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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
(RULE 13D-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED
PURSUANT TO RULE 13D-1(A) AND AMENDMENTS THERETO
FILED PURSUANT TO RULE 13D-2(A)
(AMENDMENT NO. 2)
ANNUITY AND LIFE RE (HOLDINGS), INC.
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(Name of Issuer)
COMMON SHARES, PAR VALUE $1.00
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(Title of Class of Securities)
G03910 10 9
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(CUSIP Number)
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PAUL S. GIORDANO, ESQ.
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
XL CAPITAL LTD
(F/K/A EXEL LIMITED)
CUMBERLAND HOUSE
ONE VICTORIA STREET
HAMILTON HM 11, BERMUDA
(441) 292-8515
COPY TO:
TREVOR S. NORWITZ, ESQ.
WACHTELL, LIPTON, ROSEN & KATZ
51 W. 52ND ST.
NEW YORK, NY 10019
(212) 403-1000
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON
AUTHORIZED TO RECEIVE COMMUNICATIONS)
MARCH 2, 2000
(DATE OF EVENT WHICH REQUIRES FILING OF THIS STATEMENT)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13D-1(f) or 13d-1(g), check the following
box: [ ].
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
<PAGE>
SCHEDULE 13D
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CUSIP No. G03910 10 9 Page 2 of 7 Pages
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1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
XL CAPITAL LTD (F/K/A EXEL LIMITED)
I.R.S. IDENTIFICATION NO. 98-0058718
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
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3 SEC USE ONLY [ ]
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4 SOURCE OF FUNDS
OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
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6 CITIZENSHIP OR PLACE ORGANIZATION
CAYMAN ISLANDS
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7
SOLE VOTING POWER
-2,970,213-
NUMBER OF
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8
SHARES SHARED VOTING POWER
-0-
BENEFICIALLY
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9
OWNED BY SOLE DISPOSITIVE POWER
-0-
EACH
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10
REPORTING SHARED DISPOSITIVE POWER
-0-
PERSON WITH
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
-2,970,213-
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES [ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
11.6%
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14 TYPE OF REPORTING PERSON
CO
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<PAGE>
XL Capital Ltd (f/k/a EXEL Limited) hereby amends the Schedule 13D
originally filed on April 30, 1998, as amended by Amendment No. 1 thereto filed
with the Securities and Exchange Commission on January 18, 2000 (the "Schedule
13D"), as set forth herein. Capitalized terms used without definition in this
Amendment No. 2 to the Schedule 13D shall have the respective meanings ascribed
thereto in the Schedule 13D.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Item 3 of the Schedule 13D is hereby amended by adding the following:
The information set forth in Item 4 below regarding the amount of funds
and other consideration used in making the purchase described in this Amendment
No. 2 to the Schedule 13D is incorporated herein by reference. The cash portion
of such consideration was furnished from the working capital of the Reporting
Person.
ITEM 4. PURPOSE OF THE TRANSACTION.
Item 4 of the Schedule 13D is hereby amended by adding the following:
On March 2, 2000, the Reporting Person, a wholly owned subsidiary of the
Reporting Person, Risk Capital Holdings, Inc. ("RCH") and a wholly owned
subsidiary of RCH completed the transactions contemplated by the Stock
Repurchase Agreement, dated as of January 17, 2000, by and among the Reporting
Person, a wholly owned subsidiary of the Reporting Person, RCH and a wholly
owned subsidiary of RCH (the "Stock Repurchase Agreement"). The Stock Repurchase
Agreement was previously filed as Exhibit 99.4 to Amendment No. 1 to the
Schedule 13D and is incorporated herein by reference. In consideration of the
repurchase by RCH from the Reporting Person of all of the shares of common stock
of RCH that the Reporting Person owned and the payment of $3,647,000, pursuant
to the Stock Repurchase Agreement, RCH transferred certain of its assets to the
Reporting Person, including 1,418,440 shares of Company common stock and
warrants to purchase up to an additional 100,000 shares of
<PAGE>
Company common stock. The Reporting Person is now the beneficial owner of 11.6%
of the outstanding Company common stock (including shares of Company common
stock that the Reporting Person has the right to acquire within 60 days of the
date hereof pursuant to the exercise of warrants), but due to certain
restrictions contained in the Company's bye-laws, the Reporting Person is only
able to vote or direct the voting of less than 10.0% of the outstanding shares
of Company common stock. In connection with the transactions described in this
paragraph, RCH has assigned to the Reporting Person its right under a
registration rights agreement entered into between RCH and the Company as of
March 4, 1998 pursuant to which the Company may be required to register the sale
of certain shares of the Company's common stock under the Securities and
Exchange Act of 1933 (the "Registration Rights Agreement"). A copy of the
Registration Rights Agreement is filed as Exhibit 99.6 and is incorporated
herein by reference.
