant Holder at the time of such
surrender.
3
<PAGE>
4. TRANSFER. Subject to restrictions on transfer set forth in
--------
Section 10, this Warrant is transferable, in whole or in part, by the holder
thereof at the Principal Office of the Company or at the office of its stock
transfer agent, in person or by duly authorized attorney, upon presentation of
this Warrant properly endorsed for transfer, the Assignment attached hereto as
Annex A duly executed, and funds sufficient to pay any transfer tax (the
"Transfer Documents"). Within a reasonable time after receiving the Transfer
Documents, not exceeding fifteen (15) days, the Company shall execute and
deliver a new Warrant in the name of the assignee named in the Assignment and
this Warrant shall be canceled. Each holder of this Warrant, by holding it,
agrees that this Warrant, when endorsed in blank, may be deemed negotiable, and
that, when this Warrant shall been so endorsed, the holder of this Warrant may
be treated by the Company and all other persons dealing with this Warrant as the
absolute owner of this Warrant for any purpose and as the person entitled to
exercise the rights represented by this Warrant, or to the transfer of this
Warrant on the books of the Company, any notice to the contrary notwithstanding.
5. CERTAIN COVENANTS OF THE COMPANY. The Company covenants and
--------------------------------
agrees that all Ordinary Shares that may be issued upon the exercise of this
Warrant, will, upon issuance, be duly and validly issued, fully paid and
nonassessable and free from all taxes, liens and charges with respect to the
issue thereof. The Company further covenants and agrees that during the period
within which the rights represented by this Warrant may be exercised, the
Company will at all times have authorized, and reserved for the purpose of issue
upon exercise of the purchase rights evidenced by this Warrant, a sufficient
number of Ordinary Shares to provide for the exercise of the rights represented
by this Warrant.
6. ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES. The number
-------------------------------------------------
and kind of securities purchasable upon the exercise of this Warrant and the
Warrant Price shall be subject to adjustment from time to time upon the
happening of certain events as follows:
(a) Reclassification, Consolidation or Merger. At any time while
-----------------------------------------
this Warrant remains outstanding and unexpired, in case of any reclassification
or change of outstanding securities of the class issuable upon exercise of this
Warrant (other than a change in par value, or from par value to no par value, or
from no par value to par value, or as a result of a subdivision or combination
of outstanding securities issuable upon the exercise of this Warrant) or in case
of any consolidation or merger of the Company with or into another corporation
(other than a merger with another corporation in which the Company is a
continuing corporation and which does not result in any reclassification or
change, other than a change in par value, or from par value to no par value, or
from no par value to par value, or as a result of a subdivision or combination
of outstanding securities issuable upon the exercise of this Warrant), the
Company, or such successor corporation, as the case may be, shall, without
payment of any additional consideration therefor, execute a new Warrant
providing that the Warrant Holder shall have the right to exercise such new
Warrant (upon terms not less favorable to the Warrant Holder than those then
applicable to this Warrant) and to receive upon such exercise, in lieu of each
Ordinary Share theretofore issuable upon exercise of this Warrant, the kind and
amount of shares of stock, other securities, money or property receivable upon
such reclassification, change, consolidation or merger, by the holder of one
Ordinary Share issuable upon exercise of this Warrant had it been exercised
immediately prior to such reclassification, change, consolidation or merger.
Such new
4
<PAGE>
Warrant shall provide for adjustments which shall be as nearly equivalent as may
be practicable to the adjustments provided for in this Section 6. The provisions
of this Subsection 6(a) shall similarly apply to successive reclassifications,
changes, consolidations, mergers, sales and transfers.
(b) Subdivision or Combination of Shares. If the Company at any
------------------------------------
time while this Warrant remains outstanding and unexpired shall subdivide or
combine its Capital Stock, the Warrant Price shall be proportionately reduced,
in case of subdivision of such shares, as of the effective date of such
subdivision, or, if the Company shall take a record of holders of its Capital
Stock for the purpose of so subdividing, as of such record date, whichever is
earlier, or shall be proportionately increased, in the case of combination of
such shares, as of the effective date of such combination, or, if the Company
shall take a record of holders of its Capital Stock for the purpose of so
combining, as of such record date, whichever is earlier.
(c) Certain Dividends and Distributions. If the Company at any
-----------------------------------
time while this Warrant remains outstanding and unexpired shall:
(i) Stock Dividends. Pay a dividend in shares of, or make
---------------
other distribution of shares of, its Capital Stock, then the Warrant Price shall
be adjusted, as of the date the Company shall take a record of the holders of
its Capital Stock for the purpose of receiving such dividend or other
distribution (or if no such record is taken, as of the date of such payment or
other distribution), to that price determined by multiplying the Warrant Price
in effect immediately prior to such payment or other distribution by a fraction
(A) the numerator of which shall be the total number of shares of Capital Stock
outstanding immediately prior to such dividend or distribution, and (B) the
denominator of which shall be the total number of shares of Capital Stock
outstanding immediately after such dividend or distribution; or
(ii) Liquidating Dividends, Etc. Make a distribution of its
---------------------
assets to the holders of its Capital Stock as a dividend in liquidation or by
way of return of capital or other than as a dividend payable out of earnings or
surplus legally available for dividends under applicable law, the Warrant Holder
shall be entitled to receive upon the exercise hereof, in addition to the number
of Ordinary Shares receivable thereupon, and without payment of any additional
consideration therefor, a sum equal to the amount of such assets as would have
been payable to its as owner of that number of Ordinary Shares receivable by
exercise of the Warrant had it been the holder of record of such Ordinary Shares
on the record date for such distribution, or if no such record is taken, as of
the date of such distribution, and an appropriate provision therefor shall be
made a part of any such distribution.
(d) Adjustment of Number of Shares. Upon each adjustment in the
------------------------------
Warrant Price pursuant to any provision of this Section 6, the number of
Ordinary Shares purchasable hereunder at the Warrant Price shall be adjusted, to
the nearest one hundredth of a whole share, to the product obtained by
multiplying such number of Ordinary Shares purchasable immediately prior to such
adjustment in the Warrant Price by a fraction, the numerator of which shall be
the Warrant Price immediately prior to such adjustment and the denominator of
which shall be the Warrant Price immediately thereafter.
5
<PAGE>
(e) Limitation or Adjustment of Warrant Price. Notwithstanding any
-----------------------------------------
other provision of this Warrant, no adjustment of the Warrant Price shall be
made which would reduce such Warrant Price below the par value of the Warrant
Shares.
7. PAYMENT OF TAXES. All Ordinary Shares issued upon the exercise of
----------------
this Warrant shall be validly issued, fully paid and nonassessable, and the
Company shall pay all taxes and other governmental charges that may be imposed
in respect of the issue or delivery thereof. The Company shall not be required,
however, to pay any tax or other charge imposed in connection with any transfer
involved in the issue of any certificate for Ordinary Shares in any name other
than that of the registered holder of the Warrant surrendered in connection with
the purchase of such shares, and in such case the Company shall not be required
to issue or deliver any share certificate until such tax or other charge has
been paid or it has been established to the Company's satisfaction that no tax
or other charge is due.
8. FRACTIONAL SHARES. No fractional Ordinary Shares will be issued
-----------------
in connection with any purchase hereunder but in lieu of such fractional shares,
the Company shall make a cash refund therefor equal in amount to the product of
the applicable fraction multiplied by the Warrant Price paid by the holder for
its Warrant Shares upon such exercise.
9. LOSS, THEFT, DESTRUCTION OR MUTILATION. Upon receipt by the
--------------------------------------
Company of evidence reasonably satisfactory to it that this Warrant has been
mutilated, destroyed, lost or stolen, and in the case of a destroyed, lost or
stolen Warrant, a bond of indemnity reasonably satisfactory to the Company, or
in the case of a mutilated Warrant, upon surrender and cancellation of this
Warrant, the Company will execute and deliver in the Warrant Holder's name, in
exchange and substitution for the Warrant so mutilated, destroyed, lost or
stolen, a new Warrant of like tenor substantially in the form hereof with
appropriate insertions and variations.
10. SECURITIES LAWS REPRESENTATIONS AND WARRANTIES; TRANSFER TO
-----------------------------------------------------------
COMPLY WITH SECURITIES LAWS.
- ---------------------------
(a) The Warrant Holder, by acceptance of this Warrant, represents
and warrants to the Company that this Warrant is being, and any Warrant Shares
acquired on exercise of this Warrant will be, acquired by the Warrant Holder for
its own account and not with a view to resale or distribution within the meaning
of the Securities Act of 1933, as amended (the "Securities Act"), and the
Warrant Holder will not distribute this Warrant or any Warrant Shares in
violation of the Securities Act or any applicable state or foreign law;
provided, however, that the disposition of this Warrant and the Warrant Shares
- -------- -------
shall at all times remain in the Warrant Holder's control.
(b) The Warrant Holder, by acceptance of this Warrant, (i)
acknowledges that this Warrant and the Warrant Shares are not registered under
the Securities Act or any state securities laws and that this Warrant and any
Warrant Shares to be issued to it upon the exercise of this Warrant must be held
indefinitely by it unless they are subsequently registered under the Securities
Act and all applicable state securities laws or an exemption from registration
is available, (ii) is aware that any routine sales under Rule 144, promulgated
under the Securities Act, of this Warrant and the Warrant Shares may be made
only in limited amounts and
6
<PAGE>
in accordance with the terms and conditions of that Rule and that in such cases
where the Rule is not applicable, compliance with some other registration
exemption will be required, (iii) is aware that Rule 144 is not as of the date
hereof available for use by the Warrant Holder for resale of such Warrant and
Warrant Shares, and (iv) is aware that the Company is not obligated to register
under the Securities Act any sale, transfer or other disposition of this Warrant
or the Warrant Shares.
(c) The Warrant Holder, by acceptance of this Warrant, confirms
that the Company has made available to it the opportunity to ask questions of
and receive answers from the Company's officers and directors concerning the
terms and conditions of the offering and the business and financial condition of
the Company, and to acquire, and the Warrant Holder has received to its
satisfaction, such additional information about the business and financial
condition of the Company and the terms and conditions of the offering as it has
requested.
(d) The Warrant Holder, by acceptance of this Warrant, represents
that (i) it is an institutional "accredited investor" as such term is defined in
Rule 501 promulgated under the Securities Act, (ii) it was not formed for the
purpose of purchasing this Warrant, (iii) its financial situation is such that
it can afford to bear the economic risk of holding this Warrant and the Warrant
Shares for an indefinite period of time and suffer complete loss of its
investment in this Warrant and the Warrant Shares, and (iv) its knowledge and
experience in financial and business matters are such that it is capable of
evaluating the merits and risks of its purchase of this Warrant and the Warrant
Shares as contemplated by this Agreement.
(e) The certificate representing any Warrant Shares acquired upon
exercise of this Warrant, and any Ordinary Shares or other securities issued in
respect of such Warrant Shares upon any stock split, stock dividend,
recapitalization, merger, consolidation or similar event, shall be stamped or
otherwise imprinted with the following legend (unless such a legend is no longer
required under the Securities Act):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAW
AND MAY NOT BE SOLD EXCEPT IN A TRANSACTION WHICH IS, (A) IN THE OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY, EXEMPT UNDER SUCH ACT OR (B) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT. IN ADDITION, THE SHARES
REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER AS SET
FORTH IN A CLASS B WARRANT OF THE COMPANY DATED _____, 1998."
(f) The Company shall not be required to register the transfer of
this Warrant or any Warrant Shares on the books of the Company unless the
Company shall have been provided with an opinion of counsel satisfactory to it
or no-action letters from the Securities and Exchange Commission and the
appropriate state regulatory agencies prior to such transfer to the effect that
registration under the Securities Act and any applicable state securities law is
not required in connection with the transaction resulting in such transfer;
provided, however, that no such opinion of counsel or no-action letter shall be
necessary in order to effectuate a transfer in
7
<PAGE>
accordance with the provisions of Rule 144(k) promulgated under the Securities
Act or pursuant to an effective registration statement under the Securities Act.
Each Warrant or certificate for Warrant Shares issued upon any transfer as above
provided shall bear the restrictive legend set forth in Subsection 10(e) above,
except that such restrictive legend shall not be required if the opinion of
counsel satisfactory to the Company or no-action letters referred to above are
to the further effect that such legend is not required in order to establish
compliance with the provisions of the Securities Act and any applicable state
securities law, or if the transfer is made in accordance with the provisions of
Rule 144(k) promulgated under the Securities Act or pursuant to an effective
registration statement under the Securities Act. The cost of obtaining any legal
opinion or no-action letter required under this Section shall be borne by the
Warrant Holder.
11. SURVIVAL. The provisions of Section 10 shall survive any
--------
expiration, cancellation or exercise of this Warrant.
12. HEADINGS. The descriptive headings of the several sections of
--------
this Warrant are inserted for convenience only and do not constitute a part of
this Warrant.
8
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
by its duly authorized officer under its corporate seal, attested by its duly
authorized officer, on the date of this Warrant.
SCOTTISH LIFE HOLDINGS, LTD.
By: _________________________________
Name:____________________________
Title:_____________________________
ACCEPTED, ACKNOWLEDGED
AND AGREED
By: ________________________________
Name:___________________________
9
<PAGE>
Annex A
PURCHASE AGREEMENT
Date: __________________________
TO:
The undersigned, pursuant to the provisions set forth in the attached
Class B Warrant, hereby agrees to purchase _________________ Ordinary Shares
covered by such Class B Warrant, and makes payment herewith in full therefor at
the price per share provided by this Class B Warrant.
Signature: _______________________
Address: _______________________
* * * *
<PAGE>
ASSIGNMENT
For Value Received, ________________________________ hereby sells,
assigns and transfers all of the rights of the undersigned under the Class B
Warrant with respect to __________________ of the number of Ordinary Shares
covered by such Class B Warrant, to:
NAME OF ASSIGNEE ADDRESS NO. OF SHARES
Dated: Signature: _______________________
Address: _______________________
<PAGE>
EXHIBIT 4.4
SCOTTISH LIFE HOLDINGS, LTD.
Ugland House, 113 South Church Street
George Town, Grand Cayman
Cayman Islands, British West Indies
______, 1998
To the Investor executing
this Agreement on the
signature page hereof
Re: Securities Purchase Agreement
-----------------------------
Ladies and Gentlemen:
Scottish Life Holdings, Ltd., a Cayman Islands company (the "Company"),
hereby agrees with you (the "Investor") as follows:
Section 1. Authorization of Securities. The Company has duly authorized
---------------------------
the issuance, sale and delivery of Class A Warrants (the "Warrants") to purchase
its ordinary shares, par value $.01 per share (the "Ordinary Shares").
Section 2. Purchase and Sale of Securities.
-------------------------------
(a) Issuance of Securities. Subject to the terms and conditions set
----------------------
forth in this Agreement and in reliance upon the Investor's representations set
forth below, on the Closing Date (as defined below) the Company shall sell to
the Investor, and the Investor shall purchase from the Company, the number of
Warrants at the aggregate cash purchase price (the "Purchase Price") set forth
opposite its name on Schedule 1. Such sale and purchase shall be effected on
the Closing Date by the Company executing and delivering to the Investor, duly
registered in its name (or that of its nominee), a duly executed warrant
certificate in the form attached as Exhibit A hereto evidencing the Warrants
being purchased by it (the "Warrant Certificate"), against delivery by the
Investor to the Company on the Closing Date. The Company is entering into
securities purchase agreements (the "Other Agreements") substantially in the
form of this Agreement with the other investors listed on Schedule 1 ("Other
Investors" and, collectively with the Investor, the "Investors"). The Company's
agreements with each of the Investors are separate agreements, and the sales to
each of the Investors are separate sales.
(b) Closing of Issuance. The closing of such sale and purchase (the
-------------------
"Closing") shall take place at 10:00 A.M., New York City time, on June 17, 1998
(the "Closing Date").
Section 3. Representations and Warranties of the Company. The Company
---------------------------------------------
represents and warrants to the Investor that:
(a) Corporate Organization. The Company is a corporation duly
----------------------
organized, validly existing and in good standing under the laws of the Cayman
Islands.
<PAGE>
(b) Corporate Proceedings, etc. The Company has duly authorized the
--------------------------
execution, delivery, and performance of this Agreement and the issuance and sale
of the Warrants. No other corporate action (including shareholder approval) is
necessary to authorize such execution, delivery and performance, and upon such
execution and delivery, this Agreement shall constitute the valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except that such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights and general principles of equity.
Section 4. Representations and Warranties of the Investor. The Investor
----------------------------------------------
represents and warrants to the Company as follows:
(a) It is acquiring the Warrants (and will acquire the Ordinary Shares
issuable upon exercise of the Warrants) for its own account for investment and
not with a view towards the distribution thereof, nor with any present intention
of distributing the Warrants (or the Ordinary Shares acquired upon exercise of
the Warrants), but without prejudice to the Investor's right at all times to
sell or otherwise dispose of all or any part of such securities under a
registration under the Securities Act or under an exemption from said
registration available under the Securities Act to the extent permitted by the
Warrant Certificate.
(b) It is an "accredited investor" within the meaning of Rule
501(a)(3) under the Securities Act.
(c) It has such knowledge and experience in financial and business
maters that it is capable of evaluating the merits and risks of its investment
in the Company as contemplated by this Agreement, and is able to bear the
economic risk of such investment for an indefinite period of time. It has been
furnished access to such information and documents as it has requested and has
been afforded an opportunity to ask questions of and receive answers from
representatives of the Company concerning the terms and conditions of this
Agreement and the purchase of the Warrants contemplated hereby.
(d) It has all requisite power and authority to execute this Agreement
and the Registration Rights Agreement, to perform its obligations hereunder and
thereunder and to acquire and hold the Warrants.
Section 5. Additional Covenants of the Parties.
-----------------------------------
(a) Resale of Securities.
--------------------
(i) The Investor covenants that it will not sell or otherwise
transfer the Warrants (or any Ordinary Shares acquired upon exercise of the
Warrants) except pursuant to an effective registration under the Securities
Act or in a transaction which, qualifies as an exempt transaction under the
Securities Act and the rules and regulations promulgated thereunder and
subject to the provisions of the Warrant Certificate.
<PAGE>
(ii) The certificates evidencing Warrants and Ordinary Shares
issuable upon exercise of the Warrants will bear the following legend
reflecting the foregoing restrictions on the transfer of such securities:
"THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE TRANSFERRED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION UNDER THE ACT OR IN A
TRANSACTION WHICH QUALIFIES AS AN EXEMPT TRANSACTION UNDER THE ACT AND THE
RULES AND REGULATIONS PROMULGATED THEREUNDER."
(b) Further Assurance. Each of the parties shall execute such
-----------------
documents and other papers and take such further actions as may be reasonably
required or desirable to carry out the provisions hereof and the transactions
contemplated hereby. Each such party shall use its reasonable efforts to
fulfill or obtain the fulfillment of the conditions to the Closing as promptly
as practicable.
Section 6. Investor's Closing Conditions. The obligation of the Investor
-----------------------------
to purchase and pay for the Warrants on the Closing Date, as provided in Section
2 hereof, shall be subject to the performance by the Company of its agreements
theretofore to be performed hereunder and to the satisfaction, prior thereto or
concurrently therewith, of the following further conditions:
(a) Representations and Warranties. The representations and
------------------------------
warranties of the Company contained in this Agreement shall be true in all
material respects on and as of the Closing Date as though such warranties and
representations were made at and as of such date, except as otherwise affected
by the transactions contemplated hereby.
(b) Compliance with Agreement. The Company shall have performed and
-------------------------
complied in all material respects with all agreements, covenants and conditions
contained in this Agreement which are required to be performed or complied with
by the Company prior to or on the Closing Date.
(c) Delivery of Warrants. The Company shall have delivered to the
--------------------
Investor the certificates evidencing the Warrants being purchased by it
hereunder as provided in Section 2(a).
(d) Registration Rights Agreement. The Company shall have executed
-----------------------------
and delivered to the Investor the Registration Rights Agreement, the form of
which is attached as Exhibit B hereto (the "Registrations Rights Agreement").
Section 7. Company Closing Conditions. The obligation of the Company to
--------------------------
issue and deliver the Warrants on the Closing Date, as provided in Section 2
hereof, shall be subject to the performance by the Investor of its agreements
theretofore to be performed hereunder and to the satisfaction, prior thereto or
concurrently therewith, of the following further conditions:
(a) Representations and Warranties. The representations and
------------------------------
warranties of the Investor contained in this Agreement shall be true on and as
of the Closing Date as though such
3
<PAGE>
warranties and representations were made at and as of such date, except as
otherwise affected by the transactions contemplated hereby.
(b) Compliance with Agreement. The Investor shall have performed and
-------------------------
complied with all agreements, covenants and conditions contained in this
Agreement which are required to be performed or complied with by it prior to or
on the Closing Date.
Section 8. Limitation on Disposition. The Investor will not, without the
-------------------------
consent of the Company, sell, transfer or otherwise dispose of the Warrants for
a period of one year after the Closing Date except to one or more of its
Affiliates, provided that any such affiliate shall agree to be bound by the
provisions of this Section 8. As used herein, "Affiliate" means any person or
entity directly or indirectly controlling, controlled by or under common control
with, the Investor.