In connection with the completion of the transactions contemplated
by the Repurchase Agreement, the Reporting Person and RCH have entered into the
Voting and Disposition Agreement dated as of March 2, 2000 (the "Voting and
Disposition Agreement"). A copy of the Voting and Disposition Agreement is filed
as Exhibit 99.7 and is incorporated herein by reference. Pursuant to the Voting
and Disposition Agreement, until the Reporting Person acquires certain
regulatory and other approvals, RCH will, for the benefit of the Reporting
Person, continue to hold 379,048 of the 1,418,440 shares of the Company common
stock and all of the warrants acquired pursuant to the Stock Repurchase
Agreement (the "Excess Shares"). Following the receipt of certain regulatory
approvals, RCH will vote the Excess Shares, together with any shares issued upon
the exercise of any Company warrants, as directed by the Reporting Person and
will dispose of the Excess Shares as directed by the Reporting Person, subject
to certain regulatory and other restrictions.
In addition, the Company and the Reporting Person have entered into
a letter agreement dated as of the date hereof that provides the Reporting
Person with the right to select one individual for nomination as a director of
the Company and is intended in part to permit XL to account for its investment
in ALRE using the equity method of accounting under U.S. generally accepted
accounting principles (the "Letter Agreement"). A copy of the Letter Agreement
is filed herewith as Exhibit 99.8 and is incorporated herein by reference.
ITEM 5. INTERESTS IN SECURITIES OF THE ISSUER.
Item 5 of the Schedule 13D is hereby amended by replacing paragraph (a)
with the following:
(a) As of March 2, 2000, the Reporting Person beneficially owned 2,970,213
shares of Company common stock (including shares of Company common stock that
the Reporting Person has the right to acquire within 60 days of the date hereof
pursuant to the exercise of warrants held by the Reporting Person), and held
additional warrants entitling the Reporting person to acquire an additional
66,666 shares of Company common stock. As of March 2, 2000, based on the most
recently available filing with the Securities and Exchange Commission by the
Company containing information regarding the number of shares of outstanding
Company common stock,
<PAGE>
2,970,213 shares of Company common stock represented approximately 11.6% of the
outstanding common stock of the Company.
Item 5 of the Schedule 13D is hereby further amended by adding the
following to paragraph (b) contained therein:
(b) As described above, the Reporting Person does not have the right to
vote or to direct the vote of certain shares of the Company common stock.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
Item 6 of the Schedule 13D is hereby amended by adding the following:
The Registration Rights Agreement, attached as Exhibit 99.6 hereto, is
incorporated by reference herein in its entirety (described above).
The Voting and Disposition Agreement, attached as Exhibit 99.7 hereto, is
incorporated by reference herein in its entirety (described above).
The Letter Agreement, attached as Exhibit 99.8 hereto, is incorporated by
reference herein in its entirety (described above).
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Item 7 of the Schedule 13D is hereby amended by adding the
following:
99.6 Registration Rights Agreement.
99.7 Voting and Disposition Agreement.
99.8 Letter Agreement.
<PAGE>
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete and
correct.
Dated: March 3, 2000
XL Capital Ltd
By: /s/ Paul S. Giordano
Name: Paul S. Giordano
Title: Executive Vice President, General
Counsel & Secretary
EXHIBIT 99.6
REGISTRATION RIGHTS AGREEMENT.
REGISTRATION RIGHTS AGREEMENT dated April ___, 1998, among ANNUITY AND
LIFE RE (HOLDINGS), LTD., a Bermuda corporation (the "Company"), and RISK
CAPITAL REINSURANCE COMPANY (the "Initial Holder").
The Company has issued its common shares, par value $1.00 per share
("Common Shares") and its Class B Warrants to purchase Common Shares (the
"Warrants") to the Initial Holder pursuant to the terms of that certain
Securities Purchase Agreements, between the Company and the Initial Holder dated
as of March 4, 1998 (the "Securities Purchase Agreement"). Pursuant to the
Securities Purchase Agreement, the Company has agreed to register such shares
for sale under the Securities Act of 1933, as amended, as more specifically
provided below.
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": any day on which the Company's Common Shares are
available for trading on the principal stock exchange or market upon which they
are traded.
"Closing Date": the date on which is consummated the transactions
contemplated by the Securities Purchase Agreement.
"Common Shares": the Company's Common Shares, par value $1.00 per
share.
"Exchange Act": the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC thereunder, all as the same shall be in
effect at the relevant time.
"Holders": the Initial Holder and the permitted successors or
assignees of the Initial Holder, for so long as (and to the extent that) such
Persons own or have the right to acquire any Registrable Securities.
"Holder Agreements": This Agreement and any other Agreement between
the Company and one of the Other Investors which is substantially similar to
this Agreement.
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2
"Other Investors": The Persons (other than the Company) which are
parties to Securities Purchase Agreements in substantially the form entered into
between the Company and the Holder on March 4, 1998.
"Person": 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": (1) the Common Shares issued pursuant to
the terms of the Securities Purchase Agreement; (2) the Common Shares issued or
issuable pursuant to the Warrants issued pursuant to the terms of the Securities
Purchase Agreement, and (3) any additional Common Shares or other equity
securities of the Company issued or issuable in respect of such Common 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": 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; (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) the fees and expenses, not
to exceed $25,000, of a single counsel retained by any and all Persons
participating in a registration pursuant to a Holder Agreement, (f) any
underwriters' discounts or compensation, brokers' commissions or similar selling
expenses attributable to the sale of Registrable Securities; (g) any SEC or blue
sky registration or filing fees attributable to Registrable Securities or
transfer taxes applicable to Registrable Securities, (h) any other expenses in
connection with the qualification of Registrable
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3
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 (i) 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": 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": 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": 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": the Class B Warrants of the Company.
Section 2. Underwritten Demand Registration.
(a) At any time on or after the first anniversary of the Closing
Date, and before the tenth anniversary of the Closing Date the Holder or Holders
of thirty (30) percent or more of the 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, at the request of the managing underwriter
for such offering, 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 thirty (30) percent of the 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
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4
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; (2) the Holders shall not have elected to include
in such Registration Statement at least thirty (30) percent of the Registrable
Securities; and (3) 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 Closing
Date, and before the tenth anniversary of the Closing Date, the Holder or
Holders of thirty (30) percent or more of the 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
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 Section.
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(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 Closing Date, and
before the tenth anniversary of the Closing 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 Common 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 securities 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 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
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6
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 such class), including a sale pursuant to Rule 144(k) under the Securities
Act 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 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 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.
(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 Common 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
Common Shares or Registrable Securities
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7
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 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
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8
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 Bermuda 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 shall be
necessary or appropriate. Upon the receipt of any notice from the Company of the
occurrence of any event of
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<PAGE>
9
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
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10
applicable to the securities being sold through underwriters under such
registration. In such case, 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. 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 Holder a written
statement as to whether it has complied with the filing requirements under such
Rule 144(c)(1).
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11
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 county 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
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12
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 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, 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
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13
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 indemnifying party 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 all such indemnified parties. Such firm shall be designated in writing by
the Holders of a majority of the Registrable Securities disposed under the
applicable Registration Statements in the case of Holder Indemnitees and by the
Company in the case of Company Indemnitees. 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 not only both the
relative benefits received by such party (as compared to the benefits received
by all other parties) from the offering in respect of which indemnity is sought,
but also 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. The relative benefits received by a party shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by it bear to the total amounts received by
each other party. 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 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.
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14
(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),
and each Holder shall pay its pro rata share of the items described in clause
(i) of the definition of "Registration Expenses" in Section 1.
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, 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 Holders of a majority of the Registrable
Securities then outstanding, but if by less than all Holders, then only to the
extent such amendment, supplement or change does not adversely affect the rights
of any Holder which is not a party thereto.
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<PAGE>
15
Section 15. 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 16. Applicable Law. This Agreement shall be governed by,
construed and enforced in accordance with the laws of New York applicable to
contracts to be made, executed, delivered and performed wholly within such state
and, in any case, without regard to the conflicts of law principles of such
state.
Section 17. 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 18. 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 19. 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 20. 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
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16
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.
IN WITNESS WHEREOF, this Agreement has been executed and delivered
as of the date first above written.
ANNUITY AND LIFE RE (HOLDINGS), LTD.
By /s/ Lawrence S. Doyle
----------------------------------------
Lawrence S. Doyle
President and Chief Executive Officer
RISK CAPITAL REINSURANCE COMPANY
----------------------------------------
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EXHIBIT 99.7
VOTING AND DISPOSITION AGREEMENT
VOTING AND DISPOSITION AGREEMENT
--------------------------------
THIS VOTING AND DISPOSITION AGREEMENT (the "AGREEMENT") is made this 2nd day of
March, 2000 by and among Garrison Investments Inc. (the "XL SUB"), XL Capital
Ltd ("XL"), Risk Capital Holdings, Inc. ("RCH") and Risk Capital Reinsurance
Company, a wholly owned subsidiary of RCH (the "RCH SUB") (all capitalized terms
used herein but not defined herein shall have the meaning ascribed thereto in
the stock repurchase agreement, by and among RCH, the RCH Sub, XL and the XL
Sub, dated as of the 17th day of January, 2000 (the "REPURCHASE Agreement")).
RECITALS
--------
A. The XL Sub is selling and RCH is repurchasing (the "REPURCHASE") from the XL
Sub 4,755,000 shares (as adjusted for any stock split, reverse stock split,
stock dividend, recapitalization, reclassification, reorganization or similar
transactions) of the common stock, $0.01 par value, of RCH pursuant to the
Repurchase Agreement.