Section 9. Miscellaneous.
-------------
(a) Section Headings. The headings of the sections and subsections of
----------------
this Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof.
(b) Notices.
-------
(i) All communications under this Agreement shall be in writing
and shall be delivered by hand or facsimile or mailed by overnight courier
or by registered mail or certified mail, postage prepaid:
If to the Investor, at: the address specified in Schedule 2.1
(or at such other address as the Investor may
have furnished the Company in writing).
If to the Company, at: Ugland House, 113 South Church Street
George Town, Grand Cayman
Cayman Islands, British West Indies
Attention: Chief Executive Officer
(or at such other address as it may have
furnished the Investor in writing).
(ii) Any notice so addressed shall be deemed to be given: if
delivered by hand or facsimile, on the date of such delivery; if mailed by
courier, on the first business day following the date of such mailing; and
if mailed by registered or certified mail, on the third business day after
the date of such mailing.
(b) Termination and Survival. Unless the Closing has occurred prior
------------------------
thereto, this Agreement and all the rights of the parties hereto, shall
terminate on December 31, 1998 (unless such date is extended by mutual written
consent).
(c) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the successors and permitted assigns of each of the
parties.
4
<PAGE>
(d) Entire Agreement; Amendment and Waiver. This Agreement and the
--------------------------------------
agreements attached as Exhibits hereto constitute the entire understanding of
the parties hereto and supersede all prior agreements or understandings with
respect to the subject matter hereof among such parties. This Agreement may be
amended, and the observance of any term of this Agreement may be waived, with
(and only with) the written consent of the Company and the Investor.
(e) Severability. In the event that any part or parts of this
------------
Agreement shall be held illegal or unenforceable by any court or administrative
body of competent jurisdiction, such determination shall not affect the
remaining provisions of this Agreement which shall remain in full force and
effect.
(f) Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the Cayman Islands.
(g) Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original and all of which
together shall be considered one of the same agreement.
If you are in agreement with the foregoing, please so indicate by executing
the acceptance set forth below and return a copy of this Agreement to the
Company, whereupon this Agreement shall be a binding agreement between us.
Very truly yours,
SCOTTISH LIFE HOLDINGS, LTD.
BY: ________________________________
Name:
Title:
The foregoing Agreement is hereby accepted:
By:_________________________________
Name:
Title:
5
<PAGE>
SCHEDULE 1
----------
Investors Number of Ordinary Shares Purchase Price
--------- ------------------------- --------------
Michael C. French 750,000 $48,387.10
Michelle L. Boucher 50,000 $ 3,225.81
Audubon Assets Limited 500,000 $32,258.06
Soulieana Limited 250,000 $16,129.03
6
<PAGE>
EXHIBIT 4.5
WARRANT PURCHASE AGREEMENT
DATED AS OF ________, 1998
BY AND BETWEEN
SCOTTISH LIFE HOLDINGS, LTD.
AND
[PURCHASER]
__________________________________
CLASS B WARRANTS
__________________________________
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I PURCHASE AND SALE OF SHARES......................................................1
Section 1.1 Purchase and Sale......................................................1
Section 1.2 Closing................................................................1
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY....................................2
Section 2.1 Corporate Organization.................................................2
Section 2.2 Subsidiaries...........................................................2
Section 2.3 Authorization..........................................................2
Section 2.4 Capitalization.........................................................2
Section 2.5 Financial Statements...................................................3
Section 2.6 Proceedings............................................................3
Section 2.7 Consents...............................................................3
Section 2.8 Absence of Certain Changes.............................................4
Section 2.09 Certain Events.........................................................4
Section 2.10 Payments by Subsidiary.................................................4
Section 2.11 Investment Company Act; Exchange Act...................................4
Section 2.12 Certain Certificates...................................................4
Section 2.13 Accounting.............................................................5
Section 2.14 No Violations..........................................................5
Section 2.15 Share Certificates.....................................................5
Section 2.16 Exchange Controls......................................................5
Section 2.17 Certain Insurance Regulations..........................................6
Section 2.18 Authorizations to Conduct Business.....................................6
Section 2.19 Certain U.S. Requirements..............................................6
Section 2.20 Certain Relationships..................................................6
Section 2.21 Stamp Tax..............................................................6
Section 2.22 Change in Insurance Law................................................7
Section 2.23 Securities Laws........................................................7
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE INVESTOR..................................7
Section 3.1 Representations and Warranties.........................................7
ARTICLE IV COVENANTS OF THE COMPANY AND THE INVESTOR........................................9
Section 4.1 Insurance..............................................................9
Section 4.2 Conduct of Business....................................................9
Section 4.3 Payment of Taxes, Compliance with Laws, Etc............................9
Section 4.4 Proceeds...............................................................9
Section 4.5 Registration Rights....................................................9
ARTICLE V CLOSING DELIVERIES...............................................................10
Section 5.1 Registration Rights Agreement.........................................10
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
Section 5.2 Purchase Price........................................................10
Section 5.3 Warrant Certificates..................................................10
ARTICLE VI POST-CLOSING DELIVERIES..........................................................10
Section 6.1 Secretary's Certificate...............................................10
Section 6.2 Opinion of Counsel to the Company.....................................10
ARTICLE VII MISCELLANEOUS...................................................................11
Section 7.1 Amendment, Waivers and Consents.......................................11
Section 7.2 Survival of Representations; Warranties and Covenants;
Assignability of Rights............................................11
Section 7.3 Applicable Law........................................................11
Section 7.4 Consent to Jurisdiction and Service of Process........................11
Section 7.5 Section Headings......................................................12
Section 7.6 Counterparts..........................................................12
Section 7.7 Notices and Demands...................................................12
Section 7.8 Severability..........................................................13
Section 7.9 Integration...........................................................13
Section 7.10 Publicity.............................................................13
Section 7.11 Restrictions on Transfer..............................................13
</TABLE>
SCHEDULES
EXHIBIT A Form of Class B Warrant
EXHIBIT B Form of Registrations Rights Agreement
EXHIBIT C Form of Legal Opinion
EXHIBIT D Form of Legal Opinion
ii
<PAGE>
WARRANT PURCHASE AGREEMENT (this "Agreement"), dated as of ________,
---------
1998, by and between SCOTTISH LIFE HOLDINGS, LTD., a corporation organized under
the laws of the Cayman Islands, British West Indies (the "Company"), and
-------
[PURCHASER], a ___________ (the "Investor").
--------
RECITALS
--------
Upon the terms and subject to the conditions of this Agreement, the
Company is issuing and selling to the Investor the Class B Warrant (the "Class B
-------
Warrant"), in the form of Exhibit A hereto, to purchase ________ of the
- -------
Company's Ordinary Shares, par value $0.01 per shares (the "Ordinary Shares")
such Class B Warrant exercisable to purchase _______ Ordinary Shares at a per
share purchase price equal to the sales price to the public of an Ordinary Share
in the Company's initial public offering of its Ordinary Shares, subject to
adjustment under certain circumstances as provided in the Class B Warrants.
In consideration of the mutual covenants and agreements set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the parties agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
---------------------------
Section 1.1 Purchase and Sale. Subject to the terms and conditions
-----------------
set forth herein and in reliance on the representations, warranties and
covenants set forth herein, the Company is contemporaneously herewith issuing
and selling to the Investor, and the Investor is contemporaneously herewith
purchasing from the Company, a Class B Warrant for the aggregate purchase price
of $_______ payment of which is being made contemporaneously herewith by the
Investor to the Company by certified check or wire transfer of immediately
available funds to an account designated by the Company (the "Investment").
----------
Section 1.2 Closing. The purchase and sale of the shares of Class B
-------
Warrants constituting the Investment are taking place at a closing (the
"Closing") at the offices of ______________, at ____ on the date hereof or such
-------
other date and time as may be agreed by the Company and the Investor. The date
and time of Closing are referred to herein as the "Closing Date".
------------
1
<PAGE>
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
---------------------------------------------
The Company represents and warrants to the Investor as follows:
Section 2.1 Corporate Organization. Each of the Company and Scottish
----------------------
Life Assurance Company (Cayman) Ltd., a Cayman Islands, British West Indies
corporation (the "Subsidiary"), has been duly organized and is validly existing
as a corporation in good standing under the laws of the Cayman Islands, British
West Indies and is duly qualified to transact business as a foreign corporation
and is in good standing under the laws of all other jurisdictions where the
ownership or leasing of its properties or the conduct of its business requires
such qualification, except where the failure to be so qualified does not amount
to a material liability or disability to the Company and its Subsidiary, taken
as a whole.
Section 2.2 Subsidiaries. The Company has no subsidiary other than
------------
the Subsidiary. The issued shares of capital stock of the Subsidiary have been
duly authorized and validly issued, are fully paid and nonassessable and are
owned beneficially by the Company free and clear of any security interests,
liens, encumbrances, equities or claims.
Section 2.3 Authorization. The Company has all requisite corporate
-------------
power and authority to execute and deliver this Agreement, the Registration
Rights Agreement in the form of Exhibit B hereto of even date herewith, between
the Company and the Investor (the "Registration Rights Agreement") and the Class
-----------------------------
B Warrant, and to carry out its obligations hereunder and thereunder. The
execution and delivery of this Agreement, the Registration Rights Agreement and
the Class B Warrant, and the performance by the Company of its obligations
hereunder and thereunder have been duly authorized by the Company, and no other
corporate proceeding therefor on the part of the Company or its stockholders is
required. This Agreement, the Registration Rights Agreement and the Class B
Warrant have been duly executed and delivered by the Company and are the valid
and binding obligations of the Company, enforceable against it in accordance
with their terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws
relating to the enforcement of creditors' rights and remedies or other equitable
principles of general application. Each of the Company and its Subsidiary has
full corporate power to own or lease its properties and to conduct its business
as described in the draft S-1 Registration Statement of the Company dated the
date hereof (the "Information Materials").
Section 2.4 Capitalization.
--------------
(a) The Company has an authorized, issued and outstanding
capitalization as set forth in the Information Materials. All of the issued
shares of capital stock of the Company have been duly authorized and validly
issued and are fully paid and nonassessable. The Class B Warrant has been duly
authorized and, after payment therefor in accordance herewith, will be validly
issued, fully paid and nonassessable. No holders of outstanding shares of
capital stock of the Company are entitled as such to any preemptive or other
rights to subscribe for any Ordinary Shares or Class B Warrants (including any
Ordinary Shares issuable upon exercise of the Class B
2
<PAGE>
Warrants) and the Ordinary Shares initially issuable upon conversion of the
Class B Warrants have been duly and validly authorized and reserved for issuance
upon such conversion and, when issued upon conversion, will be validly issued,
fully paid and nonassessable.
(b) The capital stock of the Company conforms to the description
thereof contained in the Information Materials.
(c) Except as disclosed in the Information Materials, there are no
outstanding (A) securities or obligations of the Company or its Subsidiary
convertible into or exchangeable for any capital stock of the Company or its
Subsidiary, (B) warrants, rights or options to subscribe for or purchase from
the Company or its Subsidiary any such capital stock or any such convertible or
exchangeable securities or obligations, or (C) obligations of the Company or its
Subsidiary to issue any shares of capital stock, any such convertible or
exchangeable securities or obligations, or any such warrants, rights or options.
Section 2.5 Financial Statements. The consolidated balance sheet of
--------------------
the Company and its Subsidiary included in the Information Materials fairly
present the financial position of the Company and its Subsidiary as of the date
therein specified. Such balance sheet has been prepared in accordance with
United States generally accepted accounting principles consistently applied
throughout the periods involved (except as otherwise noted therein).
Section 2.6 Proceedings. Except as set forth in the Information
-----------
Materials, there are no legal or governmental proceedings pending to which the
Company or its Subsidiary is a party or to which the property of the Company or
its Subsidiary is subject, and no such proceedings have been threatened against
the Company or its Subsidiary or with respect to any of their respective
properties; and except as set forth in the Information Materials, neither the
Company nor the Subsidiary is party to any material contract or other document.
Section 2.7 Consents. The issuance, offering and sale of the Class B
--------
Warrant to the Investor by the Company pursuant to this Agreement and the
issuance of Ordinary Shares issuable upon the exercise of the Class B Warrants
and the compliance by the Company with the other provisions of this Agreement
and the Class B Warrants and the consummation of the other transactions herein
and therein contemplated do not (i) require the consent, approval,
authorization, registration or qualification of or with any governmental
authority, or (ii) conflict with or result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, lease or other agreement or instrument to which the
Company or its Subsidiary is a party or by which the Company or its Subsidiary
or any of their respective properties are bound, or the Memorandum of
Association or Articles of Association of the Company or its Subsidiary, or any
statute or any judgment, decree, order, rule or regulation of any court or other
governmental authority or any arbitrator applicable to the Company or its
Subsidiary.
Section 2.8 Absence of Certain Changes. Subsequent to the respective
--------------------------
dates as of which information is given in the Information Materials, neither the
Company nor its Subsidiary has sustained any material loss or interference with
their respective businesses or properties from fire, flood, hurricane, accident
or other calamity, whether or not covered by
3
<PAGE>
insurance, or from any labor dispute or any legal or governmental proceeding and
there has not been any material adverse change, or any development involving a
prospective material adverse change, in the condition (financial or otherwise),
management, business prospects, net worth, or results of the operations of the
Company or its Subsidiary, except in each case as described in or contemplated
by the Information Materials.
Section 2.09 Certain Events. Subsequent to the respective dates as
--------------
of which information is given in the Information Materials, (1) the Company and
its Subsidiary have not incurred any material liability or obligation, direct or
contingent, nor entered into any material transaction not in the ordinary course
of business; (2) the Company has not purchased any of its outstanding capital
stock, nor declared, paid or otherwise made any dividend or distribution of any
kind on its capital stock; and (3) there has not been any material change in the
capital stock, short-term debt or long-term debt of the Company and its
Subsidiary, except in each case as described in or contemplated by the
Information Materials.
Section 2.10 Payments by Subsidiary. The Company's Subsidiary is not
----------------------
currently prohibited, directly or indirectly, from paying any dividends to the
Company, from making any other distribution on its capital stock, from repaying
to the Company any loans or advances to it from the Company or from transferring
any of its property or assets to the Company, except as described in or
contemplated by the Information Materials.
Section 2.11 Investment Company Act; Exchange Act. The Company and
------------------------------------
its Subsidiary will conduct their operations in a manner that will not subject
either of them to registration as an investment company under the Investment
Company Act of 1940, as amended (the "1940 Act"), an investment adviser under
the Investment Advisers Act of 1940, as amended (the "Advisers Act"), or a
broker-dealer under the Securities Exchange Act of 1934, as amended (the "1934
Act"), and the transaction contemplated hereby will not cause the Company or its
Subsidiary to become an investment company subject to registration under the
1940 Act, an investment adviser subject to registration under the Advisers Act
or a broker-dealer subject to registration under the 1934 Act. The Company and
its Subsidiary will conduct their operations in accordance with the requirements
of Rule 3a-6 under the 1940 Act.
Section 2.12 Certain Certificates. Each certificate with respect to
--------------------
this Agreement or the Class B Warrant signed by any officer of the Company and
delivered to the Investors or its counsel shall be deemed to be a representation
and warranty by the Company as to the matters covered thereby.
Section 2.13 Accounting. The Company and its Subsidiary maintain a
----------
system of internal accounting controls sufficient to provide reasonable
assurance that (1) transactions are executed in accordance with management's
general or specific authorizations; (2) transactions are recorded as necessary
to permit preparation of financial statements in conformity with United States
generally accepted accounting principles and to maintain asset accountability;
(3) access to assets is permitted only in accordance with management's general
or specific authorization; and (4) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
4
<PAGE>
Section 2.14 No Violations. Neither the Company nor the Subsidiary
-------------
is (i) in violation of its Memorandum of Association or Articles of Association
or other organizational documents, (ii) in violation of any law, ordinance,
administrative or governmental rule or regulation applicable to it or any of its
properties, except where any such violation or violations in the aggregate could
not reasonably be expected to have a material adverse effect on the condition
(financial or otherwise), management, business prospects, net worth or results
of the operations of the Company and its Subsidiary, taken as a whole, (iii) in
violation of any judgment, injunction, order or decree of any court,
governmental agency or body (including, without limitation, any insurance
regulatory agency or body) or arbitrator having jurisdiction over it, except
where any such violation or violations in the aggregate could not reasonably be
expected to have a material adverse effect on the condition (financial or
otherwise), management, business prospects, net worth or results of the
operations of the Company and its Subsidiary, taken as a whole, and (iv) no
default exists, and no event has occurred which, with notice or lapse of time or
both, would constitute a default in the due performance and observance of any
term, covenant or condition of any indenture, mortgage, deed of trust, lease or
other agreement or instrument to which the Company or its Subsidiary is a party
or by which the Company or its Subsidiary or any of their respective properties
is bound or may be affected, except where any such default or event or defaults
or events in the aggregate could not reasonably be expected to have a material
adverse effect on the condition (financial or otherwise), management, business
prospects, net worth or results of the operations of the Company and its
Subsidiary, taken as a whole.
Section 2.15 Share Certificates. The forms of certificate for the
------------------
Ordinary Shares and Class B Warrants conform to the requirements of the
Companies Law (1995 Revision) of the Cayman Islands, British West Indies.
Section 2.16 Exchange Controls. No currency exchange control laws or
-----------------
withholding taxes of the Cayman Islands, British West Indies or elsewhere apply
to the payment of dividends (i) on the Ordinary Shares by the Company or (ii) by
the Subsidiary to the Company, except in each case as described in or
contemplated by the Information Materials.
Section 2.17 Certain Insurance Regulations. The Subsidiary has made
-----------------------------
application to be duly licensed by the Governor-in-Council as an unrestricted
Class "B" insurer under the Insurance Law (1998 Revision) of the Cayman Islands,
British West Indies (the "Insurance Law") and is in compliance with the
requirements of the Insurance Law and any applicable rules and regulations
thereunder and will file all statutory financial returns, reports, documents or
other information required to be filed thereunder, except where the failure to
comply or to file would not have a material adverse effect on the condition
(financial or otherwise), management, business prospects, net worth, or results
of the operations of the Company and its Subsidiary, taken as a whole. The
Company is a holding company and is not subject to Cayman Islands insurance
regulations. The Company and its Subsidiary are in compliance with all other
insurance laws and regulations of the jurisdictions that apply to them,
including laws that relate to companies that control insurance companies, except
where the failure to comply would not have a material adverse effect on the
condition (financial or otherwise), management, business prospects, net worth,
or results of the operations of the
5
<PAGE>
Company and its Subsidiary, taken as a whole. Neither the Company nor its
Subsidiary has received any notification from any insurance authority,
commission or other insurance regulatory body in the Cayman Islands or elsewhere
to the effect that the Subsidiary is not in compliance with any insurance law or
regulation.
Section 2.18 Authorizations to Conduct Business. Each of the Company
----------------------------------
and the Subsidiary possess all certificates, authorizations and permits issued
by the appropriate Cayman Islands, United States federal, state or foreign
regulatory authorities necessary to conduct their respective businesses, and
neither the Company nor the Subsidiary has received any notice of proceedings
relating to, or knows of any event that could reasonably be expected to result
in, the revocation or modification of any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a material adverse change in the
condition (financial or otherwise), management, business prospects, net worth or
results of operations of the Company and the Subsidiary, except as described in
or contemplated by the Information Materials.
Section 2.19 Certain U.S. Requirements. Neither the Company nor its
-------------------------
Subsidiary is required to be licensed or admitted as an insurer or an insurance
holding company, as applicable, or to otherwise comply with the insurance laws
and regulations of any jurisdictions within the United States in order to
conduct their respective businesses as described in the Information Materials.
Section 2.20 Certain Relationships. All material relationships,
---------------------
direct or indirect, existing between or among the Company or its Subsidiary on
the one hand, and the directors, officers, promoters, affiliates or shareholders
of the Company or its Subsidiary on the other hand, have been described in the
Information Materials.
Section 2.21 Stamp Tax. The Investor will not be subject to any
---------
stamp duty, excise or similar tax imposed in the Cayman Islands, British West
Indies in connection with the offering, sale or purchase of the Class B Warrants
or the exercise thereunder for Ordinary Shares.
Section 2.22 Change in Insurance Law. To the knowledge of the
-----------------------
Company and its Subsidiary, no change in any insurance law or regulation is
pending that could have, individually or in the aggregate, a material adverse
effect on the condition (financial or otherwise), business prospects, net worth
or results of the operations of the Company and its Subsidiary, except as
described in or contemplated by the Information Materials.
Section 2.23 Securities Laws. (a) It is not necessary in connection
---------------
with the offer, sale and issuance of the Class B Warrant in the manner
contemplated by this Agreement, or the issuance of the Ordinary Shares upon
exercise of the Class B Warrant in the manner contemplated thereby, to register
the Class B Warrant or the Ordinary Shares under the Securities Act of 1933, as
amended (the "1933 Act"), or any applicable state securities or blue sky laws.