B. Pursuant to the Repurchase Agreement, RCH transferred and assigned all right,
title and interest in and to the ALRE Shares and the ALRE Warrants to the XL Sub
as part of the consideration for the Repurchase.
C. Pursuant to the Repurchase Agreement, the parties have agreed to enter into
this Agreement, pursuant to which RCH will hold, for the sole and exclusive
benefit of XL and the XL Sub, 379,048 of the ALRE Shares, the ALRE Warrants,
common shares of ALRE issued upon the exercise of ALRE Warrants, cash realized
upon the sale of any of the foregoing and any dividends or other distributions
(whether cash, stock or otherwise) with respect thereto (the "HELD INTERESTS"),
and will vote all common shares of ALRE included in the Held Interests as
directed by XL or the XL Sub subject to the limitations set forth in Section
2(e) of the Repurchase Agreement.
D. It is the intent of the parties hereto that, beginning on the date hereof,
all rights and interests in and to the Held Interests inure to the sole and
exclusive benefit of XL and the XL Sub, other than certain voting rights to the
extent specified herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
herein contained, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:
ITEM 1. Voting of ALRE Shares. SUBJECT TO THE RESTRICTIONS SET FORTH IN SECTION
2(E) OF THE REPURCHASE AGREEMENT ARISING FROM CERTAIN REGULATORY MATTERS AND
FROM CERTAIN LIMITATIONS CONTAINED IN THE CHARTER AND BYE-LAWS OF ALRE, RCH
SHALL CAUSE THE COMMON SHARES OF ALRE HELD OR TO BE HELD PURSUANT TO THIS
AGREEMENT TO BE VOTED ON ALL MATTERS WITH RESPECT TO WHICH THE VOTE OF THE
HOLDERS OF COMMON SHARES OF ALRE IS REQUIRED,
<PAGE>
SOLICITED OR PERMITTED IN ACCORDANCE WITH THE WRITTEN INSTRUCTIONS OF XL OR THE
XL SUB. UPON RECEIPT BY RCH AS THE RECORD HOLDER OF THE ALRE SHARES OF NOTICE IN
RESPECT OF ANY MATTER AS TO WHICH A VOTE OF THE HOLDERS OF COMMON SHARES OF ALRE
IS REQUIRED, SOLICITED OR PERMITTED, RCH SHALL PROVIDE XL OR THE XL SUB PROMPT
WRITTEN NOTICE OF SUCH MATTER. IF NO WRITTEN INSTRUCTIONS ARE TIMELY RECEIVED BY
RCH FROM XL OR THE XL SUB, THEN RCH SHALL NOT VOTE ANY OF THE COMMON SHARES OF
ALRE HELD HEREUNDER.
ITEM 2. Disposition of Held Interests. (A) SUBJECT TO THE RESTRICTIONS SET FORTH
IN SECTION 2(E) OF THE REPURCHASE AGREEMENT ARISING FROM CERTAIN REGULATORY
MATTERS AND FROM THE CHARTER AND BYE-LAWS OF ALRE, RCH SHALL SELL, TRANSFER,
ASSIGN OR TAKE SUCH OTHER ACTIONS AS MAY BE REQUESTED IN WRITING BY XL OR THE XL
SUB WITH RESPECT TO THE HELD INTERESTS. RCH SHALL TAKE ANY SUCH REQUESTED ACTION
AS PROMPTLY AS REASONABLY PRACTICABLE AND IN THE MANNER SPECIFIED IN WRITING BY
XL OR THE XL SUB (INCLUDING, BUT NOT LIMITED TO, THE SELECTION OF THE BROKER
EFFECTING ANY SALE OF COMMON SHARES OF ALRE). ALL PROCEEDS FROM THE SALE OF ANY
OF THE HELD INTERESTS AND ALL DIVIDENDS AND OTHER DISTRIBUTIONS OF ANY NATURE
(OTHER THAN STOCK DIVIDENDS, WHICH SHALL REMAIN SUBJECT HERETO AS PROVIDED
HEREIN) SHALL BE PAID OR DELIVERED TO THE XL SUB (OR TO SUCH OTHER PERSON AS XL
OR THE XL SUB SHALL DIRECT IN WRITING). RCH SHALL PAY ANY CASH DIVIDENDS, ANY
CASH PROCEEDS AND ANY OTHER CASH DISTRIBUTIONS ARISING WITH RESPECT TO THE HELD
INTERESTS TO XL OR THE XL SUB BY WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS TO
A BANK ACCOUNT DESIGNATED BY XL OR THE XL SUB IN WRITING TO RCH, SUCH PAYMENT TO
BE MADE WITHIN ONE BUSINESS DAY OF RECEIPT BY RCH OF SUCH DESIGNATION FROM XL OR
THE XL SUB. RCH SHALL DELIVER ANY OTHER PROCEEDS, DIVIDENDS OR DISTRIBUTIONS OF
ANY NATURE ARISING IN CONNECTION WITH THE HELD INTERESTS (OTHER THAN STOCK
DIVIDENDS, WHICH SHALL REMAIN SUBJECT HERETO AS PROVIDED HEREIN) TO XL OR THE XL
SUB IN THE MANNER SPECIFIED IN WRITING BY XL OR THE XL SUB TO RCH, SUCH DELIVERY
TO BE MADE AS PROMPTLY AS REASONABLY PRACTICABLE, AND IN ANY EVENT WITHIN THREE
BUSINESS DAYS OF RECEIPT BY RCH OF SUCH WRITTEN NOTICE.
(b) If XL or the XL Sub requests the sale, transfer or assignment of
any common shares of ALRE held by RCH hereunder, concurrently with the transfer
of such shares, RCH shall deliver to XL or the XL Sub (or to such other person
as the XL Sub shall direct) certificates representing the Held Interests being
transferred duly endorsed in blank or accompanied by stock powers duly endorsed
in blank having attached thereto all necessary stock transfer and documentary
stamps at RCH's expense. If XL or the XL Sub requests the sale, transfer or
assignment of any ALRE Warrants held by RCH hereunder, concurrently with the
transfer of such ALRE Warrants, RCH shall deliver to XL or the XL Sub (or to
such other person as XL or the XL Sub shall direct) such documents as are
required or advisable in connection with such sale, transfer or assignment and
shall take such actions as are required or advisable in connection with such
sale, transfer or assignment pursuant to the agreement under which the ALRE
Warrants were issued. If XL or the XL Sub requests the sale, transfer or
assignment of any other non-cash Held Interests, concurrently with the transfer
of such Held Interest, RCH shall deliver to XL or the XL Sub (or to such other
person as XL or the XL Sub shall direct) such documents as are required or
advisable in connection with such sale, transfer or assignment.
ITEM 3. Adjustments to Shares. IN THE EVENT OF ANY STOCK SPLIT, STOCK DIVIDEND,
RECAPITALIZATION, REORGANIZATION, MERGER, CONSOLIDATION OR SIMILAR TRANSACTION
OF ALRE, SUCH NEW OR ADDITIONAL SHARES ISSUED OR ISSUABLE WITH RESPECT TO THE
HELD INTERESTS SHALL BE
<PAGE>
HELD HEREUNDER AND IN ACCORDANCE WITH THE TERMS HEREOF.
ITEM 4. Public Announcement. WITHOUT THE PRIOR WRITTEN CONSENT OF XL OR THE XL
SUB, NEITHER RCH NOR ANY AFFILIATE OF RCH WILL ISSUE ANY PRESS RELEASE OR MAKE
ANY PUBLIC STATEMENT RELATING TO ANY ACTIONS TAKEN HEREUNDER, EXCEPT AS REQUIRED
BY APPLICABLE LAW.
ITEM 5. Reasonable Best Efforts. THE PARTIES TO THIS AGREEMENT SHALL EACH USE
THEIR REASONABLE BEST EFFORTS TO TAKE, OR CAUSE TO BE TAKEN, ALL APPROPRIATE
ACTION, AND DO, OR CAUSE TO BE DONE, ALL THINGS NECESSARY, PROPER OR ADVISABLE
UNDER APPLICABLE LAW OR OTHERWISE TO TAKE ANY ACTION REQUIRED TO BE TAKEN
HEREUNDER OR NECESSARY TO FULFILL THE INTENT OF THE PARTIES HERETO AS EXPRESSED
IN THE RECITALS.
ITEM 6. Assignment. THIS AGREEMENT AND THE RIGHTS HEREUNDER SHALL NOT BE
ASSIGNABLE OR TRANSFERABLE BY ANY PARTY WITHOUT THE PRIOR WRITTEN CONSENT OF THE
OTHER PARTIES HERETO AND ANY PURPORTED ASSIGNMENT OR TRANSFER IN BREACH HEREOF
SHALL BE VOID AND OF NO EFFECT; PROVIDED, HOWEVER, THAT THE XL SUB AND XL MAY
ASSIGN THEIR RIGHTS UNDER THIS AGREEMENT TO ANY WHOLLY OWNED SUBSIDIARY OF XL,
AND THE XL SUB MAY ASSIGN ITS RIGHTS TO XL, IT BEING UNDERSTOOD THAT ANY SUCH
ASSIGNMENT SHALL NOT RELIEVE THE XL SUB OR XL OF THEIR OBLIGATIONS HEREUNDER.