(b) Neither the Company nor any affiliate (as defined in Rule 501(b)
of Regulation D ("Regulation D") under the 1933 Act) of the Company has directly
or through any agent (i) sold, offered for sale, solicited offers to buy or
otherwise negotiated in respect of, any
6
<PAGE>
security (as defined in the 1933 Act) which is or will be integrated with the
sale of the Class B Warrant or the underlying Ordinary Shares in a manner that
would require the registration of the Class B Warrant under the 1933 Act or (ii)
engaged in any form of general solicitation or general advertising (within the
meaning of Regulation D) in connection with the offering of the Class B Warrant.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
----------------------------------------------
Section 3.1 Representations and Warranties. The Investor represents
------------------------------
that:
(a) It is a ____________ duly formed, validly existing and in good
standing under the laws of __________. The Investor has all requisite power and
authority to own, operate and lease its properties and to conduct its business
as currently conducted. The Investor is duly qualified or licensed to do
business and is in good standing in each jurisdiction in which its ownership or
leasing of property or the conduct of its business requires such licensing or
qualification, except to the extent that the failure to be so qualified or
licensed would not have a material adverse effect on it.
(b) It has all requisite power and authority to execute and deliver
this Agreement and to carry out its obligations hereunder. The execution and
delivery of this Agreement and the performance by the Investor of its
obligations hereunder, have been duly authorized by the Investor, and no other
proceeding therefor on the part of the Investor or any of its partners is
required. This Agreement has been duly executed and delivered by the Investor
and is the valid and binding obligation of the Investor, enforceable against it
in accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar laws relating to the enforcement of creditors' rights and remedies or by
other equitable principles of general application.
(c) It is purchasing the Class B Warrant (including the Ordinary
Shares issuable upon exercise thereof) for the Investor's own account for
investment only and not with a view to or for sale in connection with the
distribution thereof, except for sales contemplated by the Registration Rights
Agreement, and provided that the disposition of the Investor's Class B Warrant
(and Ordinary Shares obtainable upon exercise thereof) shall at all times remain
within its control.
(d) It has such knowledge and experience in financial and business
matters that the Investor is capable of evaluating the merits and risks of the
investment contemplated by this Agreement and making an informed investment
decision with respect thereto.
(e) It is an institutional "accredited investor" as such term is
defined in Rule 501 under the Securities Act.
7
<PAGE>
(f) It has had the opportunity to ask questions and receive answers
concerning the terms and conditions of the offering of Class B Warrant purchased
hereunder, as well as the opportunity to obtain additional information necessary
to verify the accuracy of information furnished in connection with such offering
that the Company possesses or can acquire without unreasonable effort or
expense; provided, however, the Investor has relied upon the representations and
warranties of the Company set forth in this Agreement, and this Section 3.1(f)
shall not be interpreted to limit that reliance.
(g) It understands that the Class B Warrant and the Ordinary Shares
issuable upon conversion of the Series B Preferred Stock have not been
registered under the 1933 Act or any state securities laws, and may not be
transferred unless subsequently registered thereunder or pursuant to an
exemption from registration, and that a legend indicating such restrictions will
be placed on the certificates representing such Class B Warrants and Ordinary
Shares.
(h) There are no claims for investment banking fees, brokerage
commissions, finder's fees or similar compensation (other than professional fees
to lawyers, accountants and other consultants) in connection with the
transactions contemplated by this Agreement based on any arrangement or
agreement made by or on behalf of the Investor.
ARTICLE IV
COVENANTS OF THE COMPANY AND THE INVESTOR
-----------------------------------------
So long as the Investors shall be a holder of Class B Warrants or
Ordinary Shares obtained upon exercise thereof, the Company shall comply with
the following covenants:
Section 4.1 Insurance. The Company and its Subsidiary shall keep its
---------
insurable properties insured, upon reasonable business terms, by financially
sound and reputable insurers against liability and the perils of casualty, fire
and extended coverage in amounts of coverage at least equal to those customarily
maintained by companies of similar size in the same or similar business as the
Company. The Company and its Subsidiary shall also maintain with such insurers
insurance against other hazards and risks and liability to persons and property
to the extent and in the manner customary for companies of similar size engaged
in the same or similar business.
Section 4.2 Conduct of Business. The Company and its Subsidiary
-------------------
shall keep in full force and effect its corporate existence and use commercially
reasonable efforts to keep in full force and effect all intellectual property
rights and licenses material to its business. The Company and its Subsidiary
shall maintain all properties used or useful in the conduct of its business in
good repair, working order and condition, ordinary wear and tear excepted, as
necessary to permit such business to be properly and advantageously conducted.
Section 4.3 Payment of Taxes, Compliance with Laws, Etc. The Company
-------------------------------------------
and its Subsidiary shall pay and discharge all lawful taxes, assessments and
governmental charges or levies imposed upon it or its income or property before
the occurrence of any default, as well as
8
<PAGE>
all lawful claims for labor, materials and supplies which, if not paid when due,
might become a lien or charge upon its property or any part thereof, provided,
however, that the Company and its Subsidiary shall not be required to pay and
discharge any such tax, assessment, charge, levy or claim so long as the
validity thereof is being contested by the Company and its Subsidiary in good
faith by appropriate proceedings and an adequate reserve therefor has been
established on their books. The Company and its Subsidiary shall comply with all
applicable laws and regulations in the conduct of its business, including,
without limitation, all applicable federal and state securities laws in
connection with the issuance of any securities.
Section 4.4 Proceeds. The proceeds from the issuance and sale to the
--------
Investor of the Class B Warrants will be used for the Company's general
corporate purposes.
Section 4.5 Registration Rights. The Company shall not grant to any
-------------------
person any rights superior to those of the Investor to have the Company's
capital stock registered for sale to the public in connection with the laws of
any jurisdiction or grant any such rights as would in any way limit the
Investor's registration rights, except that the Company may grant to other
investors registration rights no more favorable to such other investors than
those granted to the Investor in the Registration Rights Agreement.
ARTICLE V
CLOSING DELIVERIES
------------------
Contemporaneously herewith or prior hereto, the Company or the
Investor, as the case may be, is delivering or has previously delivered to the
other, each of the following documents or instruments:
Section 5.1 Registration Rights Agreement. The Company and the
-----------------------------
Investor shall have executed and delivered to the other the Registration Rights
Agreement.
Section 5.2 Purchase Price. The Investor shall have delivered to the
--------------
Company the purchase price required pursuant to Section 1.1 hereof, by certified
check or wire transfer of immediately available funds.
Section 5.3 Warrant Certificates. The Company shall have delivered
--------------------
to the Investor certificates representing the Class B Warrants constituting the
Investment, registered in the name of the Investor.
ARTICLE VI
POST-CLOSING DELIVERIES
-----------------------
Within ten business days after the Closing Date, the Investor shall
receive each of the following:
9
<PAGE>
Section 6.1 Secretary's Certificate. The Company shall have
-----------------------
delivered to the Investor a certificate of the Secretary of the Company, dated
as of the Closing Date, certifying (a) attached copies of the Company's
Memorandum of Association and Articles of Association as then in effect, (b) the
adoption by the Company's Board of Directors and shareholders (to the extent
required) of attached resolutions authorizing, among other things, the execution
and delivery of this Agreement, the Registration Rights Agreement and the Class
B Warrants and the consummation of the transactions contemplated hereby and
thereby, and (c) the incumbency and signatures of the officers of the Company
executing this Agreement and the other agreements and instruments contemplated
hereby.
Section 6.2 Opinion of Counsel to the Company. The Investor shall
---------------------------------
have received from Jones, Day, Reavis & Pogue, counsel to the Company, Maples
and Calder, Cayman Islands counsel to the Company opinions dated as of the
Closing Date, substantially in the forms, respectively, of Exhibit C and Exhibit
--------- --------
D hereto.
- -
Failure to receive the documents contemplated in Sections 6.1 and 6.2 shall not
be deemed a breach of this Agreement.
ARTICLE VII
MISCELLANEOUS
-------------
Section 7.1 Amendment, Waivers and Consents. For the purposes of
-------------------------------
this Agreement and all agreements executed pursuant hereto, no course of dealing
between the Company and the Investor and no delay on the part of any party
hereto in exercising any rights hereunder or thereunder shall operate as a
waiver of the rights hereof or thereof. No provision hereof may be waived
except by written instrument signed by the party so waiving such provision. No
amendment of this Agreement shall be binding unless executed in writing by each
party to be bound thereby.
Section 7.2 Survival of Representations; Warranties and Covenants;
------------------------------------------------------
Assignability of Rights. All covenants, agreements, representations and
- -----------------------
warranties of the Company made herein and to be performed prior to or at the
Closing and in the certificates, lists, exhibits, schedules or other written
information delivered or furnished to the Investor in connection herewith or
therewith (a) shall be deemed to have been relied upon by the Investor, and
shall survive the delivery of the Class B Warrants and (b) shall bind the
Company's and shall inure to the benefit of the Investor's successors and
assigns and to transferees of the Class B Warrants.
Section 7.3 Applicable Law. The validity and interpretation of this
--------------
Agreement, and the terms and conditions set forth herein, shall be governed by
and construed in accordance with the laws of the State of New York, without
giving effect to any provisions relating to conflicts of laws.
10
<PAGE>
Section 7.4 Consent to Jurisdiction and Service of Process. All
----------------------------------------------
judicial proceedings arising out of or relating to this Agreement may be brought
in any state or federal court of competent jurisdiction in the State of New
York, and by execution and delivery of this Agreement, the Company accepts the
nonexclusive jurisdiction of the aforesaid courts and waives any defense of
forum non conveniens. The Company designates and appoints CT Corporation
System, 1633 Broadway, New York, New York, and such other persons as may
hereafter be selected by the Company irrevocably agreeing in writing to so
serve, as its agent to receive on its behalf service of all process in any such
proceedings in any such court, such service being hereby acknowledged by the
Company to be effective and binding service in every respect. A copy of any
such process so served shall be mailed by registered mail to the Company at its
address provided in Section 6.8 hereof; provided, however, that, unless
-------- -------
otherwise provided by applicable law, any failure to mail such copy shall not
affect the validity of service of such process. If any agent appointed by the
Company refuses to accept service, the Company hereby agrees that service of
process sufficient for personal jurisdiction in any action against the Company
under this Agreement in the State of New York may be made by registered or
certified mail, return receipt requested, to the Company at its address provided
in Section 6.8 hereof, and the Company hereby acknowledges that such service
shall be effective and binding in every respect. Nothing herein shall affect
the right to serve process in any other manner permitted by law or shall limit
the right of the Investor to bring proceedings against the Company in the courts
of any other jurisdiction.
Section 7.5 Section Headings. The descriptive headings in this
----------------
Agreement have been inserted for convenience only and shall not be deemed to
limit or otherwise affect the construction or interpretation of any provision
thereof or hereof.
Section 7.6 Counterparts. This Agreement may be executed
------------
simultaneously in any number of counterparts, each of which when so executed and
delivered shall be taken to be an original, but such counterparts shall together
constitute but one and the same document.
Section 7.7 Notices and Demands. Any notice or demand which is
-------------------
required or provided to be given under this Agreement shall be deemed to have
been sufficiently given and received for all purposes when delivered by hand,
telecopy, or nationally recognized overnight courier, or five days after being
sent by certified or registered mail, postage and charges prepaid, return
receipt requested, to the following addresses:
If to the Company:
Scottish Life Holdings, Ltd.
Ugland House
113 South Church Street
Georgetown, Grand Cayman
Cayman Islands, British West Indies
Attn: Chief Executive Officer
Facsimile: 345-949-2519
11
<PAGE>
If to the Investor:
or, at any other address designated in writing by such party in accordance with
the provisions of this Section 7.7.
Section 7.8 Severability. Whenever possible, each provision of this
------------
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be deemed
prohibited or invalid under such applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, and such
prohibition or invalidity shall not invalidate the remainder of such provision
or the other provisions of this Agreement.
Section 7.9 Integration. This Agreement, including the exhibits,
-----------
documents and instruments referred to herein or therein, constitutes the entire
agreement, and supersedes any other prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof.
Section 7.10 Publicity. The Company and the Investor shall have the
---------
right to review before issuance any press releases or any other public
statements sought to be made by the other with respect to the transactions
contemplated hereby.
Section 7.11 Restrictions on Transfer. The Class B Warrants shall
------------------------
not be transferable except upon the conditions specified therein, which
conditions are intended to insure compliance with the provisions of the 1933 Act
in respect of the transfer of any such securities.
12
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Warrant Purchase
Agreement to be duly executed and delivered as of the day and year first above
written.
SCOTTISH LIFE HOLDINGS, LTD.
By:
------------------------------------
Name:
Title:
[PURCHASER]
By:
------------------------------------
Name:
Title:
13
<PAGE>
EXHIBIT 4.6
REGISTRATION RIGHTS AGREEMENT
-----------------------------
This REGISTRATION RIGHTS AGREEMENT dated June 9, 1998, is made and
entered by and between Scottish Life Holdings, Ltd., a Cayman Islands company
(the "Company"), and ______________ (the "Initial Holder").
WHEREAS, the Company has issued its Class A Warrants (the "Class A
Warrants") to purchase Ordinary Shares, par value $.01 per share ("Ordinary
Shares"), of the Company, to the Initial Holder pursuant to the terms of that
certain Securities Purchase Agreement, dated as of the date hereof, by and
between the Company and the Initial Holder (the "Securities Purchase
Agreement"); and
WHEREAS, pursuant to the Securities Purchase Agreement, the Company
has agreed to register Ordinary Shares held by the Initial Holder and Ordinary
Shares for which the Warrants are exercisable for sale under the Securities Act
of 1933, as amended;
NOW, THEREFORE, in consideration of the completion of the transactions
contemplated by the Securities Purchase Agreement and of the mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows,
intending to be legally bound.
Section 1. Definitions. As used in this Agreement, the following
-----------
terms have the following meanings:
"Business Day" means any day on which the Company's Ordinary Shares
are available for trading on the principal stock exchange or market upon which
they are traded.
"Closing Date" means the date on which is consummated the transactions
contemplated by the Securities Purchase Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, and the
rules and regulations of the SEC thereunder, all as the same shall be in effect
at the relevant time.
"Holders" means the Initial Holder, Other Investors who are the
initial holders of Class A Warrants or Class B Warrants of the Company and the
permitted successors or assignees of the Initial Holder and such Other
Investors, for so long as (and to the extent that) such Persons own or have the
right to acquire any Registrable Securities.
"Holder Agreements" means this Agreement and any other Agreement
between the Company and one of the Other Investors which is substantially
similar to this Agreement.
"IPO Date" means the date of the consummation of the Company's initial
public offering of its Ordinary Shares.
"Ordinary Shares" means the Company's Ordinary Shares, par value $.01
per share.
<PAGE>
"Other Investors" means (i) the Persons (other than the Company) which
are parties to Securities Purchase Agreements in substantially the form entered
into between the Company and the Initial Holder on June 9, 1998, and (ii) the
Persons which are parties to that certain Warrant Purchase Agreement, dated June
18, 1998, with respect to the issuance of the Company's Class B Warrants (the
"Class B Warrants").
"Person" means an individual, a partnership (general or limited),
corporation, limited liability company, joint venture, business trust,
cooperative, association or other form of business organization, whether or not
regarded as a legal entity under applicable law, a trust (inter vivos or
testamentary), an estate of a deceased, insane or incompetent person, a quasi-
governmental entity, a government or any agency, authority, political
subdivision or other instrumentality thereof, or any other entity.
"Registrable Securities" means (1) "Registrable Securities" as defined
in Holder Agreements with Other Investors; (2) the Ordinary Shares issued to the
Initial Holder prior to issuance of the Warrants and held by the Initial Holder
and permitted transferees of such Ordinary Shares; (3) the Ordinary Shares
issued or issuable pursuant to the Class A Warrants issued pursuant to the terms
of the Securities Purchase Agreement or any other similar agreement; and (4) any
additional Ordinary Shares or other equity securities of the Company issued or
issuable in respect of such Ordinary Shares (or other equity securities issued
in respect thereof) by way of a stock dividend or stock split, in connection
with a combination, exchange, reorganization, recapitalization or
reclassification of Company securities, or pursuant to a merger, division,
consolidation or other similar business transaction or combination involving the
Company; provided that as to any particular Registrable Securities, such
securities shall cease to constitute Registrable Securities (a) when a
registration statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall have been
disposed of thereunder, (b) when such securities shall have been disposed of
pursuant to Rule 144 (or any successor provision to such Rule) under the
Securities Act, or (c) when such securities shall have ceased to be outstanding.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with the registration requirements set forth in
this Agreement including, without limitation, the following: (a) the fees,
disbursements and expenses of the Company's counsel, accountants, and experts in
connection with the registration under the Securities Act of Registrable
Securities; (b) all expenses in connection with the preparation, printing and
filing of the registration statement, any preliminary prospectus or final
prospectus, any other offering document and amendments and supplements thereto,
and the mailing and delivering of copies thereof to underwriters and dealers, if
any; (c) the cost of printing or producing any agreement(s) among underwriters,
underwriting agreement(s) and blue sky or legal investment memoranda, any
selling agreements, and any other documents in connection with the offering,
sale or delivery of Registrable Securities to be disposed of in an underwritten
offering; (d) the fees and expenses incurred in connection with the listing of
Registrable Securities on each securities exchange on which Company securities
of the same class are then listed or with the Nasdaq National Market System; (e)
any SEC or blue sky registration or filing fee attributable to Registrable
Securities; (f) any other expenses in connection with the Securities for offer
and sale under state securities laws, including the fees and disbursements of
counsel for the underwriters in connection with such qualification and in
connection with any blue sky and legal investment surveys; and (h) the filing
fees incident to securing any required review by the National
<PAGE>
Association of Securities Dealers, Inc. of the terms of the sale of Registrable
Securities to be disposed of.
"Registration Statement" means a registration statement under the
Securities Act filed by the Company pursuant to this Agreement, including all
amendments thereto, all preliminary and final prospectuses included therein and
all exhibits thereto.
"SEC" means the United States Securities and Exchange Commission, or
such other federal agency at the time having the principal responsibility for
administering the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC thereunder, all as the same shall be in effect
at the relevant time.
"Warrant" means the Class A Warrants and Class B Warrants of the
Company.
Section 2. Underwritten Demand Registration.
--------------------------------
(a) At any time on or after the first anniversary of the IPO Date, and
before the tenth anniversary of the IPO Date the Holder or Holders of twenty
(20) percent or more of the Ordinary Shares which are, or would be upon exercise
of Class A or Class B Warrants, Registrable Securities may (by written notice
delivered to the Company) require registration of all or any portion of such
Registrable Securities for sale in an underwritten public offering. In each such
case, such notice shall specify the number of Registrable Securities for which
such underwritten offering is to be made. Within ten Business Days after its
receipt of any such notice, the Company shall give written notice of such
request to all other Holders, and all such Holders shall have the right to have
any or all Registrable Securities owned by them included in the requested
underwritten offering as they shall specify in a written notice received by the
Company within ten Business Days after the Company's notice is given. Within ten
Business Days after the expiration of such ten Business Day period, the Company
shall notify all Holders requesting inclusion of Registrable Securities in the
proposed underwriting of (1) the aggregate number of Registrable Securities
proposed to be included by all Holders in the offering, and (2) the proposed
commencement date of the offering, which shall be a date not more than thirty
days after the Company gives such notice. The managing underwriter for such
offering shall be chosen by the Holders of a majority of the Registrable
Securities being included therein and shall be satisfactory to the Company.
(b) If any request for an underwriting shall have been made pursuant
to subsection (a), the Company shall prepare and file a Registration Statement
with the SEC as promptly as reasonably practicable, but in any event within 45
days after the managing underwriter's request therefor.
(c) The Company shall not have any obligation to permit or participate
in more than two underwritten public offerings pursuant to this Section, or to
file a Registration Statement pursuant to this Section with respect to less than
the greater of (i) twenty (20) percent of the Ordinary Shares which are, or
would be upon exercise of Class A or Class B Warrants, Registrable Securities or
(ii) 250,000 Ordinary Shares which are Registrable Securities.
3
<PAGE>
(d) The Company shall have the right to defer the filing or
effectiveness of a Registration Statement relating to any registration requested
under this Section for a reasonable period of time not to exceed 180 days if (1)
the Company is, at such time, working on an underwritten public offering of its
securities for the account of the Company and is advised by its managing
underwriter that such offering would in its opinion be materially adversely
affected by such filing; or (2) the Company in good faith determines that any
such filing or the offering of any Registrable Securities would (A) materially
impede, delay or interfere with any proposed financing, offer or sale of
securities, acquisition, corporate reorganization or other significant
transaction involving the Company or (B) require the disclosure of material non-
public information, the disclosure of which would materially and adversely
affect the Company.
(e) The Company shall have no obligation to file a Registration
Statement pursuant to this Section earlier than 180 days after the effective
date of a prior registration statement of the Company covering an underwritten
public offering for the account of the Company the effective date of which is
after the first anniversary of the Closing Date if (1) the Company shall have
offered pursuant to Section 4 to include the Holders' Registrable Securities in
such Registration Statement; and (2) no Registrable Securities requested to be
included in such registration statement shall have been excluded therefrom
pursuant to Section 4(c).