SUBJECT TO THE PRECEDING SENTENCE, THIS AGREEMENT WILL BE BINDING UPON, INURE TO
THE BENEFIT OF AND BE ENFORCEABLE BY THE PARTIES HERETO AND THEIR RESPECTIVE
SUCCESSORS AND ASSIGNS.
ITEM 7. Termination. THIS AGREEMENT MAY BE TERMINATED
(i) at any time by mutual written consent;
(ii) at any time by XL (on behalf of itself and the XL Sub); and
(iii) at such time as RCH, in accordance with the terms of this
Agreement, no longer holds any of the Held Interests.
ITEM 8. Covenant Regarding ALRE Shares and ALRE Warrants.
(a) RCH agrees (i) it will not permit any of the Held Interests to become
subject to any liens, claims, options, security interests or encumbrances of any
kind or nature (collectively, "ADVERSE INTERESTS"), (ii) it will not take, and
it will not permit any affiliate to take, any action that could impair the title
of RCH, XL and the XL Sub thereto, (iii) it will not permit any Held Interests
to be sold, transferred or assigned without the prior written consent of XL or
the XL Sub and (iv) it will not take, and it will not permit any affiliate to
take, any action inconsistent with the intent of the parties hereto as expressed
in the Recitals. Upon any transfer effected pursuant to Section 2, the XL or XL
Sub (or such other transferee designated by XL or the XL Sub) shall receive good
and marketable title thereto, free and clear of any and all Adverse Interests
(subject to the provisions of ALRE Bye-Law 52 (Limitation on voting rights of
Controlled Shares (as such term is defined in the ALRE Bye-Laws)).
(b) This Section 8 is intended to be for the benefit of, and shall be
enforceable by, XL and the XL Sub and its permitted successors and assigns. If
RCH shall consolidate with or merge into any other corporation or entity and
shall not be the continuing or surviving corporation or entity of such
consolidation or merger, then proper provisions shall be made so that the
successors and assigns of RCH shall assume all of the obligations set forth in
this Agreement.
<PAGE>
ITEM 9. Fees and Expenses. EXCEPT AS OTHERWISE SPECIFIED HEREIN, ALL FEES AND
EXPENSES INCURRED IN CONNECTION WITH THIS AGREEMENT SHALL BE PAID BY THE PARTY
INCURRING SUCH COSTS OR EXPENSES; PROVIDED, HOWEVER, THAT XL AND THE XL SUB
SHALL BE RESPONSIBLE FOR ALL REASONABLE COSTS AND EXPENSES INCURRED WITH THE
CONSENT OF XL OR THE XL SUB THAT ARE ASSOCIATED WITH TAKING ACTIONS TAKEN BY RCH
AT XL OR THE XL SUB'S REQUEST UNDER SECTIONS 1 AND 2 OF THIS AGREEMENT EXCEPT AS
OTHERWISE SPECIFIED THEREIN.
ITEM 10. Amendments and Waiver. NO AMENDMENT TO THIS AGREEMENT SHALL BE
EFFECTIVE UNLESS IT SHALL BE IN WRITING AND SIGNED BY EACH OF THE PARTIES
HERETO. NO WAIVER OF ANY PROVISION OF THIS AGREEMENT SHALL BE EFFECTIVE UNLESS
IN WRITING AND SIGNED BY THE PARTY BENEFITED BY SUCH PROVISION.
ITEM 11. Certain Tax Matters. IN ACCORDANCE WITH THE PARTIES' INTENTION THAT XL
AND THE XL SUB SHALL BE TREATED AS THE BENEFICIAL OWNERS OF THE HELD INTERESTS
AT ALL TIMES, INCLUDING WITHOUT LIMITATION FOR TAX PURPOSES, IN THE EVENT THAT
RCH OR THE RCH SUB IS TREATED AS THE OWNER OF THE HELD INTERESTS OR ANY PART
THEREOF FOR TAX PURPOSES AND THEREBY INCURS OR RECEIVES AN ITEM OF INCOME, GAIN,
LOSS, DEDUCTION OR CREDIT, (I) XL SHALL, OR SHALL CAUSE THE XL SUB TO, PAY TO
RCH OR THE RCH SUB AN AMOUNT EQUAL TO THE PRODUCT OF ANY SUCH ITEM OF INCOME OR
GAIN AND THE HIGHEST COMBINED UNITED STATES FEDERAL, STATE AND LOCAL INCOME TAX
RATE APPLICABLE TO CORPORATIONS AND (II) RCH SHALL, OR SHALL CAUSE THE RCH SUB
TO, PAY TO XL OR THE XL SUB AN AMOUNT EQUAL TO THE SUM OF (A) ANY SUCH ITEM OF
CREDIT AND (B) THE PRODUCT OF ANY SUCH ITEM OF LOSS OR DEDUCTION AND THE HIGHEST
COMBINED UNITED STATES FEDERAL, STATE AND LOCAL INCOME TAX RATE APPLICABLE TO
CORPORATIONS. NEITHER XL, THE XL SUB, RCH, NOR THE RCH SUB SHALL TAKE ANY TAX
POSITION INCONSISTENT WITH THE OWNERSHIP OF THE HELD INTERESTS BY THE XL SUB,
AND ANY BREACH OF THIS SENTENCE SHALL RESULT IN FORFEITURE OF ALL OF THE
BREACHING PARTY'S RIGHTS TO PAYMENT UNDER THIS SECTION 11. THE PARTIES AGREE TO
TREAT ANY PAYMENT UNDER THIS SECTION 11 AS AN ADJUSTMENT TO THE CONSIDERATION
PAID FOR THE REPURCHASE FOR TAX PURPOSES.
ITEM 12. Notices. ALL NOTICES AND OTHER COMMUNICATIONS HEREUNDER SHALL BE MADE
IN THE MANNER AND TO THE LOCATIONS SET FORTH IN SECTION 17 OF THE REPURCHASE
AGREEMENT.
ITEM 13. Entire Agreement. THIS AGREEMENT, TOGETHER WITH THE REPURCHASE
AGREEMENT, CONTAINS THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES
HERETO WITH RESPECT TO THE MATTERS COVERED HEREBY AND SUPERSEDES ALL OTHER
AGREEMENTS AND UNDERSTANDINGS RELATING THERETO.
ITEM 14. Specific Enforcement. RCH AND THE RCH SUB ACKNOWLEDGE AND AGREE THAT
IRREPARABLE DAMAGE WOULD OCCUR IN THE EVENT THAT ANY OF THE PROVISIONS OF THIS
AGREEMENT WERE NOT PERFORMED IN ACCORDANCE WITH THEIR SPECIFIC TERMS OR WERE
OTHERWISE BREACHED. IT IS ACCORDINGLY AGREED THAT XL AND THE XL SUB SHALL BE
ENTITLED TO AN INJUNCTION OR INJUNCTIONS TO PREVENT OR CURE BREACHES OF THE
PROVISIONS OF THIS AGREEMENT AND TO ENFORCE SPECIFICALLY THE TERMS AND
PROVISIONS HEREOF, THIS BEING IN ADDITION TO ANY OTHER REMEDY TO WHICH THEY MAY
BE ENTITLED BY LAW OR EQUITY.
ITEM 15. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
PRINCIPLES OF
<PAGE>
CONFLICTS OF LAW. NOTHING CONTAINED IN THIS AGREEMENT SHALL BE CONSTRUED TO
REQUIRE ANY PARTY HERETO OR ANY OF THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES,
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR REPRESENTATIVES TO TAKE ANY ACTION IN
VIOLATION OF APPLICABLE LAW.
ITEM 16. Severability. IN THE EVENT THAT ANY PROVISION OF THIS AGREEMENT OR THE
APPLICATION THEREOF BECOMES OR IS DECLARED BY A COURT OF COMPETENT JURISDICTION
TO BE ILLEGAL, VOID OR UNENFORCEABLE, THE REMAINDER OF THIS AGREEMENT WILL
CONTINUE IN FULL FORCE AND EFFECT AND THE APPLICATION OF SUCH PROVISION TO OTHER
PERSONS OR CIRCUMSTANCES WILL BE INTERPRETED SO AS REASONABLY TO EFFECT THE
INTENT OF THE PARTIES HERETO SO LONG AS THE ECONOMIC OR LEGAL SUBSTANCE OF THE
TRANSACTIONS CONTEMPLATED HEREBY ARE NOT MATERIALLY ADVERSELY AFFECTED. THE
PARTIES FURTHER AGREE TO NEGOTIATE IN GOOD FAITH TO REPLACE SUCH VOID OR
UNENFORCEABLE PROVISION OF THIS AGREEMENT WITH A VALID AND ENFORCEABLE PROVISION
THAT WILL ACHIEVE, TO THE EXTENT POSSIBLE, THE ECONOMIC, BUSINESS AND OTHER
PURPOSES OF SUCH VOID OR UNENFORCEABLE PROVISION.
ITEM 17. Survival of Representations, Warranties, Agreements and Covenants. ALL
AGREEMENTS AND COVENANTS CONTAINED HEREIN SHALL SURVIVE THE EXECUTION OF THIS
AGREEMENT AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY.
ITEM 18. Counterparts. THIS AGREEMENT MAY BE EXECUTED IN TWO OR MORE
COUNTERPARTS, EACH OF WHICH SHALL CONSTITUTE AN ORIGINAL HEREOF AND ALL OF WHICH
TOGETHER SHALL CONSTITUTE ONE INSTRUMENT.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Voting and Disposition
Agreement to be duly executed on the date first above written.
RISK CAPITAL HOLDINGS, INC.