(f) The Holders of a majority of Registrable Securities requested to
be included in any offering pursuant to this Section may elect by written notice
to the Company not to proceed with the offering, in which case the Company shall
not be obligated to proceed with such offering. If the Holders so elect, the
Holders that shall have requested Registrable Securities to be included in the
offering shall pay all Registration Expenses incurred by the Company in
connection with such offering prior to receipt of such notice.
(g) Neither the Company nor any other Person shall be entitled to
include any securities held by it in any underwritten offering pursuant to this
Section, unless all Registrable Securities for which inclusion has been
requested are also included.
(h) No registration of Registrable Securities under this Section shall
relieve the Company of its obligation to effect registrations of Registrable
Securities pursuant to Sections 3 and 4.
Section 3. Shelf Registrations.
-------------------
(a) At any time on or after the first anniversary of the IPO Date, and
before the tenth anniversary of the IPO Date, the Holder or Holders of Ordinary
Shares which are, or would be upon exercise of Class A or Class B Warrants,
Registrable Securities may (by written notice to the Company) require
registration of all or any portion of such Registrable Securities for sale in
open market transactions or negotiated block trades. Within ten Business Days
after its receipt of such notice, the Company shall give written notice of such
request to all other Holders, and all such Holders shall have the right to have
any or all Registrable Securities owned by them included in the requested
registration as they shall specify in a written notice received by the Company
within ten Business Days after the Company's notice is given. Within ten
Business Days after the expiration of such ten Business Day period, the Company
shall notify all Holders requesting
4
<PAGE>
inclusion of Registrable Securities in the requested registration of the
aggregate number of Registrable Securities proposed to be included by all
Holders in this registration.
(b) If any request for registration shall have been made pursuant to
subsection (a) the Company shall prepare and file a Registration Statement with
the SEC as promptly as reasonably practicable, but in any event within 45 days
after the expiration of the ten Business Day period within which the Holders may
request inclusion in the registration.
(c) The Company shall have no obligation to file a Registration
Statement pursuant to this Section earlier than 180 days after the effective
date of any earlier Registration Statement filed pursuant to this Agreement.
(d) The Holders of a majority of Registrable Securities requested to
be included in any registration pursuant to this Section may elect by written
notice to the Company not to proceed with such registration, in which case the
Company will not be obligated to proceed therewith. If the Holders so elect, the
Holders that shall have requested Registrable Securities to be included in the
registration shall pay all Registration Expenses incurred by the Company in
connection with such offering prior to receipt of such notice.
(e) No registration of Registrable Securities under this Section shall
relieve the Company of its obligation to effect registrations of Registrable
Securities under Sections 2 and 4.
Section 4. Incidental Registration.
-----------------------
(a) From and after the first anniversary of the IPO Date, and before
the tenth anniversary of the IPO Date, if the Company proposes, other than
pursuant to Section 2 or 3 of this Agreement, to file a Registration Statement
under the Securities Act to register any of its Ordinary Shares for public sale
under the Securities Act (whether proposed to be offered for sale by the Company
or by any other Person), it will give prompt written notice (which notice shall
specify the intended method or methods of disposition) to the Holders of its
intention to do so, and upon the written request of any Holder delivered to the
Company within ten Business Days after any such notice (which request shall
specify the number of Registrable Securities intended to be disposed of by such
Holder), the Company will use commercially reasonable efforts to include in such
Registration Statement all Registrable Securities which the Company has been so
requested to register by the Holders.
(b) If at any time prior to the effective date of any Registration
Statement described in subsection (a), the Company shall determine for any
reason not to proceed with such registration, the Company may, at its election,
give written notice of such determination to the Holders requesting registration
and thereupon the Company shall be relieved of its obligation to register such
Registrable Securities in connection with such registration.
(c) The Company will not be required to effect any registration of
Registrable Securities pursuant to this Section in connection with an offering
of Ordinary Shares solely for the account of the Company if the Company shall
have been advised in writing (with a copy to the Holders requesting
registration) by a U.S. nationally recognized investment banking firm (which may
be the managing underwriter for the offering) selected by the Company that, in
such firm's
5
<PAGE>
opinion, registration of Registrable Securities and of any other securities
requested to be included in such registration by Persons having rights to
include securities therein at that time may interfere with an orderly sale and
distribution of the securities being sold by the Company in such offering or
adversely affect the price of such securities; but if an offering of less than
all of the Registrable Securities requested to be registered by the Holders and
other securities requested to be included in such registration by such other
Persons would not, in the opinion of such firm, adversely affect the
distribution or price of the securities to be sold by the Company in the
offering, the aggregate number of Registrable Securities requested to be
included in such offering by the Holders shall be reduced pro rata in accordance
with the proportion that the number of shares proposed to be included in such
registration by the Holders bears to the number of shares proposed to be
included in such registration by the Holders and all other such Persons.
(d) The Company shall not be required to give notice of, or effect any
registration of Registrable Securities under this Section incidental to, the
registration of any of its securities in connection with mergers,
consolidations, acquisitions, exchange offers, subscription offers, dividend
reinvestment plans or stock options or other employee benefit or compensation
plans.
(e) No registration of Registrable Securities effected under this
Section shall relieve the Company of its obligations to effect registrations of
Registrable Securities pursuant to Sections 2 and 3.
Section 5. Holdbacks and Other Transfer Restrictions.
-----------------------------------------
(a) No Holder shall, if requested by the managing underwriter in an
underwritten offering: (1) that includes such Holder's Registrable Securities,
effect any public sale or distribution of securities of the Company of the same
class as the securities included in such Registration Statement (or convertible
into or exercisable for such class), including a sale pursuant to Rule 144(k)
under the Securities Act or effect (except as part of such underwritten
registration) any public sale or distribution of securities of the Company of
the same class as the securities included in such Registration Statement (or
convertible into or exercisable for such class), including a sale pursuant to
Rule 144(k) under the Securities Act during the ten day period prior to, and
during the 180-day period beginning on the closing date of each underwritten
offering made pursuant to such registration statement, to the extent timely
notified in writing by the Company or the managing underwriter; and (2) in the
event of an offering for the account of the Company, to the extent Holder does
not elect (or is not permitted under Section 4(c)) to sell such securities in
connection with such offering, effect any public sale or distribution of
securities of the Company of the same class as the securities included in such
Registration Statement (or convertible into or exercisable for such class),
including a sale pursuant to Rule 144(k) under the Securities Act during the
period of distribution of the Company's securities in such offering and during
the period in which the underwriting syndicate, if any, participates in the
aftermarket. In any such case the Company shall require the managing underwriter
to notify the Company and the Company, in turn, shall notify all Holders of
Registrable Securities included in the offering promptly after such
participation ceases. If the Company or such managing underwriter so requests,
each Holder shall enter into an agreement reflecting such restrictions.
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(b) No Holder shall, during any period in which any of its Registrable
Securities are included in any effective Registration Statement, (1) effect any
stabilization transactions or engage in any stabilization activity in connection
with the Ordinary Shares or other equity securities of the Company in
contravention of Regulation M under the Exchange Act; (2) permit any Affiliated
Purchaser (as that term is defined in Rule 100(b) of Regulation M under the
Exchange Act) to bid for or purchase for any account in which such Holder has a
beneficial interest, or attempt to induce any other person to purchase, any
Ordinary Shares or Registrable Securities in contravention of Regulation M under
the Exchange Act; or (3) offer or agree to pay, directly or indirectly, to
anyone any compensation for soliciting another to purchase, or for purchasing
(other than for such Holder's own account), any securities of the Company on a
national securities exchange in contravention of Regulation M under the Exchange
Act.
(c) Each Holder shall, in the case of a registration including
Registrable Securities to be offered by it for sale through brokers
transactions, furnish each broker through whom such Holder offers Registrable
Securities such number of copies of the prospectus as the broker may require and
otherwise comply with the prospectus delivery requirements under the Securities
Act.
Section 6. Registration Procedures. If and whenever the Company is
-----------------------
required by the provisions of this Agreement to effect a registration of
Registrable Securities:
(a) The Company will use commercially reasonable efforts to prepare
and file with the SEC, within the time periods specified herein, a Registration
Statement on Form S-3 or its equivalent (or on such other registration form
available to the Company that permits the greatest extent of incorporation by
reference of materials filed by the Company, under the Exchange Act) and will
use commercially reasonable efforts to cause such registration statement to
become effective as promptly as practicable thereafter and to remain effective
under the Securities Act until (1) the earlier of such time as all securities
covered thereby have been disposed of pursuant to such Registration Statement or
180 days after such Registration Statement becomes effective, in the case of
registrations pursuant to Section 2, or (2) 90 days after such Registration
Statement becomes effective, in the case of registrations pursuant to Section 3,
in every case as any such period may be extended pursuant to subsection (h) or
Section 8.
(b) The Company will prepare and file with the SEC such amendments,
post-effective amendments and supplements to such Registration Statement and the
prospectus used in connection therewith as may be necessary to keep such
Registration Statement effective for such period of time required by subsection
(a), as such period may be extended pursuant to subsection (h) or Section 8.
(c) The Company will comply in all material respects with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during the period during which
any such Registration Statement is required to be effective.
(d) The Company will furnish to any Holder and any underwriter of
Registrable Securities (1) such number of copies (including manually executed
and conformed
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<PAGE>
copies) of such Registration Statement and of each amendment thereof and
supplement thereto (including all annexes, appendices, schedules and exhibits),
(2) such number of copies of the prospectus used in connection with such
Registration Statement (including each preliminary prospectus, any summary
prospectus and the final prospectus and including prospectus supplements), and
(3) such number of copies of other documents, in each case as the Holder or such
underwriter may reasonably request.
(e) The Company will use commercially reasonable efforts to register
or qualify all Registrable Securities covered by such Registration Statement
under the securities or "blue sky" laws of states of the United States and any
other jurisdiction as any Holder or any underwriter shall reasonably request,
and do any and all other acts and things which may be reasonably requested by
such Holder or such underwriter to consummate the offering and disposition of
Registrable Securities in such jurisdictions; but the Company shall not be
required to qualify generally to do business as a foreign corporation or as a
dealer in securities, subject itself to taxation, or consent to general service
of process in any jurisdiction wherein it is not then so qualified or subject.
(f) The Company will use, as soon as practicable after the
effectiveness of the Registration Statement, commercially reasonable efforts to
cause the Registrable Securities covered by such Registration Statement to be
registered with, or approved by, such other United States and Cayman Islands
public, governmental or regulatory authorities, if any, as may be required in
connection with the disposition of such Registrable Securities.
(g) The Company will use commercially reasonable efforts to list the
Registrable Securities covered by such Registration Statement on any securities
exchange (or if applicable, the Nasdaq National Market System) on which any
securities of the Company are then listed, if the listing of such Registrable
Securities is then permitted under the applicable rules of such exchange (or if
applicable, the Nasdaq National Market System).
(h) The Company will notify each Holder as promptly as practicable
and, if requested by any Holder, confirm such notification in writing, (1) when
a prospectus or any prospectus supplement has been filed with the SEC, and when
a Registration Statement or any post-effective amendment thereto has been filed
with and declared effective by the SEC, (2) of the issuance by the SEC of any
stop order or the coming to its knowledge of the initiation of any proceedings
for that purpose, (3) of the receipt by the Company of any notification with
respect to the suspension of the qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (4) of the occurrence of any event which requires
the making of any changes to a Registration Statement or related prospectus so
that such documents will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading (and the Company shall promptly prepare and furnish to each
Holder a reasonable number of copies of a supplemented or amended prospectus
such that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
are made, not misleading), and (5) of the Company's determination that the
filing of a post-effective amendment to a Registration Statement
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<PAGE>
is necessary or appropriate. Upon the receipt of any notice from the Company of
the occurrence of any event of the kind described in clause (4), the Holders
shall forthwith discontinue any offer and disposition of Registrable Securities
pursuant to the Registration Statement covering such Registrable Securities
until all Holders shall have received copies of a supplemented or amended
prospectus which is no longer defective and, if so directed by the Company,
shall deliver to the Company all copies (other than permanent file copies) of
the defective prospectus covering such Registrable Securities which are then in
the Holders' possession. If the Company shall provide any notice of the type
referred to in the preceding sentence, the period during which the Registration
Statement is required by subsection (a) to be effective shall be extended by the
number of days from and including the date such notice is provided, to and
including the date when the Holders shall have received copies of the corrected
prospectus.
(i) The Company will enter into such agreements and take such other
appropriate actions as are customary and reasonably necessary to expedite or
facilitate the disposition of such Registrable Securities (including, without
limitation, making its management available to the extent reasonably requested
by the Holders to participate in marketing presentations to potential investors
in connection with any underwritten offering), and in that regard, will deliver
to the Holders such documents and certificates as may be reasonably requested by
the Holders of a majority of the Registrable Securities being sold or, as
applicable, the managing underwriters, to evidence the Company's compliance with
this Agreement, including, in the case of any underwritten offering, using
commercially reasonable efforts to cause its independent accountants to deliver
to the managing underwriters an accountants' comfort letter substantially
similar to that in scope delivered in an underwritten public offering and
covering audited and interim financial statements included in the registration
statement, or if such letter can not be obtained through the exercise of
commercially reasonable efforts, cause its independent accountants to deliver to
the managing underwriters a comfort letter based on negotiated procedures
providing comfort with respect to the Company's financial statements included or
incorporated by reference in the registration statement at the highest level
permitted to be given by such accountants under the then applicable standards of
the American Institute of Certified Public Accountants with respect to such
Registration Statement.
Section 7. Underwriting.
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(a) If requested by the underwriters for any underwritten offering of
Registrable Securities pursuant to a registration under Section 2, the Company
will enter into and perform its obligations under an underwriting agreement with
the underwriters for such offering, such agreement to contain such
representations and warranties by the Company and such other terms and
provisions as are customarily contained in underwriting agreements with respect
to secondary distributions, including, without limitation, customary provisions
relating to indemnities and contribution and the provision of opinions of
counsel and accountants' comfort letters. If Registrable Securities are to be
distributed by such underwriters on behalf of any Holder, such Holder shall also
be a party to any such underwriting agreement.
(b) If any registration pursuant to Section 4 shall involve an
underwritten offering, the Company may require Registrable Securities requested
to be registered pursuant to Section 4 to be included in such underwriting on
the same terms and conditions as shall be applicable to the securities being
sold through underwriters under such registration. In such case,
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<PAGE>
each Holder requesting registration shall be a party to any such underwriting
agreement. Such agreement shall contain such representations and warranties by
the Holders requesting registration and such other terms and provisions as are
customarily contained in underwriting agreements with respect to secondary
distributions, including, without limitation, provisions relating to indemnities
and contribution (it being understood that each Holder shall not be required to
make any representation concerning the Company or its business or to indemnify
or contribute for any liabilities, losses or expenses related to any omission or
misstatements in any registration statement or prospectus except to the extent
based upon information provided in writing by the Holder expressly for use
therein).
(c) In any offering of Registrable Securities pursuant to a
registration hereunder, each Holder requesting registration shall also enter
into such additional or other agreements as may be customary in such
transactions, which agreements may contain, among other provisions, such
representations and warranties as the Company or the underwriters of such
offering may reasonably request (including, without limitation, those concerning
such Holder, its Registrable Securities, such Holder's intended plan of
distribution and any other information supplied by it to the Company for use in
such registration statement), and customary provisions relating to indemnities
and contribution (it being understood that each Holder shall not be required to
make any representation concerning the Company or its business or to indemnify
or contribute for any liabilities, losses or expenses related to any omission or
misstatements in any registration statement or prospectus except to the extent
based upon information provided in writing by the Holder expressly for use
therein).
Section 8. Information Blackout.
--------------------
(a) At any time when a Registration Statement is effective, upon
written notice from the Company to the Holders that the Company has determined
in good faith that sale of Registrable Securities pursuant to the Registration
Statement would require disclosure of non-public material information, the
disclosure of which would have a material adverse effect on the Company, all
Holders shall suspend sales of Registrable Securities pursuant to such
Registration Statement until the earlier of (1) 20 days after the Company
notifies the Holders of such good faith determination, and (2) such time as the
Company notifies the Holders that such material information has been disclosed
to the public or has ceased to be material or that sales pursuant to such
Registration Statement may otherwise be resumed (the number of days from such
suspension of sales by the Holders until the day when such sales may be resumed
hereunder is hereinafter called a "Sales Blackout Period").
(b) The time period set forth in Section 6(a)(1) or (2) shall be
extended for a number of days equal to the number of days in the Sales Blackout
Period.
(c) No Sales Blackout Period shall be commenced by the Company within
90 days after the end of a Sales Blackout Period.
Section 9. Rule 144. After the IPO Date, the Company shall take all
--------
actions reasonably necessary to comply with the filing requirements described in
Rule 144(c)(1) under the Securities Act so as to enable the Holders to sell
Registrable Securities without registration under the Securities Act. Upon the
written request of any Holder, the Company will deliver to such
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<PAGE>
Holder a written statement as to whether it has complied with the filing
requirements under such Rule 144(c)(1).
Section 10. Preparation; Reasonable Investigation; Information. In
--------------------------------------------------
connection with the preparation and filing of each Registration Statement
registering Registrable Securities under the Securities Act, (a) the Company
will give the Holders and the underwriters, if any, and their respective counsel
and accountants, drafts of such registration statement for their review and
comment prior to filing and (during normal business hours and subject to such
reasonable limitations as the Company may impose to prevent disruption of its
business) such reasonable and customary access to its books and records and such
opportunities to discuss the business of the Company with its officers and the
independent public accountants who have certified its financial statements as
shall be necessary, in the reasonable opinion of the Holders of a majority of
the Registrable Securities being registered and such underwriters or their
respective counsel, to conduct a reasonable investigation within the meaning of
the Securities Act and (b) as a condition precedent to including any Registrable
Securities of any Holder in any such registration, the Company may require such
Holder to furnish the Company such information regarding such Holder and the
distribution of such securities as the Company may from time to time reasonably
request in writing or as shall be required by law or the SEC in connection with
any registration.
Section 11. Indemnification and Contribution.
--------------------------------
(a) In the case of each offering of Registrable Securities made
pursuant to this Agreement, the Company shall, to the extent permitted by
applicable law, indemnify and hold harmless each Holder, its officers and
directors, each underwriter of Registrable Securities so offered and each
Person, if any, who controls any of the foregoing persons within the meaning of
the Securities Act ("Holder Indemnitees"), from and against any and all claims,
liabilities, losses, damages, expenses and judgments, joint or several, to which
they or any of them may become subject, including any amount paid in settlement
of any litigation commenced or threatened, and shall promptly reimburse them, as
and when incurred, for any legal or other expenses incurred by them in
connection with investigating any claims and defending any actions, insofar as
such losses, claims, damages, liabilities or actions shall arise out of, or
shall be based upon, any violation or alleged violation by the Company of the
Securities Act, any blue sky laws, securities laws or other applicable laws of
any state or country in which the Registrable Securities are offered, and
relating to action taken or action or inaction required of the Company in
connection with such offering, or shall arise out of, or shall be based upon,
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement (or in any preliminary or final prospectus included
therein) relating to the offering and sale of such Registrable Securities, or
any amendment thereof or supplement thereto, or in any document incorporated by
reference therein, 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; but the Company shall not be liable to any Holder
Indemnitee in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement, or any omission or alleged omission, if such statement
or omission shall have been made in reliance upon and in conformity with
information furnished to the Company in writing by or on behalf of such Holder
specifically for use in the preparation of the Registration Statement (or in any
preliminary or final prospectus included therein), or any amendment thereof or
supplement thereto. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf
11
<PAGE>
of any Holder and shall survive the transfer of such securities. The foregoing
indemnity agreement is in addition to any liability which the Company may
otherwise have to any Holder Indemnitee.
(b) In the case of each offering of Registrable Securities made
pursuant to this Agreement, each Holder participating in such offering, shall,
to the extent permitted by applicable law, indemnify and hold harmless the
Company, its officers and directors and each person, if any, who controls any of
the foregoing within the meaning of the Securities Act (the "Company
Indemnitees"), from and against any and all claims, liabilities, losses,
damages, expenses and judgments, joint or several, to which they or any of them
may become subject, including any amount paid in settlement of any litigation
commenced or threatened, and shall promptly reimburse them, as and when
incurred, for any legal or other expenses incurred by them in connection with
investigating any claims and defending any actions, insofar as any such losses,
claims, damages, liabilities or actions shall arise out of, or shall be based
upon, any violation by such Holder of the Securities Act, any blue sky laws,
securities laws or other applicable laws of any state or country in which the
Registrable Securities are offered and relating to action taken or action or
inaction required of such Holder in connection with such offering, or shall
arise out of, or shall be based upon, any untrue statement of a material fact
contained in the Registration Statement (or in any preliminary or final
prospectus included therein) relating to the offering and sale of such
Registrable Securities or any amendment thereof or supplement thereto, or any
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but in each case only
to the extent that such untrue statement is contained in, or such fact is
omitted from, information furnished in writing to the Company by or on behalf of
such Holder specifically for use in the preparation of such Registration
Statement (or in any preliminary or final prospectus included therein). Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of any Company Indemnitee. In no event shall the liability
of a Holder hereunder or under Section 11(d) be greater in amount than the
dollar amount of the net proceeds received by it upon the sale of Registrable
Securities pursuant to such offering. The foregoing indemnity is in addition to
any liability which Holder may otherwise have to any Company Indemnitee.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to this Section 11, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing, but the failure to give such notice shall not
relieve the indemnifying party or parties from any liability which it or they
may have to the indemnified party. In case any such proceeding shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party and shall pay as
incurred the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel at its own expense. Notwithstanding the foregoing, the indemnifying
party shall pay as incurred the fees and expenses of the counsel retained by the
indemnified party in the event (1) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (2) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. The
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<PAGE>
indemnifying party, if the Company, shall not, in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for the reasonable
fees and expenses of more than two separate firms, one for the Class A Warrants
or Ordinary Shares for which the Class A Warrants have been exercised (the
"Class A Holder Indemnities") and one for all other Holder Indemnities (the
"Other Holder Indemnities"). Such firm for the Class A Holder Indemnities shall
be designated in writing by Holders of a majority of the Registrable Securities
held by the Class A Holder Indemnities and disposed of under the applicable
Registration Statements. Such firm for the Other Holder Indemnities shall be
designated in writing by the Holders of a majority of the Registrable Securities
held by the Other Holder Indemnities and disposed of under the applicable
Registration Statement. The indemnifying party, if other than the Company, shall
not, in connection with any proceeding or related proceedings in the same
jurisdiction be liable for the reasonable fees and expenses of more than one
separate firm for the Company Indemnitee, which firm shall be designated in
writing by the Company. The indemnifying party 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 judgement for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
the indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by this Section, the indemnifying party agrees that
it shall be liable for any settlement of any proceeding effected without the
indemnifying party's written consent if (i) such settlement is entered into more
than thirty (30) days after receipt by the indemnifying party of the aforesaid
request, and (ii) the indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the consent of the indemnified
party, which consent shall not be unreasonably withheld, 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 or which
requires action other than the payment of money by the indemnifying party.
(d) If the indemnification provided for in this Section 11 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) in respect of any losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) referred to therein, or if the
indemnified party failed to give the notice required under subsection (c) and
the indemnified party is actually prejudiced by such failure, then each
indemnifying party shall, to the extent permitted by applicable law, contribute
to the amount paid or payable by the indemnified party as a result of such
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) in such proportion as is appropriate to reflect the relative fault
of all parties in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof), as well as any other relevant equitable considerations.
Relative fault 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
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties agree
that it would not be just and equitable if contributions pursuant to this
subsection (d) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to above shall be deemed to include any
legal or other expenses reasonably incurred
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<PAGE>
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), 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.
(e) Notwithstanding any other provision of this Section 11, 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 of any material fact contained in any such
registration statement, preliminary prospectus, final prospectus or summary
prospectus contained therein or any omission to state therein a material fact
required to be stated therein or necessary to make the statements therein in
light of the circumstances in which they were made not misleading in a
prospectus or prospectus supplement, if such untrue statement or omission is
completely corrected in an amendment or supplement to such prospectus or
prospectus supplement, the seller of the Registrable Securities has an
obligation under the Securities Act to deliver a prospectus or prospectus
supplement in connection with such sale of Registrable Securities and the seller
of Registrable Securities thereafter fails to deliver such prospectus or
prospectus supplement as so amended or supplemented prior to or concurrently
with the sale of Registrable Securities to the person asserting such loss,
claim, damage or liability after the Company has furnished such seller with a
sufficient number of copies of the same.
Section 12. Expenses. In connection with any registration under this
--------
Agreement the Company shall pay all Registration Expenses (to the extent not
borne by underwriters or others), except as provided in Section 2(f) or 3(d).
Each Holder shall pay its pro rata share of all other expenses of such
registration, including underwriters' discounts and compensation, broker's
commission or similar selling expenses, and each Holder shall pay its own
transfer taxes, if any, applicable to Registrable Securities.
Section 13. Notices. Except as otherwise provided below, whenever it
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is provided in this Agreement that any notice, demand, request, consent,
approval, declaration or other communication shall or may be given to or served
upon any of the parties hereto, or whenever any of the parties hereto, wishes to
provide to or serve upon the other party any other communication with respect to
this Agreement, each such notice, demand, request, consent, approval,
declaration or other communication shall be in writing and shall be delivered in
person or sent by telecopy, as follows: (a) if to a Holder, at the most current
address given by such Holder to the Company by means of a notice given in
accordance with the provisions of this Section 13, and with respect to all other
holders is as set forth in the register for the Registrable Securities; and (b)
if to the Company, initially at the Company's principal address and thereafter
at such other address, notice of which is given in accordance with the
provisions of this Section 13. The furnishing of any notice required hereunder
may be waived in writing by the party entitled to receive such notice. Every
notice, demand, request, consent, approval, declaration or other communication
hereunder shall be deemed to have been duly furnished or served on the party to
which it is addressed, in the case of delivery in person or by telecopy, on the
date when sent (with receipt personally acknowledged in the case of telecopied
notice), and in all other cases, five business days after it is sent. Failure or
delay in delivering copies of any notice, demand, request, consent, approval,
declaration or other communication to the persons designated above to receive
copies shall in no way adversely affect the effectiveness of such notice,
demand, request, consent, approval, declaration or other communication.
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Section 14. Entire Agreement. This Agreement represents the entire
----------------
agreement and understanding among the parties hereto with respect to the subject
matter hereof and supersedes any and all prior oral and written agreements,
arrangements and understandings among the parties hereto with respect to such
subject matter; and this Agreement can be amended, supplemented or changed, and
any provision hereof can be waived or a departure from any provision hereof can
be consented to, only by a written instrument making specific reference to this
Agreement signed by the Company and the Holder.
Section 15. Term. This Agreement shall become effective upon the IPO
----
Date and shall have a term of ten years, expiring at 5:00 P.M. (United States
Eastern Time) on the tenth anniversary of the IPO Date.
Section 16. Headings. The section headings contained in this
--------
Agreement are for general reference purposes only and shall not affect in any
manner the meaning, interpretation or construction of the terms or other
provisions of this Agreement.
Section 17. Applicable Law. This Agreement shall be governed by,
--------------
construed and enforced in accordance with the laws of the State of New York,
applicable without regard to the conflicts of law provisions thereof.
Section 18. Severability. If any provision of this Agreement shall
------------
be held by any court of competent jurisdiction to be illegal, void or
unenforceable, such provision shall be of no force and effect, but the
illegality or unenforceability of such provision shall have no effect upon and
shall not impair the enforceability of any other provision of this Agreement.
Section 19. No Waiver. The failure of any party at any time or times
---------
to require performance of any provision hereof shall not affect the right at a
later time to enforce the same. No waiver by any party of any condition, and no
breach of any provision, term, covenant, representation or warranty contained in
this Agreement, whether by conduct or otherwise, in any one or more instances,
shall be deemed to be construed as a further or continuing waiver of any such
condition or of the breach of any other provision, term, covenant,
representation or warranty of this Agreement.
Section 20. Counterparts. This Agreement may be executed in two or
------------
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same original instrument. Not all
parties need sign the same counterpart. Delivery by facsimile of a signature
page to this Agreement shall have the same effect or delivery of an original
executed counterpart.
Section 21. Successors and Assigns. This Agreement shall inure to
----------------------
the benefit of and be binding upon the successors, assigns and transferees of
each of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; but nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of applicable law. If any Holder shall acquire Registrable
Securities, in any manner, whether by operation of law or otherwise, such
Registerable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities such Holder
shall be conclusively deemed to have agreed to be bound by and to perform
15
<PAGE>
all of the terms and provisions of this Agreement, including the restrictions on
resale set forth in this Agreement, and such Holder shall be entitled to receive
the benefits hereof.
Section 22. Consent to Jurisdiction and Service of Process. All
----------------------------------------------
judicial proceedings arising out of or relating to this Agreement may be brought
in any state or federal court of competent jurisdiction in the State of New
York, and by execution and delivery of this Agreement, the Company accepts the
nonexclusive jurisdiction of the aforesaid courts and waives any defense of
forum non conveniens. The Company designates and appoints CT Corporation
System, 1633 Broadway, New York, New York, and such other persons as may
hereafter be selected by the Company irrevocably agreeing in writing to so
serve, as its agent to receive on its behalf service of all process in any such
proceedings in any such court, such service being hereby acknowledged by the
Company to be effective and binding service in every respect. A copy of any
such process so served shall be mailed by registered mail to the Company at
Ugland House, 113 South Church Street, George Town, Grand Cayman, Cayman
Islands, British West Indies; provided, however, that, unless otherwise provided
-------- -------
by applicable law, any failure to mail such copy shall not affect the validity
of service of such process. If any agent appointed by the Company refuses to
accept service, the Company hereby agrees that service of process sufficient for
personal jurisdiction in any action against the Company under this Agreement in
the State of New York may be made by registered or certified mail, return
receipt requested, to the Company at its address set forth above, and the
Company hereby acknowledges that such service shall be effective and binding in
every respect. Nothing herein shall affect the right to serve process in any
other manner permitted by law or shall limit the right of the Investor to bring
proceedings against the Company in the courts of any other jurisdiction.
16
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed and delivered as
of the date first above written.
SCOTTISH LIFE HOLDINGS, INC.
By:
-----------------------------
Name:
Title:
PURCHASER
---------------------------------
17
<PAGE>
EXHIBIT 4.7
REGISTRATION RIGHTS AGREEMENT
-----------------------------
This REGISTRATION RIGHTS AGREEMENT dated June 18, 1998, is made and
entered by and between Scottish Life Holdings, Ltd., a Cayman Islands company
(the "Company"), and ___________ (the "Initial Holder").
WHEREAS, the Company has issued its Class B Warrants (the "Class B
Warrants") to purchase Ordinary Shares, par value $.01 per share ("Ordinary
Shares"), of the Company, to the Initial Holder pursuant to the terms of that
certain Warrant Purchase Agreement, dated as of the date hereof, by and between
the Company and the Initial Holder (the "Warrant Purchase Agreement"); and
WHEREAS, pursuant to the Warrant Purchase Agreement, the Company has
agreed to register Ordinary Shares held by the Initial Holder and Ordinary
Shares for which the Class B Warrants are exercisable for sale under the
Securities Act of 1933, as amended;
NOW, THEREFORE, in consideration of the completion of the transactions
contemplated by the Warrant Purchase Agreement and of the mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows,
intending to be legally bound.
Section 1. Definitions. As used in this Agreement, the following
-----------
terms have the following meanings:
"Business Day" means any day on which the Company's Ordinary Shares
are available for trading on the principal stock exchange or market upon which
they are traded.
"Closing Date" means the date on which is consummated the transactions
contemplated by the Warrant Purchase Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, and the
rules and regulations of the SEC thereunder, all as the same shall be in effect
at the relevant time.
"Holders" means the Initial Holder, Other Investors who are the
initial holders of Class A Warrants or Class B Warrants of the Company and the
permitted successors or assignees of the Initial Holder and such Other
Investors, for so long as (and to the extent that) such Persons own or have the
right to acquire any Registrable Securities.
"Holder Agreements" means this Agreement and any other Agreement
between the Company and one of the Other Investors which is substantially
similar to this Agreement.
"IPO Date " means the date of the consummation of the initial public
offering of its Ordinary Shares.
"Ordinary Shares" means the Company's Ordinary Shares, par value $.01
per share.
<PAGE>
"Other Investors" means (i) the Persons (other than the Company) which
are parties to those certain Securities Purchase Agreements, dated June 9, 1998,
between the Company and such Persons listed on Schedule 1 thereto, with respect
to the issuance of the Company's Class A Warrants (the "Class A Warrants"), and
(ii) the Persons which are parties to a Class B Warrant purchase agreement,
substantially in the same form as the Warrant Purchase Agreement.
"Person" means an individual, a partnership (general or limited),
corporation, limited liability company, joint venture, business trust,
cooperative, association or other form of business organization, whether or not
regarded as a legal entity under applicable law, a trust (inter vivos or
testamentary), an estate of a deceased, insane or incompetent person, a quasi-
governmental entity, a government or any agency, authority, political
subdivision or other instrumentality thereof, or any other entity.
"Registrable Securities" means (1) "Registrable Securities" as defined
in Holder Agreements with Other Investors; (2) the Ordinary Shares issued or
issuable pursuant to the Class B Warrants issued pursuant to the terms of the
Warrant Purchase Agreement or any other similar agreement; and (3) any
additional Ordinary Shares or other equity securities of the Company issued or
issuable in respect of such Ordinary Shares (or other equity securities issued
in respect thereof) by way of a stock dividend or stock split, in connection
with a combination, exchange, reorganization, recapitalization or
reclassification of Company securities, or pursuant to a merger, division,
consolidation or other similar business transaction or combination involving the
Company; provided that as to any particular Registrable Securities, such
securities shall cease to constitute Registrable Securities (a) when a
registration statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall have been
disposed of thereunder, (b) when such securities shall have been disposed of
pursuant to Rule 144 (or any successor provision to such Rule) under the
Securities Act, or (c) when such securities shall have ceased to be outstanding.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with the registration requirements set forth in
this Agreement including, without limitation, the following: (a) the fees,
disbursements and expenses of the Company's counsel, accountants, and experts in
connection with the registration under the Securities Act of Registrable
Securities; (b) all expenses in connection with the preparation, printing and
filing of the registration statement, any preliminary prospectus or final
prospectus, any other offering document and amendments and supplements thereto,
and the mailing and delivering of copies thereof to underwriters and dealers, if
any; (c) the cost of printing or producing any agreement(s) among underwriters,
underwriting agreement(s) and blue sky or legal investment memoranda, any
selling agreements, and any other documents in connection with the offering,
sale or delivery of Registrable Securities to be disposed of in an underwritten
offering; (d) the fees and expenses incurred in connection with the listing of
Registrable Securities on each securities exchange on which Company securities
of the same class are then listed or with the Nasdaq National Market System; (e)
any SEC or blue sky registration or filing fee attributable to Registrable
Securities; (f) any other expenses in connection with the Securities for offer
and sale under state securities laws, including the fees and disbursements of
counsel for the underwriters in connection with such qualification and in
connection with any blue sky and legal investment
<PAGE>
surveys; and (g) the filing fees incident to securing any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of
Registrable Securities to be disposed of.
"Registration Statement" means a registration statement under the
Securities Act filed by the Company pursuant to this Agreement, including all
amendments thereto, all preliminary and final prospectuses included therein and
all exhibits thereto.
"SEC" means the United States Securities and Exchange Commission, or
such other federal agency at the time having the principal responsibility for
administering the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC thereunder, all as the same shall be in effect
at the relevant time.
"Warrant" means the Class A Warrants and the Class B Warrants of the
Company.
Section 2. Underwritten Demand Registration.
--------------------------------
(a) At any time on or after the first anniversary of the IPO Date, and
before the tenth anniversary of the IPO Date the Holder or Holders of twenty
(20) percent or more of the Ordinary Shares which are, or would be upon exercise
of Class A or Class B Warrants, Registrable Securities may (by written notice
delivered to the Company) require registration of all or any portion of such
Registrable Securities for sale in an underwritten public offering. In each such
case, such notice shall specify the number of Registrable Securities for which
such underwritten offering is to be made. Within ten Business Days after its
receipt of any such notice, the Company shall give written notice of such
request to all other Holders, and all such Holders shall have the right to have
any or all Registrable Securities owned by them included in the requested
underwritten offering as they shall specify in a written notice received by the
Company within ten Business Days after the Company's notice is given. Within ten
Business Days after the expiration of such ten Business Day period, the Company
shall notify all Holders requesting inclusion of Registrable Securities in the
proposed underwriting of (1) the aggregate number of Registrable Securities
proposed to be included by all Holders in the offering, and (2) the proposed
commencement date of the offering, which shall be a date not more than thirty
days after the Company gives such notice. The managing underwriter for such
offering shall be chosen by the Holders of a majority of the Registrable
Securities being included therein and shall be satisfactory to the Company.
(b) If any request for an underwriting shall have been made pursuant
to subsection (a), the Company shall prepare and file a Registration Statement
with the SEC as promptly as reasonably practicable, but in any event within 45
days after the managing underwriter's request therefor.
(c) The Company shall not have any obligation to permit or participate
in more than two underwritten public offerings pursuant to this Section, or to
file a Registration Statement pursuant to this Section with respect to less than
the greater of (i) twenty (20) percent of the
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<PAGE>
Ordinary Shares which are, or would be upon exercise of the Class A or Class B
Warrants, Registrable Securities or (ii) 250,000 Ordinary Shares which are
Registrable Securities.
(d) The Company shall have the right to defer the filing or
effectiveness of a Registration Statement relating to any registration requested
under this Section for a reasonable period of time not to exceed 180 days if (1)
the Company is, at such time, working on an underwritten public offering of its
securities for the account of the Company and is advised by its managing
underwriter that such offering would in its opinion be materially adversely
affected by such filing; or (2) the Company in good faith determines that any
such filing or the offering of any Registrable Securities would (A) materially
impede, delay or interfere with any proposed financing, offer or sale of
securities, acquisition, corporate reorganization or other significant
transaction involving the Company or (B) require the disclosure of material non-
public information, the disclosure of which would materially and adversely
affect the Company.
(e) The Company shall have no obligation to file a Registration
Statement pursuant to this Section earlier than 180 days after the effective
date of a prior registration statement of the Company covering an underwritten
public offering for the account of the Company the effective date of which is
after the first anniversary of the Closing Date if (1) the Company shall have
offered pursuant to Section 4 to include the Holders' Registrable Securities in
such Registration Statement; and (2) no Registrable Securities requested to be
included in such registration statement shall have been excluded therefrom
pursuant to Section 4(c).
(f) The Holders of a majority of Registrable Securities requested to
be included in any offering pursuant to this Section may elect by written notice
to the Company not to proceed with the offering, in which case the Company shall
not be obligated to proceed with such offering. If the Holders so elect, the
Holders that shall have requested Registrable Securities to be included in the
offering shall pay all Registration Expenses incurred by the Company in
connection with such offering prior to receipt of such notice.
(g) Neither the Company nor any other Person shall be entitled to
include any securities held by it in any underwritten offering pursuant to this
Section, unless all Registrable Securities for which inclusion has been
requested are also included.
(h) No registration of Registrable Securities under this Section shall
relieve the Company of its obligation to effect registrations of Registrable
Securities pursuant to Sections 3 and 4.
Section 3. Shelf Registrations.
-------------------
(a) At any time on or after the first anniversary of the IPO Date, and
before the tenth anniversary of the IPO Date, the Holder or Holders of Ordinary
Shares which are, or would be upon exercise of Class A or Class B Warrants,
Registrable Securities, may (by written notice to the Company) require
registration of all or any portion of such Registrable Securities for sale in
open market transactions or negotiated block trades. Within ten Business Days
after its receipt of such notice, the Company shall give written notice of such
request to all other Holders, and all such Holders shall have the right to have
any or all Registrable Securities owned by them included in the requested
registration as they shall specify in a written notice received by the Company
4
<PAGE>
within ten Business Days after the Company's notice is given. Within ten
Business Days after the expiration of such ten Business Day period, the Company
shall notify all Holders requesting inclusion of Registrable Securities in the
requested registration of the aggregate number of Registrable Securities
proposed to be included by all Holders in this registration.
(b) If any request for registration shall have been made pursuant to
subsection (a) the Company shall prepare and file a Registration Statement with
the SEC as promptly as reasonably practicable, but in any event within 45 days
after the expiration of the ten Business Day period within which the Holders may
request inclusion in the registration.
(c) The Company shall have no obligation to file a Registration
Statement pursuant to this Section earlier than 180 days after the effective
date of any earlier Registration Statement filed pursuant to this Agreement.
(d) The Holders of a majority of Registrable Securities requested to
be included in any registration pursuant to this Section may elect by written
notice to the Company not to proceed with such registration, in which case the
Company will not be obligated to proceed therewith. If the Holders so elect, the
Holders that shall have requested Registrable Securities to be included in the
registration shall pay all Registration Expenses incurred by the Company in
connection with such offering prior to receipt of such notice.
(e) No registration of Registrable Securities under this Section shall
relieve the Company of its obligation to effect registrations of Registrable
Securities under Sections 2 and 4.
Section 4. Incidental Registration.
-----------------------
(a) From and after the first anniversary of the IPO Date, and before
the tenth anniversary of the IPO Date, if the Company proposes, other than
pursuant to Section 2 or 3 of this Agreement, to file a Registration Statement
under the Securities Act to register any of its Ordinary Shares for public sale
under the Securities Act (whether proposed to be offered for sale by the Company
or by any other Person), it will give prompt written notice (which notice shall
specify the intended method or methods of disposition) to the Holders of its
intention to do so, and upon the written request of any Holder delivered to the
Company within ten Business Days after any such notice (which request shall
specify the number of Registrable Securities intended to be disposed of by such
Holder), the Company will use commercially reasonable efforts to include in such
Registration Statement all Registrable Securities which the Company has been so
requested to register by the Holders.
(b) If at any time prior to the effective date of any Registration
Statement described in subsection (a), the Company shall determine for any
reason not to proceed with such registration, the Company may, at its election,
give written notice of such determination to the Holders requesting registration
and thereupon the Company shall be relieved of its obligation to register such
Registrable Securities in connection with such registration.
(c) The Company will not be required to effect any registration of
Registrable Securities pursuant to this Section in connection with an offering
of Ordinary Shares solely for the account of the Company if the Company shall
have been advised in writing (with a copy to the
5
<PAGE>
Holders requesting registration) by a U.S. nationally recognized investment
banking firm (which may be the managing underwriter for the offering) selected
by the Company that, in such firm's opinion, registration of Registrable
Securities and of any other securities requested to be included in such
registration by Persons having rights to include securities therein at that time
may interfere with an orderly sale and distribution of the securities being sold
by the Company in such offering or adversely affect the price of such
securities; but if an offering of less than all of the Registrable Securities
requested to be registered by the Holders and other securities requested to be
included in such registration by such other Persons would not, in the opinion of
such firm, adversely affect the distribution or price of the securities to be
sold by the Company in the offering, the aggregate number of Registrable
Securities requested to be included in such offering by the Holders shall be
reduced pro rata in accordance with the proportion that the number of shares
proposed to be included in such registration by the Holders bears to the number
of shares proposed to be included in such registration by the Holders and all
other such Persons.
(d) The Company shall not be required to give notice of, or effect any
registration of Registrable Securities under this Section incidental to, the
registration of any of its securities in connection with mergers,
consolidations, acquisitions, exchange offers, subscription offers, dividend
reinvestment plans or stock options or other employee benefit or compensation
plans.
(e) No registration of Registrable Securities effected under this
Section shall relieve the Company of its obligations to effect registrations of
Registrable Securities pursuant to Sections 2 and 3.
Section 5. Holdbacks and Other Transfer Restrictions.
-----------------------------------------
(a) No Holder shall, if requested by the managing underwriter in an
underwritten offering: (1) that includes such Holder's Registrable Securities,
effect any public sale or distribution of securities of the Company of the same
class as the securities included in such Registration Statement (or convertible
into or exercisable for such class), including a sale pursuant to Rule 144(k)
under the Securities Act or effect (except as part of such underwritten
registration) any public sale or distribution of securities of the Company of
the same class as the securities included in such Registration Statement (or
convertible into or exercisable for such class), including a sale pursuant to
Rule 144(k) under the Securities Act during the ten day period prior to, and
during the 180-day period beginning on the closing date of each underwritten
offering made pursuant to such registration statement, to the extent timely
notified in writing by the Company or the managing underwriter; and (2) in the
event of an offering for the account of the Company, to the extent Holder does
not elect (or is not permitted under Section 4(c)) to sell such securities in
connection with such offering, effect any public sale or distribution of
securities of the Company of the same class as the securities included in such
Registration Statement (or convertible into or exercisable for such class),
including a sale pursuant to Rule 144(k) under the Securities Act during the
period of distribution of the Company's securities in such offering and during
the period in which the underwriting syndicate, if any, participates in
the aftermarket. In any such case the Company shall require the managing
underwriter to notify the Company and the Company, in turn, shall notify all
Holders of Registrable Securities included in the offering promptly after such
participation ceases. If the Company or such managing underwriter so requests,
each Holder shall enter into an agreement reflecting such restrictions.
6
<PAGE>
(b) No Holder shall, during any period in which any of its Registrable
Securities are included in any effective Registration Statement, (1) effect any
stabilization transactions or engage in any stabilization activity in connection
with the Ordinary Shares or other equity securities of the Company in
contravention of Regulation M under the Exchange Act; (2) permit any Affiliated
Purchaser (as that term is defined in Rule 100(b) of Regulation M under the
Exchange Act) to bid for or purchase for any account in which such Holder has a
beneficial interest, or attempt to induce any other person to purchase, any
Ordinary Shares or Registrable Securities in contravention of Regulation M under
the Exchange Act; or (3) offer or agree to pay, directly or indirectly, to
anyone any compensation for soliciting another to purchase, or for purchasing
(other than for such Holder's own account), any securities of the Company on a
national securities exchange in contravention of Regulation M under the Exchange
Act.
(c) Each Holder shall, in the case of a registration including
Registrable Securities to be offered by it for sale through brokers
transactions, furnish each broker through whom such Holder offers Registrable
Securities such number of copies of the prospectus as the broker may require and
otherwise comply with the prospectus delivery requirements under the Securities
Act.
Section 6. Registration Procedures. If and whenever the Company is
-----------------------
required by the provisions of this Agreement to effect a registration of
Registrable Securities:
(a) The Company will use commercially reasonable efforts to prepare
and file with the SEC, within the time periods specified herein, a Registration
Statement on Form S-3 or its equivalent (or on such other registration form
available to the Company that permits the greatest extent of incorporation by
reference of materials filed by the Company, under the Exchange Act) and will
use commercially reasonable efforts to cause such registration statement to
become effective as promptly as practicable thereafter and to remain effective
under the Securities Act until (1) the earlier of such time as all securities
covered thereby have been disposed of pursuant to such Registration Statement or
180 days after such Registration Statement becomes effective, in the case of
registrations pursuant to Section 2, or (2) 90 days after such Registration
Statement becomes effective, in the case of registrations pursuant to Section 3,
in every case as any such period may be extended pursuant to subsection (h) or
Section 8.
(b) The Company will prepare and file with the SEC such amendments,
post-effective amendments and supplements to such Registration Statement and the
prospectus used in connection therewith as may be necessary to keep such
Registration Statement effective for such period of time required by subsection
(a), as such period may be extended pursuant to subsection (h) or Section 8.
(c) The Company will comply in all material respects with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during the period during which
any such Registration Statement is required to be effective.
(d) The Company will furnish to any Holder and any underwriter of
Registrable Securities (1) such number of copies (including manually executed
and conformed
7
<PAGE>
copies) of such Registration Statement and of each amendment thereof and
supplement thereto (including all annexes, appendices, schedules and exhibits),
(2) such number of copies of the prospectus used in connection with such
Registration Statement (including each preliminary prospectus, any summary
prospectus and the final prospectus and including prospectus supplements), and
(3) such number of copies of other documents, in each case as the Holder or such
underwriter may reasonably request.
(e) The Company will use commercially reasonable efforts to register
or qualify all Registrable Securities covered by such Registration Statement
under the securities or "blue sky" laws of states of the United States and any
other jurisdiction as any Holder or any underwriter shall reasonably request,
and do any and all other acts and things which may be reasonably requested by
such Holder or such underwriter to consummate the offering and disposition of
Registrable Securities in such jurisdictions; but the Company shall not be
required to qualify generally to do business as a foreign corporation or as a
dealer in securities, subject itself to taxation, or consent to general service
of process in any jurisdiction wherein it is not then so qualified or subject.
(f) The Company will use, as soon as practicable after the
effectiveness of the Registration Statement, commercially reasonable efforts to
cause the Registrable Securities covered by such Registration Statement to be
registered with, or approved by, such other United States and Cayman Islands
public, governmental or regulatory authorities, if any, as may be required in
connection with the disposition of such Registrable Securities.
(g) The Company will use commercially reasonable efforts to list the
Registrable Securities covered by such Registration Statement on any securities
exchange (or if applicable, the Nasdaq National Market System) on which any
securities of the Company are then listed, if the listing of such Registrable
Securities is then permitted under the applicable rules of such exchange (or if
applicable, the Nasdaq National Market System).
(h) The Company will notify each Holder as promptly as practicable
and, if requested by any Holder, confirm such notification in writing, (1) when
a prospectus or any prospectus supplement has been filed with the SEC, and when
a Registration Statement or any post-effective amendment thereto has been filed
with and declared effective by the SEC, (2) of the issuance by the SEC of any
stop order or the coming to its knowledge of the initiation of any proceedings
for that purpose, (3) of the receipt by the Company of any notification with
respect to the suspension of the qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (4) of the occurrence of any event which requires
the making of any changes to a Registration Statement or related prospectus so
that such documents will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading (and the Company shall promptly prepare and furnish to each
Holder a reasonable number of copies of a supplemented or amended prospectus
such that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
are made, not misleading), and (5) of the Company's determination that the
filing of a post-effective amendment to a Registration Statement
8
<PAGE>
is necessary or appropriate. Upon the receipt of any notice from the Company of
the occurrence of any event of the kind described in clause (4), the Holders
shall forthwith discontinue any offer and disposition of Registrable Securities
pursuant to the Registration Statement covering such Registrable Securities
until all Holders shall have received copies of a supplemented or amended
prospectus which is no longer defective and, if so directed by the Company,
shall deliver to the Company all copies (other than permanent file copies) of
the defective prospectus covering such Registrable Securities which are then in
the Holders' possession. If the Company shall provide any notice of the type
referred to in the preceding sentence, the period during which the Registration
Statement is required by subsection (a) to be effective shall be extended by the
number of days from and including the date such notice is provided, to and
including the date when the Holders shall have received copies of the corrected
prospectus.
(i) The Company will enter into such agreements and take such other
appropriate actions as are customary and reasonably necessary to expedite or
facilitate the disposition of such Registrable Securities (including, without
limitation, making its management available to the extent reasonably requested
by the Holders to participate in marketing presentations to potential investors
in connection with any underwritten offering), and in that regard, will deliver
to the Holders such documents and certificates as may be reasonably requested by
the Holders of a majority of the Registrable Securities being sold or, as
applicable, the managing underwriters, to evidence the Company's compliance with
this Agreement, including, in the case of any underwritten offering, using
commercially reasonable efforts to cause its independent accountants to deliver
to the managing underwriters an accountants' comfort letter substantially
similar to that in scope delivered in an underwritten public offering and
covering audited and interim financial statements included in the registration
statement, or if such letter can not be obtained through the exercise of
commercially reasonable efforts, cause its independent accountants to deliver to
the managing underwriters a comfort letter based on negotiated procedures
providing comfort with respect to the Company's financial statements included or
incorporated by reference in the registration statement at the highest level
permitted to be given by such accountants under the then applicable standards of
the American Institute of Certified Public Accountants with respect to such
Registration Statement.
Section 7. Underwriting.
------------
(a) If requested by the underwriters for any underwritten offering of
Registrable Securities pursuant to a registration under Section 2, the Company
will enter into and perform its obligations under an underwriting agreement with
the underwriters for such offering, such agreement to contain such
representations and warranties by the Company and such other terms and
provisions as are customarily contained in underwriting agreements with respect
to secondary distributions, including, without limitation, customary provisions
relating to indemnities and contribution and the provision of opinions of
counsel and accountants' comfort letters. If Registrable Securities are to be
distributed by such underwriters on behalf of any Holder, such Holder shall also
be a party to any such underwriting agreement.
(b) If any registration pursuant to Section 4 shall involve an
underwritten offering, the Company may require Registrable Securities requested
to be registered pursuant to Section 4 to be included in such underwriting on
the same terms and conditions as shall be applicable to the securities being
sold through underwriters under such registration. In such case,
9
<PAGE>
each Holder requesting registration shall be a party to any such underwriting
agreement. Such agreement shall contain such representations and warranties by
the Holders requesting registration and such other terms and provisions as are
customarily contained in underwriting agreements with respect to secondary
distributions, including, without limitation, provisions relating to indemnities
and contribution (it being understood that each Holder shall not be required to
make any representation concerning the Company or its business or to indemnify
or contribute for any liabilities, losses or expenses related to any omission or
misstatements in any registration statement or prospectus except to the extent
based upon information provided in writing by the Holder expressly for use
therein).
(c) In any offering of Registrable Securities pursuant to a
registration hereunder, each Holder requesting registration shall also enter
into such additional or other agreements as may be customary in such
transactions, which agreements may contain, among other provisions, such
representations and warranties as the Company or the underwriters of such
offering may reasonably request (including, without limitation, those concerning
such Holder, its Registrable Securities, such Holder's intended plan of
distribution and any other information supplied by it to the Company for use in
such registration statement), and customary provisions relating to indemnities
and contribution (it being understood that each Holder shall not be required to
make any representation concerning the Company or its business or to indemnify
or contribute for any liabilities, losses or expenses related to any omission or
misstatements in any registration statement or prospectus except to the extent
based upon information provided in writing by the Holder expressly for use
therein).
Section 8. Information Blackout.
--------------------
(a) At any time when a Registration Statement is effective, upon
written notice from the Company to the Holders that the Company has determined
in good faith that sale of Registrable Securities pursuant to the Registration
Statement would require disclosure of non-public material information, the
disclosure of which would have a material adverse effect on the Company, all
Holders shall suspend sales of Registrable Securities pursuant to such
Registration Statement until the earlier of (1) 20 days after the Company
notifies the Holders of such good faith determination, and (2) such time as the
Company notifies the Holders that such material information has been disclosed
to the public or has ceased to be material or that sales pursuant to such
Registration Statement may otherwise be resumed (the number of days from such
suspension of sales by the Holders until the day when such sales may be resumed
hereunder is hereinafter called a "Sales Blackout Period").
(b) The time period set forth in Section 6(a)(1) or (2) shall be
extended for a number of days equal to the number of days in the Sales Blackout
Period.
(c) No Sales Blackout Period shall be commenced by the Company within
90 days after the end of a Sales Blackout Period.
Section 9. Rule 144. After the IPO Date, the Company shall take all
--------
actions reasonably necessary to comply with the filing requirements described in
Rule 144(c)(1) under the Securities Act so as to enable the Holders to sell
Registrable Securities without registration under the Securities Act. Upon the
written request of any Holder, the Company will deliver to such
10
<PAGE>
Holder a written statement as to whether it has complied with the filing
requirements under such Rule 144(c)(1).
Section 10. Preparation; Reasonable Investigation; Information. In
--------------------------------------------------
connection with the preparation and filing of each Registration Statement
registering Registrable Securities under the Securities Act, (a) the Company
will give the Holders and the underwriters, if any, and their respective counsel
and accountants, drafts of such registration statement for their review and
comment prior to filing and (during normal business hours and subject to such
reasonable limitations as the Company may impose to prevent disruption of its
business) such reasonable and customary access to its books and records and such
opportunities to discuss the business of the Company with its officers and the
independent public accountants who have certified its financial statements as
shall be necessary, in the reasonable opinion of the Holders of a majority of
the Registrable Securities being registered and such underwriters or their
respective counsel, to conduct a reasonable investigation within the meaning of
the Securities Act and (b) as a condition precedent to including any Registrable
Securities of any Holder in any such registration, the Company may require such
Holder to furnish the Company such information regarding such Holder and the
distribution of such securities as the Company may from time to time reasonably
request in writing or as shall be required by law or the SEC in connection with
any registration.
Section 11. Indemnification and Contribution.
--------------------------------
(a) In the case of each offering of Registrable Securities made
pursuant to this Agreement, the Company shall, to the extent permitted by
applicable law, indemnify and hold harmless each Holder, its officers and
directors, each underwriter of Registrable Securities so offered and each
Person, if any, who controls any of the foregoing persons within the meaning of
the Securities Act ("Holder Indemnitees"), from and against any and all claims,
liabilities, losses, damages, expenses and judgments, joint or several, to which
they or any of them may become subject, including any amount paid in settlement
of any litigation commenced or threatened, and shall promptly reimburse them, as
and when incurred, for any legal or other expenses incurred by them in
connection with investigating any claims and defending any actions, insofar as
such losses, claims, damages, liabilities or actions shall arise out of, or
shall be based upon, any violation or alleged violation by the Company of the
Securities Act, any blue sky laws, securities laws or other applicable laws of
any state or country in which the Registrable Securities are offered, and
relating to action taken or action or inaction required of the Company in
connection with such offering, or shall arise out of, or shall be based upon,
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement (or in any preliminary or final prospectus included
therein) relating to the offering and sale of such Registrable Securities, or
any amendment thereof or supplement thereto, or in any document incorporated by
reference therein, 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; but the Company shall not be liable to any Holder
Indemnitee in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement, or any omission or alleged omission, if such statement
or omission shall have been made in reliance upon and in conformity with
information furnished to the Company in writing by or on behalf of such Holder
specifically for use in the preparation of the Registration Statement (or in any
preliminary or final prospectus included therein), or any amendment thereof or
supplement thereto. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf
11
<PAGE>
of any Holder and shall survive the transfer of such securities. The foregoing
indemnity agreement is in addition to any liability which the Company may
otherwise have to any Holder Indemnitee.
(b) In the case of each offering of Registrable Securities made
pursuant to this Agreement, each Holder participating in such offering shall, to
the extent permitted by applicable law, indemnify and hold harmless the Company,
its officers and directors and each person, if any, who controls any of the
foregoing within the meaning of the Securities Act (the "Company Indemnitees"),
from and against any and all claims, liabilities, losses, damages, expenses and
judgments, joint or several, to which they or any of them may become subject,
including any amount paid in settlement of any litigation commenced or
threatened, and shall promptly reimburse them, as and when incurred, for any
legal or other expenses incurred by them in connection with investigating any
claims and defending any actions, insofar as any such losses, claims, damages,
liabilities or actions shall arise out of, or shall be based upon, any violation
by such Holder of the Securities Act, any blue sky laws, securities laws or
other applicable laws of any state or country in which the Registrable
Securities are offered and relating to action taken or action or inaction
required of such Holder in connection with such offering, or shall arise out of,
or shall be based upon, any untrue statement of a material fact contained in the
Registration Statement (or in any preliminary or final prospectus included
therein) relating to the offering and sale of such Registrable Securities or any
amendment thereof or supplement thereto, or any omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that such untrue
statement is contained in, or such fact is omitted from, information furnished
in writing to the Company by or on behalf of such Holder specifically for use in
the preparation of such Registration Statement (or in any preliminary or final
prospectus included therein). Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of any Company
Indemnitee. In no event shall the liability of a Holder hereunder or under
Section 11(d) be greater in amount than the dollar amount of the net proceeds
received by it upon the sale of Registrable Securities pursuant to such
offering. The foregoing indemnity is in addition to any liability which Holder
may otherwise have to any Company Indemnitee.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to this Section 11, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing, but the failure to give such notice shall not
relieve the indemnifying party or parties from any liability which it or they
may have to the indemnified party. In case any such proceeding shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party and shall pay as
incurred the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel at its own expense. Notwithstanding the foregoing, the indemnifying
party shall pay as incurred the fees and expenses of the counsel retained by the
indemnified party in the event (1) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (2) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be
12
<PAGE>
inappropriate due to actual or potential differing interests between them. The
indemnifying party, if the Company, shall not, in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for the reasonable
fees and expenses of more than two separate firms, one for the Holders of Class
B Warrants or Ordinary Shares for which the Class B Warrants have been exercised
(the "Class B Holders Indemnitees"), and one for all other Holder Indemnitees
(the "Other Holder Indemnitees"). Such firm for the Class B Holder Indemnitees
shall be designated in writing by Holders of a majority of the Registrable
Securities held by the Class B Holder Indemnitees and disposed of under the
applicable Registration Statements. Such firm for the Other Holder Indemnitees
shall be designated in writing by the Holders of a majority of the Registrable
Securities held by the Other Holder Indemnitees and disposed of under the
applicable Registration Statement. The indemnifying party, if other than the
Company, shall not, in connection with any proceeding or related proceedings in
the same jurisdiction be liable for the reasonable fees and expenses of more
than one separate firm for the Company Indemnitee, which firm shall be
designated in writing by the Company. The indemnifying party 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 judgement for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested the indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by this Section, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without the indemnifying party's written consent if (i) such
settlement is entered into more than thirty (30) days after receipt by the
indemnifying party of the aforesaid request, and (ii) the indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
consent of the indemnified party, which consent shall not be unreasonably
withheld, 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 or which requires action other than the payment of
money by the indemnifying party.
(d) If the indemnification provided for in this Section 11 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) in respect of any losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) referred to therein, or if the
indemnified party failed to give the notice required under subsection (c) and
the indemnified party is actually prejudiced by such failure, then each
indemnifying party shall, to the extent permitted by applicable law, contribute
to the amount paid or payable by the indemnified party as a result of such
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) in such proportion as is appropriate to reflect the relative fault of
all parties in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof), as well as any other relevant equitable considerations.
Relative fault 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
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties agree
that it would not be just and equitable if contributions pursuant to this
subsection (d) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this subsection (d). The amount paid
13
<PAGE>
or payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to above
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), 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.
(e) Notwithstanding any other provision of this Section 11, 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 of any material fact contained in any such
registration statement, preliminary prospectus, final prospectus or summary
prospectus contained therein or any omission to state therein a material fact
required to be stated therein or necessary to make the statements therein in
light of the circumstances in which they were made not misleading in a
prospectus or prospectus supplement, if such untrue statement or omission is
completely corrected in an amendment or supplement to such prospectus or
prospectus supplement, the seller of the Registrable Securities has an
obligation under the Securities Act to deliver a prospectus or prospectus
supplement in connection with such sale of Registrable Securities and the seller
of Registrable Securities thereafter fails to deliver such prospectus or
prospectus supplement as so amended or supplemented prior to or concurrently
with the sale of Registrable Securities to the person asserting such loss,
claim, damage or liability after the Company has furnished such seller with a
sufficient number of copies of the same.
Section 12. Expenses. In connection with any registration under this
--------
Agreement the Company shall pay all Registration Expenses (to the extent not
borne by underwriters or others), except as provided in Section 2(f) or 3(d).
Each Holder shall pay its pro rata share of all other expenses of such
registration, including underwriters' discounts and compensation, broker's
commission or similar selling expenses, and each Holder shall pay its own
transfer taxes, if any, applicable to Registrable Securities.
Section 13. Notices. Except as otherwise provided below, whenever it
-------
is provided in this Agreement that any notice, demand, request, consent,
approval, declaration or other communication shall or may be given to or served
upon any of the parties hereto, or whenever any of the parties hereto, wishes to
provide to or serve upon the other party any other communication with respect to
this Agreement, each such notice, demand, request, consent, approval,
declaration or other communication shall be in writing and shall be delivered in
person or sent by telecopy, as follows: (a) if to a Holder, at the most current
address given by such Holder to the Company by means of a notice given in
accordance with the provisions of this Section 13, and with respect to all other
holders is as set forth in the register for the Registrable Securities; and (b)
if to the Company, initially at the Company's principal address and thereafter
at such other address, notice of which is given in accordance with the
provisions of this Section 13. The furnishing of any notice required hereunder
may be waived in writing by the party entitled to receive such notice. Every
notice, demand, request, consent, approval, declaration or other communication
hereunder shall be deemed to have been duly furnished or served on the party to
which it is addressed, in the case of delivery in person or by telecopy, on the
date when sent (with receipt personally acknowledged in the case of telecopied
notice), and in all other cases, five business days after it is sent. Failure or
delay in delivering copies of any notice, demand, request,
14
<PAGE>
consent, approval, declaration or other communication to the persons designated
above to receive copies shall in no way adversely affect the effectiveness of
such notice, demand, request, consent, approval, declaration or other
communication.
Section 14. Entire Agreement. This Agreement represents the entire
----------------
agreement and understanding among the parties hereto with respect to the subject
matter hereof and supersedes any and all prior oral and written agreements,
arrangements and understandings among the parties hereto with respect to such
subject matter; and this Agreement can be amended, supplemented or changed, and
any provision hereof can be waived or a departure from any provision hereof can
be consented to, only by a written instrument making specific reference to this
Agreement signed by the Company and the Holder.
Section 15. Term. This Agreement shall become effective upon the IPO
----
Date and shall have a term of ten years, expiring at 5:00 P.M. (United States
Eastern Time) on the tenth anniversary of the IPO Date.
Section 16. Headings. The section headings contained in this
--------
Agreement are for general reference purposes only and shall not affect in any
manner the meaning, interpretation or construction of the terms or other
provisions of this Agreement.
Section 17. Applicable Law. This Agreement shall be governed by,
--------------
construed and enforced in accordance with the laws of the State of New York
applicable without regard to the conflicts of law provisions thereof.
Section 18. Severability. If any provision of this Agreement shall
------------
be held by any court of competent jurisdiction to be illegal, void or
unenforceable, such provision shall be of no force and effect, but the
illegality or unenforceability of such provision shall have no effect upon and
shall not impair the enforceability of any other provision of this Agreement.
Section 19. No Waiver. The failure of any party at any time or times
---------
to require performance of any provision hereof shall not affect the right at a
later time to enforce the same. No waiver by any party of any condition, and no
breach of any provision, term, covenant, representation or warranty contained in
this Agreement, whether by conduct or otherwise, in any one or more instances,
shall be deemed to be construed as a further or continuing waiver of any such
condition or of the breach of any other provision, term, covenant,
representation or warranty of this Agreement.
Section 20. Counterparts. This Agreement may be executed in two or
------------
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same original instrument. Not all
parties need sign the same counterpart. Delivery by facsimile of a signature
page to this Agreement shall have the same effect or delivery of an original
executed counterpart.
Section 21. Successors and Assigns. Except as set forth below, this
----------------------
Agreement shall inure to the benefit of and be binding upon the successors,
assigns and transferees of each of the parties, including, without limitation
and without the need for an express assignment, subsequent Holders; but nothing
herein shall be deemed to permit any assignment, transfer or other disposition
of
15
<PAGE>
Registrable Securities in violation of applicable law. If any Holder shall
acquire Registrable Securities, in any manner, whether by operation of law or
otherwise, such Registerable Securities shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Securities
such Holder shall be conclusively deemed to have agreed to be bound by and to
perform
all of the terms and provisions of this Agreement, including the restrictions on
resale set forth in this Agreement, and such Holder shall be entitled to receive
the benefits hereof.
Section 22. Consent to Jurisdiction and Service of Process. All
----------------------------------------------
judicial proceedings arising out of or relating to this Agreement may be brought
in any state or federal court of competent jurisdiction in the State of New
York, and by execution and delivery of this Agreement, the Company accepts the
nonexclusive jurisdiction of the aforesaid courts and waives any defense of
forum non conveniens. The Company designates and appoints CT Corporation
System, 1633 Broadway, New York, New York, and such other persons as may
hereafter be selected by the Company irrevocably agreeing in writing to so
serve, as its agent to receive on its behalf service of all process in any such
proceedings in any such court, such service being hereby acknowledged by the
Company to be effective and binding service in every respect. A copy of any
such process so served shall be mailed by registered mail to the Company at
Ugland House, 113 South Church Street, George Town, Grand Cayman, Cayman
Islands, British West Indies; provided, however, that, unless otherwise provided
-------- -------
by applicable law, any failure to mail such copy shall not affect the validity
of service of such process. If any agent appointed by the Company refuses to
accept service, the Company hereby agrees that service of process sufficient for
personal jurisdiction in any action against the Company under this Agreement in
the State of New York may be made by registered or certified mail, return
receipt requested, to the Company at its address set forth above, and the
Company hereby acknowledges that such service shall be effective and binding in
every respect. Nothing herein shall affect the right to serve process in any
other manner permitted by law or shall limit the right of the Investor to bring
proceedings against the Company in the courts of any other jurisdiction.
16
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed and delivered as
of the date first above written.
SCOTTISH LIFE HOLDINGS, INC.
By:___________________________________
Name:
Title:
PURCHASER
______________________________________
17
<PAGE>
EXHIBIT 5.1
[MAPLES AND CALDER LETTERHEAD]
To: Scottish Annuity & Life Holdings, Ltd.
Ugland House 7 October, 1998
113 South Church Street
George Town, Grand Cayman
Cayman Islands
Dear Sirs,
Re: Underwritten Offering of up to 19,262,500 Ordinary Shares, par value $.01
- ------------------------------------------------------------------------------
per share (the "Ordinary Shares"), of Scottish Annuity & Life Holdings, Ltd.
- ----------------------------------------------------------------------------
We have acted as counsel as to Cayman Islands law to Scottish Annuity & Life
Holdings, Ltd. (the "Company") in connection with transaction agreements
referred to below and we address this opinion at the request of the Company. We
have reviewed, inter alia, originals or final drafts of the following document:
(A) the Certificate of Incorporation and Memorandum and Articles of Association
of the Company as adopted on 4th June, 1998;
(B) the Resolutions of the Director of the Company dated 9th June, and 18th
June, 1998, 2nd September, 1998 and 7th October, 1998 and the corporate
records of the Company maintained at its registered office in the Cayman
Islands;
(C) the draft Underwriting Agreement to be entered into between the Company and
the Underwriters (the "Underwriting Agreement") as sent to us by Cleary
Gottlieb Steen & Hamilton by fax onn 7th October, 1998;
(D) the Registration Statement on Form S-1 filed by the Company (the
"Registration Statement"); and
(E) a Director's Certificate from a Director of the Company (the "Director's
Certificate").
The following opinion is given only as to circumstances existing on the date
hereof and known to us and as to the laws of the Cayman Islands as the same are
in force at the date hereof. In giving this opinion, we have relied upon the
accuracy of the Director's Certificate without further verification and have
relied upon the following assumptions, which we have not independently verified:
<PAGE>
2
(a) the Underwriting Agreement has been or, as the case may be, will be duly
authorised, executed and delivered by or on behalf of all relevant parties
(other than the Company) and is, or will be legal, valid, binding and
enforceable against all relevant parties in accordance with their
respective terms under the laws of the State of New York ("New York") and
all other relevant laws (other than the laws of the Cayman Islands);
(b) the choice of New York law as the governing law of the Underwriting
Agreement has been made in good faith and would be regarded as a
valid and binding selection which will be upheld by the courts of the New
York as a matter of New York law and all other relevant laws (other than
the laws of the Cayman Islands);
(c) copy documents or the forms of documents provided to us are true copies of,
or in the final forms of, the originals;
(d) the genuineness of all signatures;
(e) the power, authority and legal right of all parties under all relevant laws
and regulations (other than the Company under the laws of the Cayman
Islands) to enter into, execute and perform their respective obligations
under the Underwriting Agreement;
(f) that all preconditions to the obligations of the parties to the Agreement
have been satisfied or duly waived and there has been no breach of the
terms of the said Underwriting Agreement;
(g) no exceptional circumstances exist which give rise to the lifting of the
corporate veil;
(h) there is nothing under any law (other than the laws of the Cayman
Islands) which would or might affect the opinions hereinafter appearing,
specifically, we have made no independent investigation of the laws of
New York.
Based upon and subject to the foregoing and having regard to such legal
considerations as we deem relevant, we are of the opinion that the issue of the
Ordinary Shares is duly authorized and, when the Registration Statement filed by
the Company to effect the registration of the Ordinary Shares under the
Securities Act of 1933, as amended, has been declared effective by the
Securities and Exchange Commission and the Ordinary Shares are issued and
delivered to the Underwriters in accordance with the Underwriting Agreement
against payment of the consideration therefor as provided therein and as
contemplated by the Registration Statement, the Ordinary Shares will be duly
authorized, validly issued, fully paid and nonassessable.
<PAGE>
3
Except as specifically stated herein, we make no comment with regard to any
representations which may be made by the Company in any of the documents
referred to above or otherwise or with regard to the commercial terms of the
said documents.
This opinion, although addressed to you, may be relied upon by your legal
advisers (but in that capacity only). It may not be relied upon by any other
person(s) without our prior written consent save that we hereby consent to the
filing of this opinion as Exhibit 5.1 to the Registration Statement and the
reference to us under the caption "Legal Matters" in the Prospectus constituting
a part of the Registration Statement, upon the understanding that we are not
hereby assuming any professional responsibility to any other person whatsoever.
Yours faithfully,
/s/ Maples and Calder
MAPLES AND CALDER
- -----------------
<PAGE>
EXHIBIT 8.1
[MAPLES AND CALDER LETTERHEAD]
To: Scottish Annuity & Life Holdings, Ltd.
Ugland House 7 October, 1998
113 South Church Street
George Town, Grand Cayman
Cayman Islands
Dear Sirs,
Re: Underwritten Offering of up to 19,262,500 Ordinary Shares, par value $.01
- -----------------------------------------------------------------------------
per share, of Scottish Annuity & Life Holdings, Ltd.
- ----------------------------------------------------
We have acted as counsel for Scottish Annuity & Life Holdings, Ltd., a company
organized under the laws of the Cayman Islands, British West Indies (the
"Company"), in connection with certain aspects of the preparation and filing
with the Securities and Exchange Commission (the "SEC"), under the Securities
Act of 1933, as amended (the "Act"), of the Registration Statement on Form S-1
(No. 333-57227) (the "Registration Statement") of the Company and the Prospectus
contained therein relating to the proposed offering of up to 19,262,500 ordinary
shares of the Company (the "Ordinary Shares").
The following opinion is given only as to circumstances existing on the date
hereof and known to us and as to the laws of the Cayman Islands as the same are
in force at the date hereof. In giving this opinion, we have relied upon the
following assumptions, which we have not independently verified:
(a) copy documents or the forms of documents provided to us are true
copies of, or in the final forms of, the originals;
(b) the genuineness of all signatures;
(c) there is nothing under any law (other than the laws of the Cayman
Islands) which would or might affect the opinions hereinafter
appearing, specifically, we have made no independent investigation
of the laws of the State of New York.
Based upon the foregoing and subject to the qualifications and limitations
hereinafter specified, we are of the opinion that the statements as to tax law
under the law of the Cayman Islands, British West Indies, set forth under the
heading "Material Tax Consequences" in the Registration Statement represent our
opinion, subject to the qualifications and assumptions set forth in such
statements, and we hereby confirm such opinion.
Except as specifically stated herein, we make no comment with regard to any
representations which
<PAGE>
2
may be made by the Company in any of the documents referred to above or
otherwise or with regard to the commercial terms of the said documents.
In issuing our opinion, we have relied solely upon existing provisions of the
Caymanian tax laws. Such laws, regulations, administrative positions and
judicial decisions are subject to change at any time. Also, future changes in
such laws and the interpretation thereof can have retroactive effect. Any such
changes could affect the validity of the opinion set forth above. This opinion
represents our best legal judgment, but has no binding effect or official status
of any kind, and no assurance can be given that contrary positions may not be
taken by the Caymanian government or a court concerning the issues. As noted in
the Prospectus, the statements therein as to the Company's beliefs and
intentions as to factual matters relating to the Company and its operations
represent the views of the Company's management and do not represent our legal
opinion. We also express no opinion as to any tax consequences under any
laws other than the laws of the Cayman Islands.
This opinion is limited to the matters expressly stated herein, and no opinion
is implied or may be inferred beyond the matters expressly stated herein. This
opinion is furnished by us, as counsel for the Company, to you solely for the
benefit of the Company and solely with respect to the Registration Statement and
the Prospectus, upon the understanding that we are not hereby assuming any
professional responsibility to any other person whatsoever.
We hereby consent to the filing of this opinion as in Exhibit to the
Registration Statement and the references to us under the caption "Material Tax
Consequences" in the Prospectus constituting a part of the Registration
Statement.
Yours faithfully,
/s/ Maples and Calder
MAPLES AND CALDER
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Exhibit 8.2
[Letterhead of Jones, Day, Reavis & Pogue]
October 7, 1998
Scottish Annuity & Life Holdings, Ltd.
Ugland House
113 South Church
George Town, Grand Cayman
Cayman Islands, British West Indies
Re: Scottish Annuity & Life Holdings, Ltd.
Registration Statement on Form S-1
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Gentlemen:
We have acted as counsel for Scottish Annuity & Life Holdings, Ltd., a
company organized under the laws of the Cayman Islands, British West Indies (the
"Company"), in connection with certain aspects of the preparation and filing
with the Securities and Exchange Commission (the "SEC"), under the Securities
Act of 1933, as amended (the "Act"), of the Registration Statement on Form S-1
(No. 333-57227) (the "Registration Statement") of the Company and the Prospectus
contained therein relating to the proposed offering of up to 19,262,500 ordinary
shares of the Company.
We have examined such documents, records and matters of law as we have
deemed relevant and necessary for purposes of this Opinion. Based upon the
foregoing and subject to the qualifications and limitations hereinafter
specified, we are of the opinion that the discussion of United States federal
income tax law set forth under the heading "Material Tax Consequences" in the
Registration Statement accurately states our opinion, subject to the
qualifications and assumptions set forth in such statements, and we hereby
confirm such opinion.
This opinion is subject to the following assumptions, qualifications and
limitations:
A. In rendering this opinion , we have assumed that (i) all the
signatures on all documents examined by us (whether originals or copies) are
genuine, authentic and complete, and where any such signature purports to have
been made in a corporate, governmental, fiduciary or other capacity, the person
who affixed such signature to such document had authority to do so, (ii) all
documents supplied to us as photocopies or facsimile copies conform to originals
and (iii) the statements contained in the certificates described in paragraph B
below are accurate in all material respects at the date of this opinion.
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B. In rendering this opinion, we have relied as to certain matters of
fact, without any independent investigation, inquiry or verification upon
certificates of officers of the Company, upon statements made to us in
discussions with the Company's management and upon certificates of public
officials. With your permission, all assumptions and statements of reliance have
been made without any independent investigation or verification on our part
except to the extent otherwise expressly stated, and we express no opinion with
respect to the subject matter or accuracy of the assumptions or items upon which
we have relied.
C. In issuing our opinion, we have relied solely upon existing provisions
of the Internal Revenue Code of 1986, as amended, applicable Treasury Department
regulations in effect as of the date hereof, current published administrative
positions of the Internal Revenue Service contained in revenue rulings and
procedures, and judicial decisions. Such laws, regulations, administrative
positions and judicial decisions are subject to change at any time. Also, future
changes in federal income tax laws and the interpretation thereof can have
retroactive effect. Any such changes could affect the validity of the opinion
set forth above. This opinion represents our best legal judgment, but has no
binding effect or official status of any kind, and no assurance can be given
that contrary positions may not be taken by the Internal Revenue Service or a
court concerning the issues. As noted in the Prospectus, the statements therein
as to the Company's beliefs and intentions as to factual matters relating to the
Company and its operations represent the views of the Company's management and
do not represent our legal opinion. We also express no opinion as to any tax
consequences under any foreign, state or local laws.
D. This opinion is limited to the matters expressly stated herein, and no
opinion is implied or may be inferred beyond the matters expressly stated
herein. This opinion is furnished by us, as counsel for the Company, to you
solely for the benefit of the and solely with respect to the Registration
Statement, upon the understanding that we are not hereby assuming any
professional responsibility to any other person whatsoever.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the references to our firm in the Prospectus under
the headings "Material Tax Consequences" and "Legal Matters." In giving this
consent, we do not admit that we come within the categories of persons whose
consent is required under Section 7 of the Act.
Very truly yours,
/s/ Jones, Day, Reavis & Pogue
JONES, DAY, REAVIS & POGUE
<PAGE>
Exhibit 10.3
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SCOTTISH ANNUITY & LIFE HOLDINGS, LTD.
AMENDED AND RESTATED
1998 STOCK OPTION PLAN
----------------------
1. PURPOSE. The purpose of this Plan is to attract and retain the best
available talent and encourage the highest level of performance by executive
officers, key employees, directors, advisors and consultants, and to provide
them with incentives to put forth maximum efforts for the success of Scottish
Annuity & Life Holdings, Ltd.'s business, in order to serve the best interests
of Scottish Annuity & Life Holdings, Ltd. and its stockholders. All options
granted under the Plan are intended to be nonstatutory stock options.
2. DEFINITIONS. The following terms, when used in the Plan with initial
capital letters, shall have the following meanings:
(a) "Act" means the Securities Exchange Act of 1934, as in effect from
time to time.
(b) "Board" means the Board of Directors of the Company and, to the
extent of any delegation by the Board to a committee (or subcommittee
thereof) pursuant to Paragraph 8 of this Plan, such committee (or
subcommittee).
(c) "Change in Control" shall have the meaning provided in Paragraph
10 of this Plan.
(d) "Code" means the Internal Revenue Code of 1986, as amended from
time to time, and any successor thereto.
(e) "Company" means Scottish Life Holdings, Ltd., a Cayman Islands
limited liability company.
(f) "Date of Grant" means the date specified by the Board on which a
grant of Stock Options shall become effective (which date shall not be
earlier than the date on which the Board takes action with respect
thereto).
(g) "Director" means a member of the Board of Directors of the
Company.
(h) "Eligible Non-Employee Director" means any person, not an employee
of the Company or any Subsidiary, who, prior to the consummation of the
Company's Initial Public Offering, is a Director or who has consented to
become a Director.
(i) "Immediate Family" has the meaning ascribed thereto in Rule 16a-
1(e) under the Act (or any successor rule to the same effect) as in effect
from time to time.
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(j) "Initial Public Offering" means the offering to the public by the
Company of Ordinary Shares registered with the Securities and Exchange
Commission of the United States.
(k) "Market Value Per Share" means, as of any given day, the closing
price of an Ordinary Share on a national securities exchange on which the
Ordinary Shares are listed or admitted to trading on the day preceding the
day such determination is being made or, if there was no closing price
reported on such day, on the most recently preceding day on which such a
closing price was reported; or if the Ordinary Shares are not listed or
admitted to trading on a national securities exchange on the day as of
which the determination is being made, the amount determined by the Board
to be the fair market value of an Ordinary Share on such day; provided,
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however, that Market Value Per Share with respect to the initial grant of
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options to officers and Non-Employee Directors prior to consummation of the
Company's Initial Public Offering means the public offering price per share
of the Ordinary Shares in the Initial Public Offering.
(l) "Option Price" means the purchase price per Ordinary Share payable
on exercise of a Stock Option.
(m) "Optionee" means the optionee named in an agreement evidencing an
outstanding Stock Option or a permitted transferee of a Stock Option.
(n) "Ordinary Shares" means the ordinary shares, par value $0.01 per
share, of the Company or any security into which such Ordinary Shares may
be changed by reason of any transaction or event of the type described in
Paragraph 6 of this Plan.
(o) "Participant" means a person who is selected by the Board to
receive Stock Options under Paragraph 5 of this Plan and who is at that
time (i) an executive officer or other key employee of the Company or any
Subsidiary, (ii) an advisor or consultant to the Company or any Subsidiary,
or (iii) a member of the Board.
(p) "Plan" means this 1998 Stock Option Plan of the Company, as
amended from time to time.
(q) "Rule 16b-3" means Rule 16b-3 under Section 16 of the Act (or any
successor rule to the same effect) as in effect from time to time.
(r) "Stock Option" means the right to purchase Ordinary Shares upon
exercise of an option granted pursuant to Paragraph 5 of this Plan.
(s) "Subsidiary" means any corporation, partnership, joint venture or
other entity in which the Company owns or controls, directly or indirectly,
not less than 50% of the total combined voting power or equity interests
represented by all classes of stock issued by such corporation,
partnership, joint venture or other entity.
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3. SHARES AVAILABLE UNDER PLAN. The Ordinary Shares which may be issued
under the Plan shall not exceed in the aggregate 2,000,000 shares, subject to
adjustment as provided in this Paragraph 3. Such shares may be shares of
original issuance or treasury shares or a combination of the foregoing.
(a) Any Ordinary Shares which are subject to Stock Options that are
terminated unexercised, forfeited or surrendered or that expire for any
reason shall again be available for issuance under the Plan.
(b) The shares available for issuance under the Plan also shall be
subject to adjustment as provided in Paragraph 6 of this Plan.
4. INDIVIDUAL LIMITATION ON STOCK OPTIONS. Notwithstanding anything in
this Plan to the contrary, and subject to adjustment as provided in Paragraph 6
of this Plan, no individual Participant shall be granted Stock Options under
this Plan, during the term of this Plan, for more than 1,000,000 Ordinary
Shares.
5. GRANTS OF STOCK OPTIONS. The Board may from time to time authorize
grants to any Participant of Stock Options upon such terms and conditions as the
Board may determine in accordance with the provisions set forth below.
(a) Each grant shall specify the number of Ordinary Shares to which it
pertains, subject to the limitations set forth in Paragraphs 3 and 4 of
this Plan.
(b) Each grant shall specify the Option Price, which shall not be less
than 100% of the Market Value Per Share on the Date of Grant.
(c) Each grant shall specify whether the Option Price shall be payable
(i) in cash or by check acceptable to the Company or (ii deferred payment
of the Option Price from the proceeds of sale through a bank or broker of
some or all of the shares to which such exercise relates or (ii by a
combination of methods (i) or (ii).
(d) Successive grants may be made to the same Participant whether or
not any Stock Options previously granted to such Participant remain
unexercised.
(e) Each grant shall specify the required period or periods (if any)
of continuous service by the Participant with the Company or any Subsidiary
and/or any other conditions to be satisfied before the Stock Options or
installments thereof shall become exercisable, and any grant may provide
for the earlier exercise of the Stock Options in the event of a Change in
Control of the Company or in the event of any other similar transaction or
event. Unless otherwise provided in the option agreement evidencing a
grant, a grant shall become exercisable in three equal annual installments,
commencing on the first anniversary of the grant.
(f) Each grant shall specify whether or not a Stock Option is
transferable, and the conditions, if any, of such transferability.
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(g) No Stock Option shall be exercisable more than 10 years from the
Date of Grant.
(h) An Optionee may exercise a Stock Option in whole or in part at any
time and from time to time during the period within which the Stock Option
may be exercised. To exercise a Stock Option, an Optionee shall give
written notice to the Company specifying the number of Ordinary Shares to
be purchased and provide payment of the Option Price and any other
documentation that may be required by the Company.
(i) An Optionee shall be treated for all purposes as the owner of
record of the number of Ordinary Shares purchased pursuant to exercise of
the Stock Option (in whole or in part) as of the date the conditions set
forth in Paragraph 5(h) of this Plan are satisfied.
(j) The Board may permit Optionees to elect to defer the issuance of
Ordinary Shares under this Plan pursuant to such rules, procedures or
programs as it may establish for purposes of this Plan. The Board may also
provide that deferred issuances and settlements include the payment or
crediting of dividend equivalents or interest on the deferred amounts.
(k) Each grant shall be evidenced by a stock option agreement executed
on behalf of the Company by the Chief Executive Officer (or another officer
designated by the Board) and delivered to the Participant and containing
such further terms and provisions, consistent with the Plan, as the Board
may approve.
6. ADJUSTMENTS. The Board may make or provide for such adjustments in
the maximum number of shares specified in Paragraphs 3 or 4 of this Plan, in the
number of Ordinary Shares covered by outstanding Stock Options granted
hereunder, in the Option Price applicable to any such Stock Options, and/or in
the kind of shares covered thereby (including shares of another issuer), as the
Board in its sole discretion, exercised in good faith, may determine is
equitably required to prevent dilution or enlargement of the rights of
Participants that otherwise would result from any stock dividend, stock split,
combination of shares, recapitalization or other change in the capital structure
of the Company, merger, consolidation, spin-off, reorganization, partial or
complete liquidation, issuance of rights or warrants to purchase securities or
any other corporate transaction or event having an effect similar to any of the
foregoing. Any fractional shares resulting from the foregoing adjustments shall
be eliminated.
7. WITHHOLDING OF TAXES. To the extent that the Company is required to
withhold federal, state, local or foreign taxes in connection with any benefit
realized by an Optionee under the Plan, or is requested by an Optionee to
withhold additional amounts with respect to such taxes, and the amounts
available to the Company for such withholding are insufficient, it shall be a
condition to the realization of such benefit that the Optionee make arrangements
satisfactory to the Company for payment of the balance of such taxes required or
requested to be withheld. In addition, if permitted by the Board, an Optionee
may elect to have any withholding obligation of the Company satisfied with
Ordinary Shares that would otherwise be transferred to the Optionee on exercise
of the Stock Option.
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<PAGE>
8. ADMINISTRATION OF THE PLAN. (a) The Plan shall be administered by the
Board, which from time to time may delegate all or any part of its authority
under this Plan to a committee (the "Stock Option Committee") of not less than
two Directors appointed by the Board. The members of the Stock Option Committee
shall be "Non-Employee Directors" within the meaning of Rule 16b-3 and "outside
directors" within the meaning of Section 162(m) of the Code. To the extent of
any such delegation, references in this Plan to the Board shall also refer to
the Stock Option Committee. A majority of the members of the Stock Option
Committee shall constitute a quorum, and any action taken by a majority of the
members of the Stock Option Committee who are present at any meeting of the
Stock Option Committee at which a quorum is present, or any actions of the Stock
Option Committee that are unanimously approved by the members of the Stock
Option Committee in writing, shall be the acts of the Stock Option Committee.
The Board shall have the authority to delegate responsibility and authority for
the operation and administration of this Plan, appoint employees and officers of
the Company and Subsidiaries to act on its behalf, and employ persons to assist
in fulfilling its responsibilities under this Plan.
(b) The Board has the full authority and discretion to interpret and
construe any provision of this Plan or of any agreement, notification or
document evidencing the grant of a Stock Option. The interpretation and
construction by the Board of any such provision and any determination by the
Board pursuant to any provision of the Plan or of any such agreement,
notification or document shall be final and conclusive. No member of the Board
shall be liable for any such action or determination made in good faith.
9. AMENDMENTS, ETC. (a) The Board may, without the consent of the
Optionee, amend any agreement evidencing a Stock Option granted under the Plan,
or otherwise take action, to accelerate the time or times at which the Stock
Option may be exercised, to extend the expiration date of the Stock Option, to
waive any other condition or restriction applicable to such Stock Option or to
the exercise of such Stock Option and to reduce the exercise price of such Stock
Option and may amend any such agreement in any other respect with the consent of
the Optionee.
(b) The Plan may be amended from time to time by the Board or any duly
authorized committee thereof. In the event any law, or any rule or regulation
issued or promulgated by the Internal Revenue Service, the Securities and
Exchange Commission, the National Association of Securities Dealers, Inc., any
stock exchange upon which the Ordinary Shares are listed for trading, or any
other governmental or quasi-governmental agency having jurisdiction over the
Company, the Common Stock or the Plan, requires the Plan to be amended, or in
the event Rule 16b-3 is amended or supplemented (e.g., by addition of
---
alternative rules) or any of the rules under Section 16 of the Act are amended
or supplemented, in either event to permit the Company to remove or lessen any
restrictions on or with respect to Stock Options, the Board reserves the right
to amend the Plan to the extent of any such requirement, amendment or
supplement, and all Stock Options then outstanding shall be subject to such
amendment.
(c) The Plan may be terminated at any time by action of the Board.
The termination of the Plan shall not adversely affect the terms of any
outstanding Stock Option.
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<PAGE>
(d) The Plan shall not confer upon any Participant any right with
respect to continuance of employment or other service with the Company or any
Subsidiary, nor shall it interfere in any way with any right the Company or any
Subsidiary would otherwise have to terminate a Participant's employment or other
service at any time.
(e) This Plan shall be effective as of June 18, 1998.
(f) No Stock Option shall be granted pursuant to this Plan on or after
the tenth anniversary of the date of effectiveness of this Plan, but awards
granted prior to such tenth anniversary may extend beyond that date.
10. CHANGE IN CONTROL. For purposes of this Plan, a "Change in Control"
shall mean the occurrence of any of the following events shall have occurred:
(a) The Company is merged or consolidated or reorganized into or with
another corporation or other legal person, and as a result of such merger,
consolidation or reorganization less than a majority of the combined voting
power of the then-outstanding securities of such corporation or person
immediately after such transaction are held in the aggregate by the holders of
Ordinary Shares immediately prior to such transaction;
(b) The Company sells or otherwise transfers all or substantially all
of its assets to any other corporation or other legal person, and less than a
majority of the combined voting power of the then-outstanding securities of such
corporation or person immediately after such sale or transfer is held in the
aggregate by the holders of Ordinary Shares immediately prior to such sale or
transfer;
(c) The Company files a report or proxy statement with the Securities
and Exchange Commission pursuant to the Act disclosing in response to Form 8-K
or Schedule 14A (or any successor schedule, form or report or item therein) that
a change in control of the Company has or may have occurred or will or may occur
in the future pursuant to any then-existing contract or transaction; or
(d) If during any period of two consecutive years after December 31,
1998, individuals who at the beginning of any such period constitute the
Directors cease for any reason to constitute at least a majority thereof, unless
the election, or the nomination for election by the Company's shareholders, of
each Director first elected during such period was approved by a vote of at
least two-thirds of the Directors then still in office who were Directors at the
beginning of any such period.
Notwithstanding the foregoing provisions of Paragraph 10(c) above, a
"Change in Control" shall not be deemed to have occurred for purposes of this
Plan (i) by reason of any action taken by the Company, including changed in
beneficial ownership of equity securities of the Company occurring in connection
with the Company's Initial Public Offering; (ii) solely because (A) the Company,
(B) a Subsidiary, or (C) any Company-sponsored employee stock ownership plan or
other employee benefit plan of the Company either files or becomes obligated to
file a report or proxy statement under or in response to Schedule 13D, Schedule
14D-1, Form 8-K or
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<PAGE>
Schedule 14A (or any successor schedule, form or report or item therein) under
the Act, disclosing beneficial ownership by it of shares, or because the Company
reports that a change of control of the Company has or may have occurred or will
or may occur in the future by reason of such beneficial ownership; or (iii)
solely because of a change in control of any Subsidiary other than Scottish Life
Assurance (Cayman) Ltd.
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Exhibit 10.4
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FORM OF
NONQUALIFIED STOCK OPTION AGREEMENT
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This AGREEMENT (the "Agreement") is made as of ____________ (the "Date of
Grant") by and between SCOTTISH ANNUITY & LIFE HOLDINGS, LTD., a Cayman Islands
corporation (the "Company") and __________________ (the "Optionee").
1. GRANT OF SHARE OPTION. Subject to and upon the terms, conditions, and
restrictions set forth in this Agreement and in the Company's Amended and
Restated 1998 Stock Option Plan (the "Plan"), the Company hereby grants to the
Optionee as of the Date of Grant a stock option (the "Option") to purchase
_____________ of the Company's Ordinary Shares (the "Optioned Shares"). The
Option may be exercised from time to time in accordance with the terms of this
Agreement. The price at which the Optioned Shares may be purchased pursuant to
this Option shall be $____________ per share subject to adjustment as
hereinafter provided (the "Option Price"). The Option is intended to be a
nonqualified stock option and shall not be treated as an "incentive stock
option" within the meaning of that term under Section 422 of the Code, or any
successor provision thereto.
2. TERM OF OPTION. The term of the Option shall commence on the Date of
Grant and, unless earlier terminated in accordance with Section 6 hereof, shall
expire ten (10) years from the Date of Grant.
3. RIGHT TO EXERCISE. Subject to expiration or earlier termination, on
each anniversary of the Date of Grant the number of Optioned Shares equal to
thirty-three and one-third percent (33 1/3%) multiplied by the initial number of
Optioned Shares specified in this Agreement shall become exercisable on a
cumulative basis until the Option is fully exercisable. To the extent the Option
is exercisable, it may be exercised in whole or in part. In no event shall the
Optionee be entitled to acquire a fraction of one Optioned Share pursuant to
this Option. The Optionee shall be entitled to the privileges of ownership with
respect to Optioned Shares purchased and delivered to him upon the exercise of
all or part of this Option.
4. TRANSFERABILITY. The Option granted hereby shall be transferable in
whole or part, by the Optionee upon five business days prior notice to the
Company.
5. NOTICE OF EXERCISE; PAYMENT.
(a) To the extent then exercisable, the Option may be exercised by
written notice to the Company stating the number of Optioned Shares for which
the Option is being exercised and the intended manner of payment. The date of
such notice shall be the exercise date. Payment equal to the aggregate Option
Price of the Optioned Shares being exercised shall be tendered in full with the
notice of exercise to the Company in cash in the form of currency or check or
other cash equivalent acceptable to the Company. The
<PAGE>
requirement of payment in cash shall be deemed satisfied if, with the consent of
the Board, the Optionee makes arrangements that are satisfactory to the Company
with a broker that is a member of the National Association of Securities
Dealers, Inc. to sell a sufficient number of Optioned Shares which are being
purchased pursuant to the exercise, so that the net proceeds of the sale
transaction will at least equal the amount of the aggregate Option Price, and
pursuant to which the broker undertakes to deliver to the Company the amount of
the aggregate Option Price not later than the date on which the sale transaction
will settle in the ordinary course of business. The Optionee may also, with the
consent of the Board, tender the Option Price by any combination of the
foregoing methods of payment.
(b) Within ten (10) days after notice, the Company shall direct
the due issuance of the Optioned Shares so purchased.
(c) As a further condition precedent to the exercise of this
Option, the Optionee shall comply with all regulations and the requirements of
any regulatory authority having control of, or supervision over, the issuance of
Ordinary Shares and in connection therewith shall execute any documents which
the Board shall in its sole discretion deem necessary or advisable.
6. TERMINATION OF AGREEMENT. The Agreement and the Option granted hereby
shall terminate automatically and without further notice on the earliest of the
following dates:
(a) Two (2) years after the Optionee's death if the Optionee dies
while in the employ of the Company;
(b) Two (2) years after the date of the Optionee's permanent and
total disability if the Optionee becomes permanently and totally disabled while
an employee of the Company;
(c) Except as provided on a case-by-case basis, 60 days after the
date the Optionee ceases to be an employee of the Company, or a Subsidiary, for
any reason other than as described in this Section 6; or
(d) Ten (10) years from the Date of Grant.
In the event that the Optionee's employment is terminated for cause, the
Agreement shall terminate at the time of such termination notwithstanding any
other provision of this Agreement. For purposes of this provision, "cause"
shall mean the Optionee shall have committed prior to termination of employment
any of the following acts:
(i) an intentional act of fraud, embezzlement, theft, or any
other material violation of law in connection with the Optionee's duties or in
the course of the Optionee's employment;
(ii) intentional wrongful damage to material assets of the
Company;
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(iii) intentional wrongful disclosure of material
confidential information of the Company;
(iv) intentional wrongful engagement in any competitive
activity that would constitute a material breach of the duty of loyalty; or
(v) intentional breach of any stated material employment
policy of the Company.
Any determination of whether an Optionee's employment was terminated for cause
shall be made by the Board, whose determination shall be binding and conclusive.
This Agreement shall not be exercisable for any number of Optioned Shares in
excess of the number of Optioned Shares for which this Agreement is then
exercisable, pursuant to Sections 3 and 7 hereof, on the date of termination of
employment. For the purposes of this Agreement, the continuous employment of
the Optionee with the Company shall not be deemed to have been interrupted, and
the Optionee shall not be deemed to have ceased to be an employee of the
Company, by reason of the transfer of his employment among the Company and its
Subsidiaries or a leave of absence approved by the Board.
7. ACCELERATION OF OPTION. Notwithstanding Section 3, but subject to
earlier termination, the Option granted hereby shall become immediately
exercisable in full in the event of a Change of Control, as defined in the Plan.
8. NO EMPLOYMENT CONTRACT. Nothing contained in this Agreement shall
confer upon the Optionee any right with respect to continuance of employment by
the Company, nor limit or affect in any manner the right of the Company to
terminate the employment or adjust the compensation of the Optionee.
9. TAXES AND WITHHOLDING. If the Company shall be required to withhold
any federal, state, local or foreign tax in connection with the exercise of the
Option, and the amounts available to the Company for such withholding are
insufficient, the Optionee shall pay the tax or make provisions that are
satisfactory to the Company for the payment thereof. The Company will pay any
and all issue and other taxes in the nature thereof which may be payable by the
Company in respect of any issue or delivery upon a purchase pursuant to this
Option.
10. COMPLIANCE WITH LAW. The Company shall make reasonable efforts to
comply with all applicable federal and state securities laws; provided, however,
notwithstanding any other provision of this Agreement, the Option shall not be
exercisable if the exercise thereof would result in a violation of any such law.
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<PAGE>
11. ADJUSTMENTS. The Board may make or provide for such adjustments in
the number of Optioned Shares covered by this Option, in the Option Price
applicable to such Option, and in the kind of shares covered thereby, as the
Board in its sole discretion, exercised in good faith, may determine is
equitably required to prevent dilution or enlargement of the Optionee's rights
that otherwise would result from (a) any stock dividend, stock split,
combination of shares, recapitalization, or other change in the capital
structure of the Company, (b) any merger, consolidation, spin-off,
reorganization, partial or complete liquidation, or issuance of rights or
warrants to purchase securities, or (c) any other corporate transaction or event
having an effect similar to any of the foregoing. In the event of any such
transaction or event, the Board may provide in substitution for this Option such
alternative consideration as it may determine to be equitable in the
circumstances and may require in connection therewith the surrender of this
Option. Any fractional shares resulting from the foregoing adjustments shall be
eliminated.
12. RELATION TO OTHER BENEFITS. Any economic or other benefit to the
Optionee under this Agreement shall not be taken into account in determining any
benefits to which the Optionee may be entitled under any profit-sharing,
retirement or other benefit or compensation plan maintained by the Company and
shall not affect the amount of any life insurance coverage available to any
beneficiary under any life insurance plan covering employees of the Company.
13. AMENDMENTS. Any amendment to the Plan shall be deemed to be an
amendment to this Agreement to the extent that the amendment is applicable
hereto; provided, however, that no amendment shall adversely affect the rights
of the Optionee under this Agreement without the Optionee's consent.
14. SEVERABILITY. In the event that one or more of the provisions of this
Agreement shall be invalidated for any reason by a court of competent
jurisdiction, any provision so invalidated shall be deemed to be separable from
the other provisions hereof, and the remaining provisions hereof shall continue
to be valid and fully enforceable.
15. RELATION TO PLAN. This Agreement is subject to the terms and
conditions of the Plan. In the event of any inconsistent provisions between
this Agreement and the Plan, the Plan shall govern. Capitalized terms used
herein without definition shall have the meanings assigned to them in the Plan.
The Board acting pursuant to the Plan, as constituted from time to time, shall,
except as expressly provided otherwise herein, have the right to determine any
questions which arise in connection with this option or its exercise.
16. SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall inure
to the benefit of, and be binding upon, the successors, administrators, heirs,
legal representatives and assigns of the Optionee, and the successors and
assigns of the Company.
17. GOVERNING LAW. The interpretation, performance, and enforcement of
this Agreement shall be governed by the laws of The Cayman Islands, without
giving effect to the principles of conflict of laws thereof.
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18. NOTICES. Any notice to the Company provided for herein shall be in
writing to the Company, marked Attention: Chief Executive Officer, and any
notice to the Optionee shall be addressed to said Optionee at his or her address
currently on file with the Company. Except as otherwise provided herein, any
written notice shall be deemed to be duly given if and when delivered personally
or deposited in the mail, postage and fees prepaid, and addressed as aforesaid.
Any party may change the address to which notices are to be given hereunder by
written notice to the other party as herein specified (provided that for this
purpose any mailed notice shall be deemed given on the third business day
following deposit of the same in the United States mail).
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed on
its behalf by its duly authorized officer and Optionee has also executed this
Agreement in duplicate counterparts, as of the day and year first above written.
Each counterpart shall be deemed an original, but the duplicate counterparts
together constitute one and the same instrument.
SCOTTISH ANNUITY & LIFE
HOLDINGS, LTD.
By:_______________________________________
Name:
Title:
__________________________________________
Optionee
-5-
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" and to the
use of our report dated October 7, 1998, in the Registration Statement (Form S-
1), dated June 19, 1998, and any amendments or supplements thereto, and the
related Prospectus of Scottish Annuity & Life Holdings, Ltd.
/s/ Ernst & Young
George Town, Grand Cayman
British West Indies
October 9, 1998