By: /s/ Mark D. Mosca
Name: Mark D. Mosca
Title: President and Chief Financial
Officer
RISK CAPITAL REINSURANCE COMPANY
By:
Name:
Title:
XL CAPITAL LTD
By: /s/ Paul S. Giordano
Name: Paul S. Giordano
Title: Executive Vice President, General
Counsel and Secretary
GARRISON INVESTMENTS INC.
By: /s/ Christopher V. Greetham
Name: Christopher V. Greetham
Title: Chief Investment Officer
EXHIBIT 99.8
LETTER AGREEMENT
Annuity and Life Re (Holdings), Inc.
March 2, 2000
Risk Capital Reinsurance Company
20 Horseneck Lane
Greenwich, CT 06830
Garrison Investments Inc.
c/o XL Capital Ltd
Cumberland House
One Victoria Street
Hamilton HM 11, Bermuda
Re: Securities Purchase Agreement
-----------------------------
Ladies and Gentlemen:
Reference is made to the Stock Repurchase Agreement (the "Repurchase
Agreement"), dated as of January 17, 2000, by and among XL Capital Ltd ("XL"),
Garrison Investments Inc., a wholly owned subsidiary of XL (the "XL Sub"), Risk
Capital Holdings, Inc. ("RCH") and Risk Capital Reinsurance Company, a wholly
owned subsidiary of RCH (the "RCH Sub"). Pursuant to the Repurchase Agreement,
the XL Sub is selling, and RCH is repurchasing from the XL Sub, 4,755,000 shares
of RCH common stock owned by the XL Sub (the "RCH Shares"). As part of the
consideration for the sale of the RCH Shares, RCH has agreed to transfer
1,418,440 common shares (the "ALRE Shares") of Annuity & Life Re (Holdings),
Inc. ("ALRE") and warrants to purchase 100,000 common shares of ALRE (the "ALRE
Warrants"). Reference is also made to the Letter Agreement, dated as of March 4,
1998, between the RCH Sub and ALRE, relating to the RCH Sub's right to designate
one individual to be nominated as a director of ALRE (the "Letter Agreement").
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, and intending to be legally bound hereby, the RCH
Sub and ALRE agree that the Letter Agreement will terminate upon the
effectiveness of this letter agreement.
<PAGE>
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, and intending to be legally bound hereby, and in
order to permit XL to account for its investment in ALRE using the equity method
of accounting under U.S. generally accepted accounting principles, XL and ALRE
agree that for so long as XL or any wholly owned subsidiary of XL, including the
XL Sub, beneficially owns, alone or in the aggregate, at least 500,000 common
shares of ALRE (including for this purpose shares issuable pursuant to the ALRE
Warrants), XL shall have the right to designate one individual for election to
the board of directors of ALRE. Upon timely receipt by ALRE of XL's written
exercise of such right, ALRE shall cause such individual to be nominated for
election as a director of ALRE at the next annual general meeting of ALRE
(provided no person previously selected by XL is a member of a class of
directors of ALRE not standing for election at such meeting). The initial
designee of XL shall be Brian M. O'Hara.
XL and ALRE agree that XL may assign its rights hereunder to the XL
Sub or any other wholly owned subsidiary of XL, in its sole discretion, and may
assign its right hereunder to any transferee of the required minimum number of
shares referred to above, and it may agree to exercise such right at the
direction of any other person, provided that it has received the prior written
consent of ALRE, such written consent not to be unreasonably withheld. XL
further agrees that it shall be reasonable for ALRE to withhold such prior
written consent in situations including, but not limited to, those in which XL
[agrees to assign its right to, or to act at the direction of, Lincoln National
Corporation, Transamerica Occidental Life Insurance Company, Reinsurance Group
of America Inc., General Re Corp., Life Re Corp., Employers Reassurance
Corporation, Swiss Reinsurance or Munich Reinsurance, or situations in which] XL
agrees to assign its right or to act at the direction of an entity where such
assignment or act would result in ALRE becoming a "controlled foreign
corporation" within the meaning set forth in the rules of the United States
Internal Revenue Code. As a condition of any such assignment or agreement to act
at the direction of any other person, such assignee or other person shall
execute a letter agreement indicating its intention to be bound by the terms of
this letter agreement (provided that no such letter agreement shall be required
in the event that XL assigns its rights to the XL Sub or any other wholly owned
subsidiary of XL, in which case XL shall remain liable for all obligations
hereunder).
This letter agreement shall become effective upon the closing of the
transactions contemplated by the Repurchase Agreement, which closing is expected
to occur on the date hereof.
Very truly yours,
ANNUITY AND LIFE RE (HOLDINGS), LTD.
--------------------------------
Name:
Title:
<PAGE>
Acknowledged by:
Risk Capital Reinsurance Company XL Capital Ltd
- -------------------------------- ---------------------------------
Name: Name:
Title: Title:
