exhibit42-yogaxcvragreem






Exhibit 4.2  EXECUTION VERSION      CONTINGENT VALUE RIGHTS AGREEMENT  By and Between  SIRIUSPOINT LTD.,  COMPUTERSHARE INC.  and  COMPUTERSHARE TRUST COMPANY, N.A.  Dated as of February 26, 2021      





 






    TABLE OF CONTENTS  Page  ARTICLE 1  DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION  SECTION 1.1  Definitions ......................................................................................................... 1  SECTION 1.2  Compliance and Opinions ................................................................................. 6  SECTION 1.3  Form of Documents Delivered to Rights Agent ............................................... 7  SECTION 1.4  Acts of Holders ................................................................................................. 8  SECTION 1.5  Notices, etc., to Rights Agent and Company .................................................... 8  SECTION 1.6  Notice to Holders; Waiver ................................................................................ 9  SECTION 1.7  Effect of Headings and Table of Contents ........................................................ 9  SECTION 1.8  Benefits of Agreement; No Assignment ........................................................... 9  SECTION 1.9  Governing Law; Jurisdiction ............................................................................. 9  SECTION 1.10  Legal Holidays ................................................................................................ 10  SECTION 1.11  Separability Clause.......................................................................................... 10  SECTION 1.12  Counterparts .................................................................................................... 10  SECTION 1.13  Calculations ..................................................................................................... 10  ARTICLE 2  CVR REGISTER  SECTION 2.1  No Certificate; Authentication ........................................................................ 11  SECTION 2.2  CVR Register .................................................................................................. 11  ARTICLE 3  THE CVRS  SECTION 3.1  Title and Payment Terms ................................................................................ 11  SECTION 3.2  Registrable Form ............................................................................................. 13  SECTION 3.3  Registration; Registration of Transfer ............................................................. 13  SECTION 3.4  Payments with Respect to CVRs .................................................................... 14  SECTION 3.5  Persons Deemed Owners................................................................................. 14  SECTION 3.6  CUSIP Numbers .............................................................................................. 14  ARTICLE 4  THE RIGHTS AGENT  SECTION 4.1  Certain Duties and Responsibilities ................................................................ 14  SECTION 4.2  Certain Rights of Rights Agent ....................................................................... 15  SECTION 4.3  Notice of Breach ............................................................................................. 17  SECTION 4.4  Not Responsible for Recitals or Issuance of CVRs ........................................ 17  SECTION 4.5  May Hold CVRs .............................................................................................. 17  SECTION 4.6  Bank Accounts ................................................................................................ 18  SECTION 4.7  Compensation and Reimbursement................................................................. 18  SECTION 4.8  Disqualification; Conflicting Interests ............................................................ 19  





 






  ii  SECTION 4.9  Corporate Rights Agent Required; Eligibility................................................. 19  SECTION 4.10  Resignation and Removal; Appointment of Successor ................................... 19  SECTION 4.11  Acceptance of Appointment of Successor ...................................................... 21  SECTION 4.12  Merger, Conversion, Consolidation or Succession to Business ...................... 21  ARTICLE 5  REPORTS BY THE RIGHTS AGENT AND COMPANY  SECTION 5.1  Communications to Holders ............................................................................ 21  SECTION 5.2  Reports by Rights Agent ................................................................................. 22  SECTION 5.3  Reports by Company ....................................................................................... 22  ARTICLE 6  AMENDMENTS  SECTION 6.1  Amendments without Consent of Holders ...................................................... 22  SECTION 6.2  Amendments with Consent of Holders ........................................................... 23  SECTION 6.3  Execution of Amendments .............................................................................. 23  SECTION 6.4  Effect of Amendments; Notice to Holders ...................................................... 24  ARTICLE 7  COVENANTS  SECTION 7.1  Payment of Amounts, if any, to Holders ......................................................... 24  SECTION 7.2  Maintenance of Office or Agency ................................................................... 24  SECTION 7.3  Money for CVR Payments to Be Held in Trust .............................................. 24  SECTION 7.4  Certain Purchases and Sales ............................................................................ 25  SECTION 7.5  Listing of CVRs .............................................................................................. 25  ARTICLE 8  REMEDIES OF THE RIGHTS AGENT AND HOLDERS IN THE EVENT OF BREACH  SECTION 8.1  Breach Defined; Waiver of Breach ................................................................. 26  SECTION 8.2  Collection by the Rights Agent; the Rights Agent May Prove Payment  Obligations ...................................................................................................... 27  SECTION 8.3  Application of Proceeds .................................................................................. 29  SECTION 8.4  Suits for Enforcement ..................................................................................... 29  SECTION 8.5  Restoration of Rights on Abandonment of Proceedings ................................. 30  SECTION 8.6  Limitations on Suits by Holders ...................................................................... 30  SECTION 8.7  Unconditional Right of Holders to Receive Payment ..................................... 30  SECTION 8.8  Powers and Remedies Cumulative; Delay or Omission Not Waiver of  Breach ............................................................................................................. 30  SECTION 8.9  Control by Holders .......................................................................................... 31  SECTION 8.10  Waiver of Past Breaches ................................................................................. 31  SECTION 8.11  Right of Court to Require Filing of Undertaking to Pay Costs ....................... 32    





 






    THIS CONTINGENT VALUE RIGHTS AGREEMENT, dated as of February 26, 2021  (this “CVR Agreement”), by and between SiriusPoint Ltd., a Bermuda exempted company  limited by shares (the “Company”) (f/k/a Third Point Reinsurance Ltd.), and Computershare Inc.,  a Delaware corporation (“Computershare”), and its wholly owned subsidiary, Computershare  Trust Company, N.A., a federally chartered trust company, as rights agent (collectively, the  “Rights Agent”), in favor of each person who from time to time holds one or more Contingent  Value Rights (the “CVRs” and, each individually, a “CVR”) to receive cash payments in the  amounts and subject to the terms and conditions set forth herein.  W I T N E S S E T H:  WHEREAS, this CVR Agreement is entered into pursuant to the Agreement and Plan of  Merger, dated as of August 6, 2020 (the “Merger Agreement”), by and among the Company,  Sirius International Insurance Group, Ltd., a Bermuda exempted company limited by shares (the  “Target”), and Yoga Merger Sub Limited, a Bermuda exempted company limited by shares and a  wholly owned Subsidiary of the Company (“Merger Sub”);  WHEREAS, pursuant to the terms and conditions set forth in the Merger Agreement and  the Statutory Merger Agreement (as such term is defined in the Merger Agreement), Merger Sub  merged with and into the Target, with the Target surviving such merger (the “Merger”), so that  immediately following the Merger, the Target was a wholly owned Subsidiary of the Company;  WHEREAS, the CVRs shall be issued in accordance with and pursuant to the terms and  conditions of the Merger Agreement;   WHEREAS, a registration statement on Form S-4 (No. 333-248989) (the “Registration  Statement”) with respect to the CVRs, among other things, has been prepared and filed by the  Company with the SEC (as defined below) and has become effective in accordance with the  Securities Act of 1933, as amended; and  WHEREAS, all things necessary have been done to make the CVRs, when authenticated  hereunder, the valid obligations of the Company and to make this CVR Agreement and valid  agreement of the Company, in accordance with their and its terms.  NOW, THEREFORE, in consideration of the foregoing premises and the consummation  of the transactions contemplated by the Merger Agreement, it is covenanted and agreed, for the  equal and proportionate benefit of all Holders (as defined below), as follows:  ARTICLE 1  DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION  SECTION 1.1 Definitions.  For all purposes of this CVR Agreement, except as  otherwise expressly provided or unless the context otherwise requires:  (a) the terms defined in this Article 1 have the meanings assigned to them in  this Article, and include the plural as well as the singular;  





 






  2  (b) all capitalized terms used in this CVR Agreement without definition shall  have the respective meanings ascribed to them in the Merger Agreement; and  (c) the words “herein,” “hereof” and “hereunder” and other words of similar  import refer to this CVR Agreement as a whole and not to any particular Article, Section  or other subdivision.  “Acceleration Payment” means an amount equal to (i) $13.73 minus (ii) (A) the volume  weighted average price of the Shares (as reported by Bloomberg L.P. or, if not reported therein,  in another authoritative source selected by the Company) measured over the Acceleration  Valuation Period multiplied by (B) 0.743.  “Acceleration Payment Date” shall have the meaning set forth in Section 8.1.  “Acceleration Valuation Period” means the fourteen (14) consecutive Trading Day period  immediately following the Breach Declaration Date.  “Act” shall have the meaning set forth in Section 1.4(a).  “Acting Holders” means, at any applicable time of determination, Holders of at least  twenty-five percent (25%) of the then Outstanding CVRs.  “Affiliate” means, as to any Person, any other Person that, directly or indirectly, controls,  or is controlled by, or is under common control with, such Person.  For this purpose, “control”  (including, with its correlative meanings, “controlled by” and “under common control with”)  shall mean the possession, directly or indirectly, of the power to direct or cause the direction of  management or policies of a Person, whether through the ownership of securities or partnership  or other ownership interests, by contract or otherwise.  “Automatic Extinguishment” shall have the meaning set forth in Section 3.1(j).  “Board of Directors” means the board of directors of the Company or any duly authorized  committee of that board.  “Board Resolution” means a copy of a resolution certified by a duly authorized officer of  the Company to have been duly adopted by the Board of Directors or a written consent signed by  the requisite directors serving on the Board of Directors and, in either case, that is in full force  and effect on the date of such certification, and delivered to the Rights Agent.  “Breach” shall have the meaning set forth in Section 8.1.  “Breach Declaration Date” shall have the meaning set forth in Section 8.1.  “Breach Interest Rate” means 4% per annum.   “Business Day” means any day except a Saturday, a Sunday or other day on which the  SEC or banks in the City of New York, New York or Hamilton, Bermuda are authorized or  required by Law to be closed.  





 






  3  “Code” means the U.S. Internal Revenue Code of 1986, as amended.  “Company” means the Person named as the “Company” in the first paragraph of this  CVR Agreement, until a successor Person shall have become such pursuant to the applicable  provisions of this CVR Agreement, and thereafter “Company” shall mean such successor Person.  “Company Request” or “Company Order” means a written request or order signed in the  name of the Company by a duly authorized officer of the Company, and delivered to the Rights  Agent.  “Corporate Trust Office” means the office of the Rights Agent at which at any particular  time its corporate trust business shall be principally administered, which office at the date of  execution of this CVR Agreement is located at 150 Royall Street, Canton, MA 02021.    “CVR” shall have the meaning set forth in the Preamble of this CVR Agreement.  “CVR Agreement” means this instrument as originally executed and as it may from time  to time be supplemented or amended pursuant to the applicable provisions hereof.  “CVR Payment Amount” means any Maturity Payment, Redemption Payment or  Acceleration Payment, as the case may be.  “CVR Payment Date” means the earliest to occur of the Maturity Payment Date, the  Redemption Date and the Acceleration Payment Date.  “CVR Register” shall have the meaning set forth in Section 2.2.  “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules  and regulations promulgated thereunder.  “Fundamental Event” means any of the following events: (i) the consummation of any  merger, consolidation or other similar business combination transaction the result of which is  that (x) any “person” or “group” within the meaning of Section 13(d) of the Exchange Act is, or  as a result of such transaction becomes, the beneficial owner, directly or indirectly, of more than  50% of the total voting power of the voting stock of the Company and (y) the beneficial owners  of more than 50% of the total voting power of the voting stock of the Company as of  immediately prior to such transaction, individually or in the aggregate, do not beneficially own,  directly or indirectly, a larger percentage of the total voting power of such voting stock than such  other “person” or “group”, or (ii) the sale, transfer, conveyance or other disposition (other than  by way of merger, consolidation or transfer of the Company’s voting stock), to any “person” or  “group” within the meaning of Section 13(d) of the Exchange Act, of all or substantially all of  the assets of the Company.  “Governmental Authority” means any government, court, regulatory or administrative  agency, commission or authority or other legislative, executive or judicial governmental entity,  whether federal, national, provincial, state, local or multinational, including, for the avoidance of  doubt, Lloyd’s.  





 






  4  “Holder” means a Person in whose name a CVR is registered in the CVR Register.  “Law” means any federal, national, provincial, state, local or multinational law, statute,  code, rule, regulation, injunction, order, judgment, ruling, decree or writ of any Governmental  Authority.  “Lloyd’s” means the Society and Corporation of Lloyd’s incorporated under the Lloyd’s  Acts 1871 to 1982 (including the council constituted by the Lloyd’s Act 1982 and any delegate  or person through whom the council is authorized to act).  “Majority Holders” means, at the time of determination, Holders of at least a majority of  the Outstanding CVRs.  “Market Disruption Event” means (a) a failure by the primary U.S. national or regional  securities exchange or market on which the Shares are listed or admitted for trading to open for  trading during its regular trading session or (b) the occurrence or existence prior to 1:00 p.m.,  New York City time, on any Trading Day for the Shares for more than one half-hour period in  the aggregate during regular trading hours of any suspension or limitation imposed on trading  (by reason of movements in price exceeding limits permitted by the relevant stock exchange or  otherwise) in the Shares or in any options contracts or futures contracts traded on any U.S.  exchange relating to the Shares.  “Maturity Date” means the date that is twenty-four (24) months from the Effective Time.  “Maturity Payment” means an amount equal to (i) $13.73 minus (ii) (A) the volume  weighted average price of the Shares (as reported by Bloomberg L.P. or, if not reported therein,  in another authoritative source selected by the Company) measured over the Maturity Valuation  Period multiplied by (B) 0.743.  “Maturity Payment Date” shall have the meaning set forth in Section 3.1(c).  “Maturity Valuation Period” means the fourteen (14) consecutive Trading Day period  immediately preceding the Maturity Date.  “Merger” shall have the meaning set forth in the Recitals of this CVR Agreement.  “Merger Agreement” shall have the meaning set forth in the Recitals of this CVR  Agreement.  “Merger Sub” shall have the meaning set forth in the Recitals of this CVR Agreement.  “NYSE” means the New York Stock Exchange.  “Officer’s Certificate” when used with respect to the Company means a certificate signed  by a duly authorized officer of the Company.  “Opinion of Counsel” means a written opinion of counsel, who may be General Counsel  for the Company.  





 






  5  “Outstanding”, when used with respect to CVRs (“Outstanding CVRs”), means, as of the  date of determination, all CVRs theretofore authenticated, issued and outstanding under this  CVR Agreement, except: (i) CVRs theretofore cancelled by the Rights Agent; and (ii) from and  after the CVR Payment Date, CVRs, or portions thereof, for whose payment in cash in the  necessary amount has been theretofore deposited by or on behalf of the Company with the Rights  Agent or any Paying Agent (other than the Company) in trust or set aside and segregated in trust  by the Company (if the Company shall act as its own Paying Agent) for the Holders; provided,  however, that in determining whether the Holders of the requisite Outstanding CVRs have given  any request, demand, authorization, direction, consent, waiver or other action hereunder, CVRs  owned by the Company or any Affiliate of the Company, whether held as treasury securities or  otherwise, shall be disregarded and deemed not to be Outstanding, except that for the purposes of  determining whether the Rights Agent shall be protected in relying on any such request, demand,  authorization, direction, consent, waiver or other action, only CVRs that a Responsible Officer of  the Rights Agent actually knows are so owned shall be so disregarded.  “Party” shall mean the Rights Agent and the Company, as applicable.  “Paying Agent” means any Person authorized by the Company to pay the amounts  determined pursuant to Section 3.1, if any, on any CVRs on behalf of the Company, which shall  initially be Computershare.  “Person” means an individual, corporation, limited liability company, partnership, joint  venture, association, trust, unincorporated organization or any other entity, including a  Governmental Authority.  “Redemption Date” means the date that is the fifth (5th) Business Day immediately  following the last day of the Redemption Valuation Period.  “Redemption Notice” shall have the meaning set forth in Section 3.1(d).  “Redemption Payment” means an amount equal to (i) the discounted present value (using  a 2.75% annual discount rate applied consistently for the relevant period) of $13.73, discounted  from the Maturity Date to the last day of the Redemption Valuation Period, minus (ii) (A) the  volume weighted average price of the Shares (as reported by Bloomberg L.P. or, if not reported  therein, in another authoritative source selected by the Company) measured over the Redemption  Valuation Period multiplied by (B) 0.743.  “Redemption Valuation Period” means the fourteen (14) consecutive Trading Day period  immediately following the date of the Redemption Notice.  “Registrar” shall have the meaning set forth in Section 2.2.  “Registration Statement” shall have the meaning set forth in the Recitals of this CVR  Agreement.  “Responsible Officer” when used with respect to the Rights Agent means any officer  assigned to the Corporate Trust Office and also means, with respect to any particular corporate  





 






  6  trust matter, any other officer of the Rights Agent to whom such matter is referred because of his  or her knowledge of and familiarity with the particular subject.  “Rights Agent” means the Person named as the “Rights Agent” in the first paragraph of  this CVR Agreement, until a successor Rights Agent shall have become such pursuant to the  applicable provisions of this CVR Agreement, and thereafter “Rights Agent” shall mean such  successor Rights Agent.  “SEC” means the Securities and Exchange Commission, as from time to time constituted,  created under the Exchange Act.  “Shares” means the Common Shares, $0.10 par value per share, of the Company.  “Subsidiary” means, with respect to any Person, any corporation, limited liability  company, partnership, association, trust or other entity of which securities or other ownership  interests representing more than 50% of the equity or more than 50% of the ordinary voting  power (or, in the case of a partnership, more than 50% of the general partnership interests) are, as  of such date, owned by such Person or one or more Subsidiaries of such Person or by such  Person and one or more Subsidiaries of such Person.  “Trading Day” means, except for purposes of determining any volume weighted average  price as reported during any specified period as set forth below, a day on which (i) trading in the  Shares (or other security for which a closing sale price must be determined) generally occurs on  the principal U.S. national or regional securities exchange on which the Shares (or such other  security) are then listed or, if the Shares are (or such other security is) not then listed on a U.S.  national or regional securities exchange, on the principal other market on which the Shares are  (or such other security is) then traded and (ii) a Market Price for the Shares (or closing sale price  for such other security) is available on such securities exchange or market; provided that if the  Shares are (or such other security is) not so listed or traded, “Trading Day” means a Business  Day; and provided, further, that for purposes only of determining any volume weighted average  price as reported during any specified period, “Trading Day” means a day on which (x) there is  no Market Disruption Event and (y) trading in the Shares generally occurs on the principal other  U.S. national or regional securities exchange on which the Shares are then listed or, if the Shares  are not then listed on a U.S. national or regional securities exchange, on the principal other  market on which the Shares are then listed or admitted for trading, except that if the Shares are  not so listed or admitted for trading, “Trading Day” means a Business Day.  “Voting Securities” means securities or other interests having voting power, or the right,  to elect or appoint directors, or any Persons performing similar functions, irrespective of whether  or not stock or other interests of any other class or classes shall have or might have voting power  or any right by reason of the happening of any contingency.  SECTION 1.2 Compliance and Opinions.  (a) Upon any application or request by the Company to the Rights Agent to  take any action under any provision of this CVR Agreement, if requested by the Rights  Agent, the Company shall furnish to the Rights Agent (i) an Officer’s Certificate stating  that, in the opinion of the signor, all conditions precedent, if any, provided for in this  





 






  7  CVR Agreement relating to the proposed action have been complied with and (ii) an  Opinion of Counsel stating, subject to customary exceptions, that in the opinion of such  counsel all such conditions precedent, if any, have been complied with, except that, in the  case of any such application or request as to which the furnishing of such documents is  specifically required by any provision of this CVR Agreement relating to such particular  application or request, no additional certificate or opinion need be furnished.  (b) Every certificate or opinion with respect to compliance with a condition or  covenant provided for in this CVR Agreement shall include:  (i) a statement that each  individual signing such certificate or opinion has read such covenant or condition and the  definitions herein relating thereto; (ii) a brief statement as to the nature and scope of the  examination or investigation upon which the statements or opinions contained in such  certificate or opinion are based; (iii) a statement that, in the opinion of each such  individual, he or she has made such examination or investigation as is necessary to enable  him or her to express an informed opinion as to whether or not such covenant or  condition has been complied with; and (iv) a statement as to whether, in the opinion of  each such individual, such condition or covenant has been complied with.  SECTION 1.3 Form of Documents Delivered to Rights Agent.  (a) In any case where several matters are required to be certified by, or  covered by an opinion of, any specified Person, it is not necessary that all such matters be  certified by, or covered by the opinion of, only one such Person, or that they be so  certified or covered by only one document, but one such Person may certify or give an  opinion with respect to some matters and one or more other such Persons as to other  matters, and any such Person may certify or give an opinion as to such matters in one or  several documents.  (b) Any certificate or opinion of an officer of the Company may be based,  insofar as it relates to legal matters, upon a certificate or opinion of, or representations by,  counsel, unless such officer knows, or in the exercise of reasonable care should know,  that the certificate or opinion or representations with respect to the matters upon which  his or her certificate or opinion is based are erroneous.  Any such certificate or Opinion  of Counsel may be based, insofar as it relates to factual matters, upon a certificate or  opinion of, or representations by, an officer or officers of the Company stating that the  information with respect to such factual matters is in the possession of the Company,  unless such counsel knows, or in the exercise of reasonable care should know, that the  certificate or opinion or representations with respect to such matters are erroneous.  (c) Where any Person is required to make, give or execute two or more  applications, requests, consents, certificates, statements, opinions or other instruments  under this CVR Agreement, they may, but need not, be consolidated and form one  instrument.  





 






  8  SECTION 1.4 Acts of Holders.  (a) Any request, demand, authorization, direction, notice, consent, waiver or  other action provided by this CVR Agreement to be given or taken by Holders may be  embodied in and evidenced by one or more instruments of substantially similar tenor  signed by such Holders in person or by an agent duly appointed in writing; and, except as  herein otherwise expressly provided, such action shall become effective when such  instrument or instruments are delivered to the Rights Agent and, where it is hereby  expressly required, to the Company.  Such instrument or instruments (and the action  embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of  the Holders signing such instrument or instruments.  Proof of execution of any such  instrument or of a writing appointing any such agent shall be sufficient for any purpose of  this CVR Agreement and (subject to Section 4.1) conclusive in favor of the Rights Agent  and the Company, if made in the manner provided in this Section 1.4.  The Company  may set a record date for purposes of determining the identity of Holders entitled to vote  or consent to any action by vote or consent authorized or permitted under this CVR  Agreement, which date shall be no greater than sixty (60) days and no less than ten (10)  days prior to the date of such vote or consent to any action by vote or consent authorized  or permitted by this CVR Agreement.  (b) The fact and date of the execution by any Person of any such instrument or  writing may be proved in any reasonable manner which the Rights Agent deems  sufficient.  (c) The ownership of CVRs shall be proved by the CVR Register.  Neither the  Company nor the Rights Agent nor any agent of the Company or the Rights Agent shall  be affected by any notice to the contrary.  (d) At any time prior to (but not after) the evidencing to the Rights Agent, as  provided in this Section 1.4, of the taking of any action by the Holders of the CVRs  specified in this CVR Agreement in connection with such action, any Holder of a CVR  may, by filing written notice at the Corporate Trust Office and upon proof of holding as  provided in this Section 1.4, revoke such action so far as concerns such CVR.  Any  request, demand, authorization, direction, notice, consent, waiver or other action by the  Holder of any CVR shall bind every future Holder of the same CVR or the Holder of  every CVR issued upon the registration of transfer thereof in respect of anything done,  suffered or omitted to be done by the Rights Agent, any Paying Agent or the Company in  reliance thereon.   SECTION 1.5 Notices, etc., to Rights Agent and Company.  Any request, demand,  authorization, direction, notice, consent, waiver or Act of Holders or other document provided or  permitted by this CVR Agreement to be made upon, given or furnished to, or filed with:  (a) the Rights Agent by any Holder or by the Company shall be sufficient for  every purpose hereunder if made, given, furnished or filed, in writing, to or with the  Rights Agent at its Corporate Trust Office; or  





 






  9  (b) the Company by the Rights Agent or by any Holder shall be sufficient for  every purpose hereunder if in writing and mailed, first-class postage prepaid, to the  Company addressed to it at Point House, 3 Waterloo Lane, Pembroke HM 08 Bermuda,  or at any other address previously furnished in writing to the Rights Agent by the  Company.  SECTION 1.6 Notice to Holders; Waiver.  (a) Where this CVR Agreement provides for notice to Holders of any event,  such notice shall be sufficiently given (unless otherwise herein expressly provided) if in  writing and mailed, first-class postage prepaid, to each Holder affected by such event, at  the Holder’s address as it appears in the CVR Register, not later than the latest date, and  not earlier than the earliest date, prescribed for the giving of such notice, if any.  In any  case where notice to Holders is given by mail, neither the failure to mail such notice, nor  any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of  such notice with respect to other Holders.  Where this CVR Agreement provides for  notice in any manner, such notice may be waived in writing by the Person entitled to  receive such notice, either before or after the event, and such waiver shall be the  equivalent of such notice.  Waivers of notice by Holders shall be filed with the Rights  Agent, but such filing shall not be a condition precedent to the validity of any action  taken in reliance upon such waiver.  (b) In case by reason of the suspension of regular mail service or by reason of  any other cause, it shall be impracticable to mail notice of any event as required by any  provision of this CVR Agreement, then any method of giving such notice as shall be  satisfactory to the Rights Agent shall be deemed to be a sufficient giving of such notice.  SECTION 1.7 Effect of Headings and Table of Contents.  The Article and Section  headings herein, and the Table of Contents, are for convenience only and shall not affect the  construction hereof.  SECTION 1.8 Benefits of Agreement; No Assignment.  Nothing in this CVR  Agreement, express or implied, shall give to any Person (other than the Parties hereto and their  successors and permitted assigns and, subject to Section 3.1(e) and 8.6, the Holders) any benefit  or any legal or equitable right, remedy or claim under this CVR Agreement or under any  covenant or provision herein contained.  All covenants, provisions and agreements in this CVR  Agreement by or for the benefit of the Company, the Rights Agent or the Holders shall bind and  inure to the benefit of their respective successors, assigns, heirs and personal representatives,  whether so expressed or not.  Except as provided in Section 4.12, neither this CVR Agreement  nor any of the rights, interests or obligations hereunder shall be assigned, in whole or in part, by  either of the Parties without the prior written consent of the other Party.  SECTION 1.9 Governing Law; Jurisdiction.  (a) This CVR Agreement and the CVRs shall in all respects be governed by,  and construed and enforced in accordance with, the Laws of the State of New York  applicable to agreements made and to be performed entirely within such state without  





 






  10  giving effect to any conflicts of law principles of such state that might refer the  governance, construction or interpretation of such agreements to the Laws of another  jurisdiction.  (b) All causes of action arising out of or relating to the interpretation and  enforcement of the provisions of this CVR Agreement and the CVRs shall be heard and  determined in the courts of the State of New York sitting in the County of New York, the  United States District Court for the Southern District of New York, and, in each case, any  appellate court therefrom.  The Parties hereby irrevocably submit to the exclusive  jurisdiction and venue of such courts in any such actions and irrevocably waive the  defense of an inconvenient forum or lack of jurisdiction to the maintenance of any such  action.  The consents to jurisdiction and venue set forth in this Section 1.9(b) shall not  constitute general consents to service of process in the State of New York and shall have  no effect for any purpose except as provided in this paragraph and shall not be deemed to  confer rights on any Person other than the Parties.  Each Party agrees that service of  process upon such Party in any cause of action arising out of or relating to this CVR  Agreement shall be effective if served upon them by any manner authorized by the Laws  of the State of New York.  The Parties agree that a final judgment in any such cause of  action shall be conclusive and may be enforced in other jurisdictions by suit on the  judgment or in any other manner provided by applicable Law; provided, however, that  nothing contained in the foregoing shall restrict any Party’s rights to seek any post- judgment relief regarding, or any appeal from, a final trial court judgment.  SECTION 1.10 Legal Holidays.  In the event that the CVR Payment Date shall not be  a Business Day, then (notwithstanding any provision of this CVR Agreement to the contrary)  payment on the CVRs need not be made on such date, but may be made, without the accrual of  any interest thereon, on the next succeeding Business Day with the same force and effect as if  made on the CVR Payment Date.  SECTION 1.11 Separability Clause.  In the event any provision in this CVR  Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of  the remaining provisions shall not in any way be affected or impaired thereby; provided,  however, that if any excluded provision shall adversely affect the rights, immunities, liabilities,  duties or obligations of the Rights Agent in any material respect (after giving effect to any such  similar provision), the Rights Agent shall be entitled to resign immediately upon written notice  to the Company.  SECTION 1.12 Counterparts.  This CVR Agreement shall be signed in any number of  facsimile or original counterparts with the same effect as if the signatures to each counterpart  were upon a single instrument, and all such counterparts together shall be deemed an original of  this CVR Agreement.  Facsimile signatures (or .pdf copy via e-mail attachment) shall constitute  original signatures for all purposes of this CVR Agreement.  SECTION 1.13 Calculations.  All calculations or determinations made under this CVR  Agreement by the Company or the Board of Directions shall be reasonably computed or made by  the Company or the Board of Directors, as the case may be, in good faith.  The Rights Agent  





 






  11  shall have no duty or obligation to investigate or confirm whether the Company’s calculations  are accurate or correct.   ARTICLE 2  CVR REGISTER  SECTION 2.1 No Certificate; Authentication.  (a) The CVRs shall not be evidenced by a certificate or other physical  instrument.  (b) No CVR shall be entitled to any benefit under this CVR Agreement or be  valid or obligatory for any purposes unless it shall have been authenticated by the Rights  Agent.  At any time and from time to time after the execution and delivery of this CVR  Agreement, the Company may instruct the Rights Agent, pursuant to a Company Order,  to authenticate additional CVRs under this CVR Agreement in accordance with the terms  of this CVR Agreement and such Company Order.  SECTION 2.2 CVR Register.  The Rights Agent shall keep at the Corporate Trust  Office a register (the register maintained in such office and in any other office or agency  designated pursuant to Section 7.2 being herein sometimes referred to as the “CVR Register”)  for purposes of identifying the Holders of CVRs and in which, subject to such reasonable  procedures and requirements as it may prescribe, the Rights Agent shall provide for the  registration of CVRs and of transfers of CVRs on its books and records in book-entry form.  The  Rights Agent is hereby initially appointed “Registrar” for the purpose of registering CVRs and  transfers of CVRs as herein provided.  ARTICLE 3  THE CVRS  SECTION 3.1 Title and Payment Terms.  (a) The aggregate number of CVRs that may be Outstanding under this CVR  Agreement is limited to a number equal to 10,103,004.  CVRs may be issued in fractional  increments of 0.01.  From and after the Effective Time, the Company shall not be  permitted to issue any CVRs, except as provided and in accordance with the terms and  conditions of the Merger Agreement or as otherwise expressly permitted by this CVR  Agreement.  (b) The CVRs shall be known and designated as the “Series A Contingent  Value Rights” of the Company and shall rank equally with all unsecured debt obligations  of the Company and, for the avoidance of doubt, rank senior to the Shares and any other  equity securities (including any preference shares) of the Company, in each case as to the  distribution of assets on any winding up or liquidation of the Company by operation of  Law or contract.  (c) On the fifth (5th) Business Day following the Maturity Date (the  “Maturity Payment Date”), the Company shall (i) deposit with the Rights Agent an  





 






  12  amount in cash equal to the Maturity Payment multiplied by the number of Outstanding  CVRs and (ii) cause the Rights Agent to pay to each Holder, in cash, for each  Outstanding CVR held by such Holder, an amount equal to the Maturity Payment.  All  determinations with respect to the calculation of the Maturity Payment shall be  reasonably made by the Company in good faith, and such determinations shall be binding  on the Holders absent gross negligence, willful misconduct or manifest error.  Not later  than the third (3rd) Business Day after the Maturity Date, the Company shall (x) prepare  and file with the Rights Agent a certificate setting forth such determinations and facts  accounting for such determinations and (y) cause the Rights Agent to mail such  certificate to the Holders, by first-class mail, postage prepaid, as their names and  addresses appear in the CVR Register.  The Rights Agent shall be entitled to rely on any  such certificate and on any calculation or statement therein contained and shall have no  duty or liability with respect to, and shall not be deemed to have knowledge of any such  calculation or any such event unless and until it shall have received such certificate.  (d) The Company (i) may, at its option, and (ii) shall, in connection with a  Fundamental Event, redeem all, but not less than all, of the then Outstanding CVRs by  causing the Rights Agent to pay to each Holder, in cash, for each Outstanding CVR held  by such Holder, an amount, as determined by the Company, equal to the Redemption  Payment, payable to such Holder on the Redemption Date (which, in the case of a  redemption in connection with a Fundamental Event, shall in no event be later than the  date of consummation of such Fundamental Event).  The Company shall cause the Rights  Agent to give notice of any such redemption (the “Redemption Notice”), by first-class  mail, postage prepaid, to all Holders of CVRs as their names and addresses appear in the  CVR Register, which Redemption Notice shall specify the Redemption Date.  Concurrently with the delivery of any such Redemption Notice, other than in the case of a  redemption in connection with a Fundamental Event, the Company shall also make a  public announcement with respect to any such redemption and shall, if required by Law,  file a Current Report on Form 8-K with respect to such redemption. All determinations  with respect to the calculation of the Redemption Payment shall be reasonably made by  the Company in good faith, and such determinations shall be binding on the Holders  absent gross negligence, willful misconduct or manifest error.  Not later than the third  (3rd) Business Day after the Redemption Date, the Company shall (x) prepare and file  with the Rights Agent a certificate setting forth such determinations and facts accounting  for such determinations and (y) cause the Rights Agent to mail such certificate to the  Holders, by first-class mail, postage prepaid, as their names and addresses appear in the  CVR Register.  The Rights Agent shall be entitled to rely on any such certificate and on  any adjustment or statement therein contained and shall have no duty or liability with  respect to, and shall not be deemed to have knowledge of any such determination or any  such event unless and until it shall have received such certificate.  (e) The Holders, by acceptance of CVRs, agree that no joint venture,  partnership or other fiduciary relationship is created hereby or by the CVRs.  (f) Other than in the case of interest on amounts due and payable after the  occurrence of a Breach, no interest or dividends shall accrue on any amounts payable in  respect of the CVRs.  





 






  13  (g) The Parties hereto agree to treat the CVRs issued pursuant to this CVR  Agreement in connection with the Merger Agreement for all income tax purposes as  (i) consideration for the shares of Target that is received in a closed transaction as of the  time of the closing of the Merger based on the fair market value of the CVRs as of that  date, (ii) as a financial instrument that does not constitute indebtedness, and (iii) no Party  hereto will take any position to the contrary on any tax return or for other tax purposes  except as required by applicable Law.  (h) No Holder shall, solely by virtue of holding CVRs, be entitled to any  rights of a holder of any Voting Securities or other equity security or other ownership  interest of the Company, in any constituent company to the Merger or in any of such  companies’ Affiliates or other subsidiaries, either at Law or in equity.  (i) Except as provided in this CVR Agreement, none of the Company or any  of its Affiliates shall have any right to set off any amounts owed or claimed to be owed  by any Holder to any of them against such Holder’s CVRs or any CVR Payment Amount  or other amount payable to such Holder in respect of such CVRs.  (j) In the event that (i) (A) all of the CVRs shall have become due and  payable pursuant to the terms hereof, (B) all disputes with respect to amounts payable to  the Holders brought pursuant to the terms and conditions of this CVR Agreement have  been resolved, and (C) the Company has paid or caused to be paid or deposited with the  Rights Agent all amounts payable to the Holders under this CVR Agreement or (ii) the  volume weighted average price of the Shares (as reported by Bloomberg L.P. or, if not  reported therein, in another authoritative source selected by the Company in its sole  discretion) is greater than $18.50 per Share over any fourteen (14) consecutive Trading  Day period after the Effective Time and prior to the CVR Payment Date (such event  described in this clause (ii), the “Automatic Extinguishment”), then this CVR Agreement  shall cease to be of further effect and shall be deemed satisfied and discharged.   Notwithstanding the satisfaction and discharge of this CVR Agreement, the obligations of  the Company under Section 4.7(c) shall survive.  (k) Notwithstanding anything else to the contrary herein, the Company and  the Paying Agent shall be entitled to deduct and withhold from any amount payable  pursuant to this CVR Agreement such amounts as they reasonably determine may be  required to be deducted and withheld under applicable tax law.  Amounts withheld  pursuant to this Section 3.1(k) and timely paid to the appropriate tax authority shall be  treated for all purposes of this CVR Agreement as having been paid to the Person in  respect of which such deduction and withholding was made.  SECTION 3.2 Registrable Form.  The CVRs shall be issuable only in registered form.  SECTION 3.3 Registration; Registration of Transfer.  (a) Every notice of transfer delivered by a Holder to the Registrar to transfer a  CVR must be in writing and accompanied by a written instrument of transfer and other  documentation in form reasonably satisfactory to the Registrar, duly executed by such  





 






  14  Holder or a duly appointed legal representative, personal representative or survivor of  such Holder.  Upon receipt of such written notice, the Registrar shall register the transfer  of the CVRs subject to such notice in the CVR Register on its books and records in book- entry form.  (b) All duly transferred CVRs registered in the CVR Register shall be the  valid obligations of the Company, evidencing the same rights, and shall entitle the  transferee to the same benefits under this CVR Agreement, as those held by the  transferor.  (c) No service charge shall be made for any registration of transfer of CVRs,  but the Company may require payment of a sum sufficient to cover any documentary,  stamp or similar tax or other similar governmental charge payable in connection with any  registration of transfer of CVRs.  SECTION 3.4 Payments with Respect to CVRs.  Payment of any amounts pursuant to  the CVRs shall be made in such coin or currency of the United States of America as at the time is  legal tender for the payment of public and private debts.  The Rights Agent may, at its option,  pay such amounts by wire transfer or check payable in such money.  SECTION 3.5 Persons Deemed Owners.  Prior to the time of any notice of transfer is  delivered pursuant to Section 3.3(a) with respect to any CVR, the Company, the Rights Agent,  the Registrar and any of their respective agents may treat the Person in whose name any CVR is  registered in the CVR Register as the owner of such CVR for the purpose of receiving payment  on such CVR and for all other purposes whatsoever, whether or not such CVR be overdue, and  none of the Company, the Rights Agent, the Registrar nor any of their respective agents shall be  affected by any other notice to the contrary.  SECTION 3.6 CUSIP Numbers.  The Company in issuing the CVRs may use  “CUSIP” numbers (if then generally in use), and, if so, the Rights Agent shall use “CUSIP”  numbers in any notice provided for in this CVR Agreement as a convenience to Holders;  provided that any such notice may state that no representation is made as to the correctness of  such numbers as contained in any such notice, and any such notice shall not be affected by any  defect in or omission of such numbers.  The Company shall promptly notify the Rights Agent in  writing of any change in the “CUSIP” numbers.  ARTICLE 4  THE RIGHTS AGENT  SECTION 4.1 Certain Duties and Responsibilities.  (a) The Rights Agent undertakes to perform such duties and only such duties  as are specifically set forth in this CVR Agreement and no implied covenants shall be  read into this CVR Agreement against the Rights Agent.  (b) In the absence of gross negligence, bad faith or willful misconduct on its  part (in each case as determined by a final, non appealable order of a court of competent  jurisdiction), the Rights Agent may conclusively rely, as to the truth of the statements and  





 






  15  the correctness of the opinions expressed therein, upon certificates or opinions furnished  to the Rights Agent which conform to the requirements of this CVR Agreement; but in  the case of any such certificates or opinions which by any provision hereof are  specifically required to be furnished to the Rights Agent, the Rights Agent shall be under  a duty to examine the same to determine whether or not they conform to the requirements  of this CVR Agreement.  (c) No provision of this CVR Agreement shall be construed to relieve the  Rights Agent from liability for its own gross negligence, bad faith or willful misconduct  (in each case as determined by a final, non-appealable order of a court of competent  jurisdiction); and the Rights Agent shall not be liable for any error of judgment made by a  Responsible Officer of the Rights Agent, unless it shall be proved that the Rights Agent  acted with, or failed to act due to, its own gross negligence, bad faith or willful  misconduct (in each case as determined by a final, non-appealable order of a court of  competent jurisdiction).  (d) Whether or not therein expressly so provided, every provision of this CVR  Agreement relating to the conduct or affecting the liability of or affording protection to  the Rights Agent shall be subject to the provisions of this Section 4.1.  SECTION 4.2 Certain Rights of Rights Agent.  Subject to the provisions of Section  4.1:  (a) the Rights Agent may rely and shall be protected in acting or refraining  from acting upon any resolution, certificate, statement, instrument, opinion, report,  Company Request, Company Order, Board Resolution, notice, request, direction,  consent, order, bond, debenture, note, other evidence of indebtedness or other paper or  document reasonably believed by it to be genuine and to have been signed or presented  by the proper party or parties;  (b) any request or direction or order of the Company mentioned herein shall  be sufficiently evidenced by a Company Request or Company Order and any resolution  of the Board of Directors may be sufficiently evidenced by a Board Resolution.  The  Rights Agent shall not be liable and shall be indemnified by the Company for any action  taken or omitted by Rights Agent in reliance upon any Company Request or Company  Order and any resolution of the Board of Directors.  The Rights Agent shall not be held to  have notice of any change of authority of any person, until receipt of written notice  thereof from the Company;  (c) whenever in the administration of this CVR Agreement the Rights Agent  shall deem it desirable that a matter be proved or established prior to taking, suffering or  omitting any action hereunder, the Rights Agent (unless other evidence be herein  specifically prescribed) may, in the absence of gross negligence, bad faith or willful  misconduct on its part (in each case as determined by a final non-appealable order of a  court of competent jurisdiction), rely upon an Officer’s Certificate or an Opinion of  Counsel delivered to the Rights Agent;  





 






  16  (d) the Rights Agent may consult with counsel and the advice of such counsel  or any Opinion of Counsel shall be full and complete authorization and protection in  respect of any action taken, suffered or omitted by it hereunder in the absence of bad faith  in reliance on and in accordance with such advice or Opinion of Counsel;  (e) notwithstanding any provision contained herein, the Rights Agent shall act  hereunder solely as agent for the Company, and its duties shall be determined solely by  the express provisions hereof (and no duties or obligations shall be inferred or implied).   The Rights Agent shall not assume any obligations or relationship of agency or trust with  any of the Holders, unless it shall elect to do so in its sole discretion;  (f) the Rights Agent shall not be obligated to expend or risk its own funds or  to take any action that it believes would expose or subject it to expense or liability or to a  risk of incurring expense or liability, unless it has been furnished with assurances of  repayment or indemnity satisfactory to it;  (g) the Rights Agent shall not have any duty or responsibility in the case of  the receipt of any written demand from any Holder with respect to any action or default  by the Company, including, without limiting the generality of the foregoing, any duty or  responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to  make any demand upon the Company;  (h) the Rights Agent may execute any of the powers hereunder or perform any  duties hereunder either directly or by or through agents or attorneys and the Rights Agent  shall not be responsible for any misconduct or negligence on the part of any agent or  attorney absent gross negligence, bad faith or willful misconduct (each as determined by  a final non-appealable judgment of a court of competent jurisdiction) in the selection and  continued employment thereof;  (i) the rights, privileges, protections, immunities and benefits given to the  Rights Agent, including, without limitation, its right to be indemnified, are extended to,  and shall be enforceable by, the Paying Agent and the Registrar, in each of its capacities  hereunder, and each agent, custodian and other Person employed to act hereunder;  (j) certain of the Rights Agent’s duties hereunder may be performed by the  Paying Agent or Registrar;  (k) the Rights Agent shall not be deemed to have notice of any Breach or  other breach under this CVR Agreement unless a Responsible Officer of the Rights  Agent shall have received written notice from the Company or the Acting Holders in  accordance with the terms of this CVR Agreement or has actual knowledge of any event  or condition that is, or after notice or lapse of time or both would become, a Breach;  (l) the Rights Agent shall not be required to give any bond or surety in  respect of the performance of its powers and duties hereunder;  





 






  17  (m) the permissive rights of the Rights Agent enumerated in this CVR  Agreement shall not be construed as duties hereunder and the Rights Agent shall be liable  for its gross negligence, bad faith or willful misconduct;  (n) the Rights Agent shall be liable hereunder only for its own gross  negligence, willful misconduct or bad faith (each as determined by a court of competent  jurisdiction in final and non-appealable decision);  (o) notwithstanding anything contained herein to the contrary, the Rights  Agent’s aggregate liability (other than liability arising from the Right Agent’s gross  negligence, willful misconduct or bad faith, as determined by a final non-appealable  order of a court of competent jurisdiction) during any term of this CVR Agreement with  respect to, arising from, or arising in connection with this CVR Agreement, or from all  services provided or omitted to be provided under this CVR Agreement, whether in  contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid  hereunder by the Company to the Rights Agent as fees and charges, but not including  reimbursable expenses, during the twelve (12) months immediately preceding the event  for which recovery from Rights Agent is being sought.  Neither party to this CVR  Agreement shall be liable to the other party for any consequential, indirect, special or  incidental damages under any provisions of this CVR Agreement or for any  consequential, indirect, punitive, special or incidental damages arising out of any act or  failure to act hereunder even if that party has been advised of or has foreseen the  possibility of such damages; and  (p) the provisions of this Section 4.2 and Section 4.7 shall survive the  expiration of the CVRs, the termination of this CVR Agreement and the resignation,  replacement or removal of the Rights Agent.  SECTION 4.3 Notice of Breach.  If a breach occurs hereunder with respect to the  CVRs, the Rights Agent shall give the Holders notice of any such breach of which the Rights  Agent has actual knowledge and to the extent applicable within thirty (30) days after the  occurrence of such breach, unless such breaches shall have been cured before the giving of such  notice (the term “breach” for the purposes of this Section 4.3 being hereby defined to mean any  event or condition which is, or with notice or lapse of time or both would become, a Breach);  provided that, except in the case of a failure to pay the amounts payable in respect of any of the  CVRs, the Rights Agent shall be protected in withholding such notice if and so long as a  Responsible Officer of the Rights Agent, in the absence of bad faith, reasonably determines that  the withholding of such notice is in the best interests of the Holders.  SECTION 4.4 Not Responsible for Recitals or Issuance of CVRs.  The Rights Agent  shall not be accountable for the Company’s use of the CVRs.  The recitals contained herein and  in the CVRs shall be taken as the statements of the Company, and the Rights Agent assumes no  responsibility for their correctness.  The Rights Agent makes no representations as to the validity  or sufficiency of this CVR Agreement or of the CVRs.  SECTION 4.5 May Hold CVRs.  The Rights Agent, any Paying Agent, Registrar or  any other agent of the Company, in its individual or any other capacity, may become the owner  





 






  18  or pledgee of CVRs, and, subject to Sections 4.1, and 4.8, may otherwise deal with the Company  with the same rights it would have if it were not Rights Agent, Paying Agent, Registrar or such  other agent.  SECTION 4.6 Bank Accounts.  All funds received by Computershare under this  Agreement that are to be distributed or applied by Computershare in the performance of services  hereunder (the “Funds”) shall be held by Computershare as agent for the Company and deposited  in one or more bank accounts to be maintained by Computershare in its name as agent for the  Company.  Until paid pursuant to the terms of this CVR Agreement, Computershare will hold  the Funds through such accounts in: deposit accounts of commercial banks with Tier 1 capital  exceeding $1 billion or with an average rating above investment grade by S&P (LT Local Issuer  Credit Rating), Moody’s (Long Term Rating) and Fitch Ratings, Inc. (LT Issuer Default Rating)  (each as reported by Bloomberg Finance L.P.).  The Rights Agent shall have no responsibility or  liability for any diminution of the Funds that may result from any deposit made by  Computershare in accordance with this paragraph, including any losses resulting from a default  by any bank, financial institution or other third party.  Computershare may from time to time  receive interest, dividends or other earnings in connection with such deposits.  The Rights Agent  shall not be obligated to pay such interest, dividends or earnings to the Company, any Holder or  any other party. The Funds need not be segregated from other funds except to the extent required  by Law.     SECTION 4.7 Compensation and Reimbursement.  The Company agrees:  (a) to pay to the Rights Agent from time to time reasonable compensation for  all services rendered by it hereunder in such amount as the Company and the Rights  Agent shall agree in writing from time to time;  (b) except as otherwise expressly provided herein, to reimburse the Rights  Agent upon its request for all reasonable expenses, disbursements and advances incurred  or made by the Rights Agent in accordance with any provision of this CVR Agreement  (including the reasonable compensation and the reasonable expenses and disbursements  of its agents and counsel), except any such expense, disbursement or advance as may be  attributable to the Rights Agent’s gross negligence, bad faith or willful misconduct (each  as determined by a court of competent jurisdiction in a final and non-appealable  decision); and  (c) to indemnify the Rights Agent and any predecessor Rights Agent and each  of their respective agents, officers, directors and employees for, and to hold them  harmless against, any loss, liability, judgment, fine, penalty, claim, demand, settlement,  cost or expense (including attorneys’ fees and expenses) which may be paid, incurred or  suffered by or to which it may become subject, without gross negligence, bad faith or  willful misconduct on its part (each as determined by a court of competent jurisdiction in  a final and non-appealable decision) arising out of or in connection with the performance  of its duties hereunder, including the reasonable costs and expenses of defending itself  against any claim or liability in connection with the exercise or performance of any of its  powers or duties hereunder.  When the Rights Agent incurs expenses after the occurrence  





 






  19  of a Breach specified in Section 8.1(c) or 8.1(d) with respect to the Company, the  expenses are intended to constitute expenses of administration under bankruptcy Laws.  SECTION 4.8 Disqualification; Conflicting Interests.  (a) If applicable, to the extent that the Rights Agent or the Company  determines that the Rights Agent has a conflicting interest, the Rights Agent shall  immediately notify the Company of such conflict and, within ninety (90) days after  ascertaining that it has such conflicting interest, either eliminate such conflicting interest  or resign to the extent and in the manner provided by, and subject to the provisions of,  this CVR Agreement.  The Company shall take prompt steps to have a successor  appointed in the manner provided in this CVR Agreement.  (b) In the event the Rights Agent shall fail to comply with the foregoing  Section 4.8(a), the Rights Agent shall, within ten (10) days of the expiration of such  ninety (90) day period, transmit a notice of such failure to the Holders in the manner and  to the extent provided in this CVR Agreement.  (c) In the event the Rights Agent shall fail to comply with the foregoing  Section 4.8(a) after written request therefor by the Company or any Holder, any Holder  of any CVR who has been a bona fide Holder for at least six (6) months may on behalf of  himself and all others similarly situated, petition any court of competent jurisdiction for  the removal of such Rights Agent and the appointment of a successor Rights Agent.  SECTION 4.9 Corporate Rights Agent Required; Eligibility.  There shall at all times  be a Rights Agent hereunder which has a combined capital and surplus of at least fifty million  dollars ($50,000,000).  If such Person publishes reports of condition at least annually, pursuant to  Law or to the requirements of a supervising or examining authority, then for the purposes of this  Section 4.9, the combined capital and surplus of such Person shall be deemed to be its combined  capital and surplus as set forth in its most recent report of condition so published.  If at any time  the Rights Agent shall cease to be eligible in accordance with the provisions of this Section 4.9,  it shall resign immediately in the manner and with the effect hereinafter specified in this Article  4.  SECTION 4.10 Resignation and Removal; Appointment of Successor.  (a) No resignation or removal of the Rights Agent and no appointment of a  successor Rights Agent pursuant to Section 4.10(b) shall become effective until the  acceptance of appointment by the successor Rights Agent under Section 4.11.  (b) The Rights Agent, or any rights agent or rights agents hereafter appointed,  may resign at any time by giving written notice thereof to the Company.  If an instrument  of acceptance by a successor Rights Agent shall not have been delivered to the Rights  Agent within thirty (30) days after the giving of such notice of resignation, the resigning  Rights Agent may petition any court of competent jurisdiction for the appointment of a  successor Rights Agent.  





 






  20  (c) The Rights Agent may be removed at any time by an Act of the Majority  Holders delivered to the Rights Agent and to the Company upon thirty (30) days’ written  notice.  (d) If at any time:  (i) the Rights Agent shall fail to comply with Section 4.8 after written  request therefor by the Company or by any Holder who has been a bona fide  Holder of a CVR for at least six (6) months; or  (ii) the Rights Agent shall cease to be eligible under Section 4.9 and  shall fail to resign after written request therefor by the Company or by any such  Holder; or  (iii) the Rights Agent shall become incapable of acting or shall be  adjudged a bankrupt or insolvent, or a receiver of the Rights Agent or of its  property shall be appointed, or any public officer shall take charge or control of  the Rights Agent or of its property or affairs for the purpose of rehabilitation,  conservation or liquidation, then, in any case, (A) the Company, by a Board  Resolution or action of the Chief Executive Officer, may remove the Rights  Agent, or (B) the Holder of any CVR who has been a bona fide Holder of a CVR  for at least six (6) months may, on behalf of himself and all others similarly  situated, petition any court of competent jurisdiction for the removal of the Rights  Agent and the appointment of a successor Rights Agent.  (e) If the Rights Agent shall resign, be removed or become incapable of  acting, or if a vacancy shall occur in the office of Rights Agent for any cause, the  Company, by a Board Resolution and/or action of the Chief Executive Officer, shall  promptly appoint a successor Rights Agent.  If no successor Rights Agent shall have been  so appointed by the Company or the Holders of the CVRs and accepted appointment  within sixty (60) days after the retiring Rights Agent tenders its resignation or is  removed, the retiring Rights Agent may (at the sole cost and expense of the Company),  or, the Holder of any CVR who has been a bona fide Holder for at least six (6) months  may on behalf of himself and all others similarly situated, petition any court of competent  jurisdiction for the appointment of a successor Rights Agent.  If, within one (1) year after  any such resignation, removal or incapability, or the occurrence of such vacancy, a  successor Rights Agent shall be appointed by Act of the Majority Holders delivered to  the Company and the retiring Rights Agent, the successor Rights Agent so appointed  shall, forthwith upon its acceptance of such appointment in accordance with Section 4.11,  become the successor Rights Agent and supersede the successor Rights Agent previously  appointed by the Company, the retiring Rights Agent or court, as the case may be,  pursuant to this Section 4.11(e).  (f) The Company shall give notice of each resignation and each removal of  the Rights Agent and each appointment of a successor Rights Agent by mailing written  notice of such event by first-class mail, postage prepaid, to the Holders of CVRs as their  names and addresses appear in the CVR Register.  Each notice shall include the name of  





 






  21  the successor Rights Agent and the address of its Corporate Trust Office.  If the Company  fails to send such notice within ten (10) days after acceptance of appointment by a  successor Rights Agent, the successor Rights Agent shall cause the notice to be mailed at  the expense of the Company.  SECTION 4.11 Acceptance of Appointment of Successor.  (a) Every successor Rights Agent appointed hereunder shall execute,  acknowledge and deliver to the Company and to the retiring Rights Agent an instrument  accepting such appointment, and such successor Rights Agent, without any further act,  deed or conveyance, shall become vested with all the rights, powers, and duties of the  retiring Rights Agent; but, upon request of the Company or the successor Rights Agent,  such retiring Rights Agent shall, upon payment of its charges, execute and deliver an  instrument transferring to such successor Rights Agent all the rights, powers and duties of  the retiring Rights Agent, and shall duly assign, transfer and deliver to such successor  Rights Agent all property and money held by such retiring Rights Agent hereunder.   Upon request of any such successor Rights Agent, the Company shall execute any and all  instruments for more fully and certainly vesting in and confirming to such successor  Rights Agent all such rights, powers and duties.  (b) No successor Rights Agent shall accept its appointment unless at the time  of such acceptance such successor Rights Agent shall be qualified and eligible under this  Article 4.  SECTION 4.12 Merger, Conversion, Consolidation or Succession to Business.  Any  Person into which the Rights Agent may be merged or converted or with which it may be  consolidated, or any Person resulting from any merger, conversion or consolidation to which the  Rights Agent shall be a party, or any Person succeeding to all or substantially all of the corporate  trust business of the Rights Agent, by sale or otherwise shall be the successor of the Rights  Agent hereunder, provided such Person shall be otherwise qualified and eligible under this  Article 4, without the execution or filing of any paper or any further act on the part of any of the  Parties hereto.  ARTICLE 5  REPORTS BY THE RIGHTS AGENT AND COMPANY  SECTION 5.1 Communications to Holders.  (a) The rights of the Holders to communicate with other Holders with respect  to their rights under this CVR Agreement and the corresponding rights and privileges of  the Rights Agent shall be as provided by Section 312(b) of the Trust Indenture Act.  (b) Every Holder of CVRs, by receiving and holding the same, agrees with the  Company and the Rights Agent that neither the Company nor the Rights Agent shall be  held accountable under this CVR Agreement by reason of the disclosure of any such  information as to the names and addresses of the Holders made in accordance with  Section 5.1(a) regardless of the source from which such information was derived.  





 






  22  SECTION 5.2 Reports by Rights Agent.  The Company shall promptly notify the  Rights Agent when the CVRs are listed on any stock exchange.  SECTION 5.3 Reports by Company.  The Company shall:  (a) file with the Rights Agent, (i) within fifteen (15) days after the Company  files the same with the SEC, copies of the annual reports filed on Form 10-K and  quarterly reports filed on Form 10-Q and of the information, documents and other reports  (or copies of such portions of any of the foregoing as the SEC may from time to time by  rules and regulations prescribe) which the Company is required to file with the SEC  pursuant to Section 13 or Section 15(d) of the Exchange Act and (ii) if the Company does  not file such annual reports on Form 10-K or quarterly reports on Form 10-Q with the  SEC, within forty-five (45) days after the end of first three fiscal quarters of each fiscal  year, quarterly information, and, within ninety (90) days after each fiscal year, annual  financial information, in each case calculated in accordance with Accounting Standards  applied consistently with the application of such standards in either the Company’s prior  quarterly reports on Form 10-Q or annual reports on Form 10-K, as applicable;   (b) file with the Rights Agent and the SEC, in accordance with the rules and  regulations prescribed from time to time by the SEC, such additional information,  documents and reports with respect to compliance by the Company with the conditions  and covenants of this CVR Agreement as may be required from time to time by the rules  and regulations of the SEC; and   (c) make available to the Holders on the Company’s website as of an even  date with the filing of such materials with the Rights Agent, the information, documents  and reports required to be filed by the Company pursuant to subsections (a) or (b) of this  Section 5.3.  If the Company has timely electronically filed with the SEC’s Next- Generation EDGAR system (or any successor system) the reports described above, the  Company shall be deemed to have satisfied the requirements of this Section 5.3.  ARTICLE 6  AMENDMENTS  SECTION 6.1 Amendments without Consent of Holders.  Without the consent of any  Holders, the Company (when authorized by a Board Resolution) and the Rights Agent, at any  time and from time to time, may enter into one or more amendments hereto, for any of the  following purposes:  (a) to convey, transfer, assign, mortgage or pledge to the Rights Agent as  security for the CVRs any property or assets;  (b) to evidence the succession of another Person to the Company, and the  assumption by any such successor of the covenants of the Company herein;  (c) to add to the covenants of the Company such further covenants,  restrictions, conditions or provisions as the Board of Directors and the Rights Agent shall  consider in good faith to be for the protection of the Holders of CVRs, and to make the  





 






  23  occurrence, or the occurrence and continuance, of a breach of any such additional  covenants, restrictions, conditions or provisions a Breach permitting the enforcement of  all or any of the several remedies provided in this CVR Agreement as herein set forth;  (d) to cure any ambiguity, or to correct or supplement any provision herein  which may be defective or inconsistent with any other provision herein; provided that, in  each case, such amendment does not adversely affect the interests of the Holders; or  (e) to make any other provisions with respect to matters or questions arising  under this CVR Agreement; provided that such provisions do not adversely affect the  interests of the Holders.  SECTION 6.2 Amendments with Consent of Holders.  With the consent of not less  than the Majority Holders, by Act of said Holders delivered to the Company and the Rights  Agent (including, without limitation, consents obtained in connection with a purchase of, or  tender offer or exchange offer for, the CVRs), the Company (when authorized by a Board  Resolution) and the Rights Agent may enter into one or more amendments hereto for the purpose  of adding any provisions to or changing in any manner or eliminating any of the provisions of  this CVR Agreement or of modifying in any manner the rights of the Holders under this CVR  Agreement; provided, however, that no such amendment shall, without the consent of the Holder  of each Outstanding CVR affected thereby:  (a) modify the definition of Acceleration Payment, Acceleration Payment  Date, Acceleration Valuation Period, Automatic Extinguishment, Breach Interest Rate,  CVR Payment Amount, CVR Payment Date, Fundamental Event, Maturity Date,  Maturity Payment, Maturity Payment Date, Maturity Valuation Period, Redemption Date,  Redemption Payment, Redemption Valuation Period, Acting Holders or Majority  Holders;   (b) without limiting the foregoing clause (a) of this Section 6.2, modify in a  manner that would be adverse to the Holders (i) any provision contained herein with  respect to the termination of this CVR Agreement or the CVRs or (ii) otherwise extend  the time for payment of the CVRs or reduce the amounts payable in respect of the CVRs  or modify any other payment term or requisite time for payment hereunder;  (c) reduce the number of Outstanding CVRs, the consent of whose Holders is  required for any such amendment; or  (d) modify any of the provisions of this Section 6.2, except to increase the  percentage of Holders from whom consent is required or to provide that certain other  provisions of this CVR Agreement cannot be modified or waived without the consent of  the Holder of each CVR affected thereby, or, except as in accordance with Section 6.1(c),  modify any of the provisions of Sections 7.4, 8.1 or 8.10.  SECTION 6.3 Execution of Amendments.  In executing any amendment permitted by  this Article 6, the Rights Agent shall be entitled to receive and shall be fully protected in relying  upon an Opinion of Counsel stating that the execution of such amendment is authorized or  permitted by this CVR Agreement.  The Rights Agent shall execute any amendment authorized  





 






  24  pursuant to this Article 6 if the amendment does not adversely affect the Rights Agent’s own  rights, duties or immunities under this CVR Agreement or otherwise.  Otherwise, the Rights  Agent may, but need not, execute such amendment. No amendment to this CVR Agreement shall  be effective unless duly executed by the Rights Agent.  SECTION 6.4 Effect of Amendments; Notice to Holders.  (a) Upon the execution of any amendment in accordance with this Article 6,  this CVR Agreement shall be modified in accordance therewith, and such amendment  shall form a part of this CVR Agreement for all purposes; and every Holder of CVRs  theretofore Outstanding hereunder shall be bound thereby.  (b) Promptly after the execution by the Company and the Rights Agent of any  amendment pursuant to the provisions of this Article 6, the Company shall mail a notice  thereof by first-class mail to the Holders of CVRs at their addresses as they shall appear  on the CVR Register, setting forth in general terms the substance of such amendment.   Any failure of the Company to mail such notice, or any defect therein, shall not, by itself,  however, in any way impair or affect the validity of any such amendment.  ARTICLE 7  COVENANTS  SECTION 7.1 Payment of Amounts, if any, to Holders.  The Company shall duly and  punctually pay or cause to be paid the amounts, if any, on the CVRs in accordance with the terms  of this CVR Agreement.  SECTION 7.2 Maintenance of Office or Agency.  As long as any of the CVRs remain  Outstanding, the Company shall maintain in Hamilton, Bermuda an office or agency solely for  purposes of where notices and demands to or upon the Company in respect of the CVRs and this  CVR Agreement may be served.  The Company hereby initially designates the Corporate Trust  Office as such office or agency of the Company, unless the Company shall hereafter designate  and maintain some other office or agency for one or more of such purposes.  The Company may  act as its own Paying Agent; provided that it shall take appropriate actions to avoid the  commingling of funds with respect to any amounts payable hereunder.  The Company shall give  prompt written notice to the Rights Agent of any change in the location of any such office or  agency.  If at any time the Company shall fail to furnish the Rights Agent with the address  thereof, such notices and demands may be made or served at the Corporate Trust Office of the  Rights Agent, and the Company hereby appoints the Rights Agent as its agent to receive all such  notices and demands.  SECTION 7.3 Money for CVR Payments to Be Held in Trust.  (a) If the Company shall at any time act as the Paying Agent, it shall, on or  before the CVR Payment Date, segregate and hold in trust for the benefit of the Holders  all sums held by such Paying Agent for payment on the CVRs until such sums shall be  paid to the Holders as herein provided and shall promptly notify the Rights Agent of any  failure of the Company to so act.  





 






  25  (b) Whenever the Company shall have one or more Paying Agents for the  CVRs, it shall, on or before the CVR Payment Date, deposit with a Paying Agent a sum  in same day funds sufficient to pay the amount, if any, so becoming due, such sum to be  held in trust for the benefit of the Persons entitled to such amount.  (c) The Company shall cause each Paying Agent other than the Rights Agent  to execute and deliver to the Rights Agent an instrument in which such Paying Agent  shall agree with the Rights Agent, subject to the provisions of this Section 7.3, that  (i) such Paying Agent shall hold all sums held by it for the payment of any amount  payable on CVRs in trust for the benefit of the Persons entitled thereto until such sums  shall be paid to such Persons or otherwise disposed of as herein provided and shall notify  the Rights Agent of the sums so held and (ii) that it shall give the Rights Agent notice of  any failure by the Company (or by any other obligor on the CVRs) to make any payment  on the CVRs when the same shall be due and payable.  (d) Any money deposited with the Rights Agent or any Paying Agent, or then  held by the Company, in trust for the payment on any CVRs and remaining unclaimed for  one (1) year after the CVR Payment Date shall be paid to the Company on Company  Request, or (if then held by the Company) shall be discharged from such trust; and the  Holder of such CVR shall thereafter, as an unsecured general creditor, look only to the  Company for payment thereof, and all liability of the Rights Agent or such Paying Agent,  if any, with respect to such trust money shall thereupon cease.  SECTION 7.4 Certain Purchases and Sales.  The Company shall not, and shall not  permit any of its Subsidiaries or Affiliates, on any day during (a) the period commencing ten  (10) Trading Days before the start of the Maturity Valuation Period and ending on the Maturity  Date or (b) the Redemption Valuation Period or the Acceleration Valuation Period: (i) offer to  purchase, purchase, contract to purchase, purchase any option or contract to sell, sell any option  or contract to purchase, grant any option, right or warrant to sell, or otherwise acquire or  purchase, directly or indirectly, any Shares or any securities convertible into or exercisable or  exchangeable for Shares, or (ii) enter into any swap or other arrangement that acquires from  another, in whole or in part, any of the economic consequences of ownership of the Shares,  whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of  Shares or such other securities, in cash or otherwise.  The foregoing restrictions are expressly  agreed to preclude the Company and its Subsidiaries and Affiliates during the applicable periods  from engaging in any hedging or other transaction which is designed to or reasonably expected  to lead to or result in a purchase or acquisition of Shares even if such Shares would be acquired  by someone other than the Company or any of its Subsidiaries or Affiliates.  Such prohibited  hedging or other transactions would include without limitation any purchase or any purchase,  sale or grant of any right (including without limitation any put option or put equivalent position  or call option or call equivalent position) with respect to any of the Shares or with respect to any  security that includes, relates to, or derives any significant part of its value from such Shares.  SECTION 7.5 Listing of CVRs.  The Company shall use its reasonable best efforts to  (i) procure, or cause to be procured, at its sole expense, the listing of the CVRs on the NYSE(or,  if unable to be listed on the NYSE, on the OTCQX market) as of the Effective Time, to the  extent the CVRs meet all of the applicable exchange’s listing requirements, including the  





 






  26  minimum holder requirement, and (ii) maintain a listing for trading on the NYSE for so long as  any CVRs remain Outstanding, or, if unable to be listed on the NYSE, on the OTCQX market, in  each case, to the extent the CVRs meet all of the applicable exchange’s listing requirements,  including the minimum holder requirement.  ARTICLE 8  REMEDIES OF THE RIGHTS AGENT AND HOLDERS IN THE EVENT OF BREACH  SECTION 8.1 Breach Defined; Waiver of Breach.  “Breach” with respect to the  CVRs, means each one of the following events which shall have occurred and be continuing  (whatever the reason for such Breach and whether it shall be voluntary or involuntary or be  effected by operation of Law or pursuant to any judgment, decree or order of any court or any  order, rule or regulation of any administrative or governmental body):  (a) failure to pay all or any part of any CVR Payment Amount as and when  such CVR Payment Amount shall become due and payable as provided in this CVR  Agreement;  (b) material breach in the performance, or breach in any material respect, of  any covenant or warranty of the Company under Section 6.1 or 6.2 or Article 7 and  continuance of such breach for a period of thirty (30) days after there has been given, by  registered or certified mail, to the Company and the Rights Agent by the Acting Holders,  a written notice specifying such breach and requiring it to be remedied and stating that  such notice is a “Notice of Breach” hereunder;  (c) a court of competent jurisdiction shall enter a decree or order for relief in  respect of the Company in an involuntary case under any applicable bankruptcy,  insolvency or other similar Law now or hereafter in effect, or shall appoint a receiver,  liquidator, assignee, custodian, trustee or sequestrator (or similar official) for the  Company or for any substantial part of its property or ordering the winding up or  liquidation of its affairs, and such decree or order shall remain unstayed and in effect for  a period of thirty (30) consecutive days; or  (d) the Company shall commence a voluntary case under any applicable  bankruptcy, insolvency or other similar Law now or hereafter in effect, or consent to the  entry of an order for relief in an involuntary case under any such Law, or consent to the  appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee  or sequestrator (or similar official) of the Company or for any substantial part of its  property, or make any general assignment for the benefit of creditors.  If a Breach described above occurs and is continuing, then, unless all of the CVRs shall  have already become due and payable, upon the written notice by the Acting Holders to the  Company and to the Rights Agent, the CVRs shall become due and payable immediately (such  date of declaration, the “Breach Declaration Date”), and on the first (1st) calendar day  immediately following the last day of the Acceleration Valuation Period (the “Acceleration  Payment Date”), the Acceleration Payment shall become immediately due and payable to each  Holder for each of such Holder’s Outstanding CVRs and shall thereafter bear interest at the  





 






  27  Breach Interest Rate. All determinations with respect to the calculation of the Acceleration  Payment shall be reasonably made by the Company in good faith, and such determinations shall  be binding on the Holders absent gross negligence, willful misconduct or manifest error. Not  later than the third (3rd) Business Day after the Acceleration Payment Date, the Company shall  (x) prepare and file with the Rights Agent a certificate setting forth such determinations and facts  accounting for such determinations and (y) mail such certificate to the Holders, by first-class  mail, postage prepaid, as their names and addresses appear in the CVR Register.   In the event of a Breach described in Section 8.1(a) in respect of any Maturity Payment  or Redemption Payment, the amount of such Maturity Payment or Redemption Payment unpaid  following the Maturity Date or Redemption Date, as the case may be, shall bear interest from and  after the Maturity Date or the Redemption Date, as applicable, at the Breach Interest Rate.  The foregoing provisions, however, are subject to the condition that if, at any time after  the CVRs shall become due and payable, and before any judgment or decree for the payment of  the moneys due shall have been obtained or entered as hereinafter provided, the Company shall  pay or shall deposit with the Rights Agent a sum sufficient to pay all amounts which shall have  become due and payable (with interest upon any such overdue amount at the Breach Interest  Rate to the date of such payment or deposit) and such amount as shall be sufficient to cover  reasonable compensation to the Rights Agent, its agents, attorneys and counsel, and all other  expenses and liabilities incurred and all advances made, by the Rights Agent, except as a result  of gross negligence, willful misconduct or bad faith of the Rights Agent (each as determined by a  court of competent jurisdiction in a final and non-appealable decision) and if any and all  Breaches under this CVR Agreement, other than the nonpayment of the amounts which shall  have become due, shall have been cured, waived or otherwise remedied as provided herein, then  and in every such case the Majority Holders, by written notice to the Company and to the Rights  Agent, may waive all such Breaches and rescind and annul such declaration and its  consequences, but no such waiver or rescission and annulment shall extend to or shall affect any  subsequent breach or shall impair any right consequent thereof.  SECTION 8.2 Collection by the Rights Agent; the Rights Agent May Prove Payment  Obligations.  The Company covenants that in the case of any failure to pay all or any part of the  CVRs when the same shall have become due and payable, then upon demand of the Acting  Holders, the Company shall pay to the Rights Agent for the benefit of the Holders of the CVRs  the whole amount that then shall have become due and payable on all CVRs (with interest from  the date due and payable to the date of such payment upon the overdue amount at the Breach  Interest Rate); and in addition thereto, such further amount as shall be sufficient to cover the  costs and expenses of collection, including reasonable compensation to the Rights Agent and  each predecessor Rights Agent, their respective agents, attorneys and counsel, and any expenses  and liabilities incurred, and all advances made, by the Rights Agent and each predecessor Rights  Agent, except as a result of its gross negligence, willful misconduct or bad faith (each as  determined by a court of competent jurisdiction in a final and non-appealable decision).  The Rights Agent may in its discretion (but shall not be required to) proceed to protect  and enforce its rights and the rights of the Holders by such appropriate judicial proceedings as  the Rights Agent shall deem most effectual to protect and enforce any such rights, whether for  





 






  28  the specific enforcement of any covenant or agreement in this CVR Agreement or in aid of the  exercise of any power granted herein, or to enforce any other remedy.  In case the Company shall fail forthwith to pay such amounts upon such demand, the  Rights Agent shall be entitled and empowered to institute any action or proceedings at Law or in  equity for the collection of the sums so due and unpaid, and may prosecute any such action or  proceedings to judgment or final decree, and may enforce any such judgment or final decree  against the Company or other obligor upon such CVRs and collect in the manner provided by  Law out of the property of the Company or other obligor upon such CVRs, wherever situated,  the moneys adjudged or decreed to be payable.  In any judicial proceedings relative to the Company or other obligor upon the CVRs,  irrespective of whether any amount is then due and payable with respect to the CVRs, the Rights  Agent is authorized (but not required to):  (a) to file and prove a claim or claims for the whole amount owing and unpaid  in respect of the CVRs, and to file such other papers or documents as may be necessary  or advisable in order to have the claims of the Rights Agent (including any claim for  reasonable compensation to the Rights Agent and each predecessor Rights Agent, and  their respective agents, attorneys and counsel, and for reimbursement of all expenses and  liabilities incurred, and all advances made, by the Rights Agent and each predecessor  Rights Agent, except as a result of gross negligence, willful misconduct or bad faith (each  as determined by a court of competent jurisdiction in a final and non-appealable  decision)) and of the Holders allowed in any judicial proceedings relative to the  Company or other obligor upon the CVRs, or to their respective property;  (b) unless prohibited by and only to the extent required by applicable Law, to  vote on behalf of the Holders in any election of a trustee or a standby trustee in  arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings  or Person performing similar functions in comparable proceedings; and  (c) to collect and receive any moneys or other property payable or deliverable  on any such claims, and to distribute all amounts received with respect to the claims of  the Holders and of the Rights Agent on their behalf; and any trustee, receiver, or  liquidator, custodian or other similar official is hereby authorized by each of the Holders  to make payments to the Rights Agent, and, in the event that the Rights Agent shall  consent to the making of payments directly to the Holders, to pay to the Rights Agent  such amounts as shall be sufficient to cover reasonable compensation to the Rights  Agent, each predecessor Rights Agent and their respective agents, attorneys and counsel,  and all other expenses and liabilities incurred, and all advances made, by the Rights  Agent and each predecessor Rights Agent, except as a result of its gross negligence,  willful misconduct or bad faith (each as determined by a court of competent jurisdiction  in a final and non-appealable decision), and all other amounts due to the Rights Agent or  any predecessor Rights Agent pursuant to Section 4.7.  To the extent that such payment  of reasonable compensation, expenses, disbursements, advances and other amounts out of  the estate in any such proceedings shall be denied for any reason, payment of the same  shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends,  





 






  29  moneys, securities and other property which the Holders may be entitled to receive in  such proceedings, whether in liquidation or under any plan of reorganization or safeguard  arrangement or otherwise.  Nothing herein contained shall be deemed to authorize the Rights Agent to authorize or  consent to or vote for or accept or adopt on behalf of any Holder any plan of reorganization,  safeguard arrangement, adjustment or composition affecting the CVRs, or the rights of any  Holder thereof, or to authorize the Rights Agent to vote in respect of the claim of any Holder in  any such proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or  similar person.  All rights of action and of asserting claims under this CVR Agreement may be enforced  by the Rights Agent without the possession of any of the CVRs and any trial or other  proceedings instituted by the Rights Agent shall be brought in its own name as trustee of an  express trust, and any recovery of judgment, subject to the payment of the expenses,  disbursements and compensation of the Rights Agent, each predecessor Rights Agent and their  respective agents and attorneys, shall be for the ratable benefit of the Holders.  SECTION 8.3 Application of Proceeds.  Any monies collected by the Rights Agent  pursuant to this Article 8 in respect of any CVRs shall be applied in the following order at the  date or dates fixed by the Rights Agent in respect of which monies have been collected:  FIRST:  To the payment of costs and expenses in respect of which monies have been  collected, including reasonable compensation to the Rights Agent and each predecessor Rights  Agent and their respective agents and attorneys and of all expenses and liabilities incurred, and  all advances made, by the Rights Agent and each predecessor Rights Agent, except as a result of  its gross negligence, willful misconduct or bad faith (each as determined by a court of competent  jurisdiction) in a final and non-appealable decision, and all other amounts due to the Rights  Agent or any predecessor Rights Agent pursuant to Section 4.7;  SECOND:  To the payment of the whole amount then owing and unpaid upon all the  CVRs, with interest at the Breach Interest Rate on all such amounts, and, in case such monies  shall be insufficient to pay in full the whole amount so due and unpaid upon the CVRs, then to  the payment of such amounts without preference or priority of any security over any other CVR,  ratably to the aggregate of such amounts due and payable; and  THIRD:  To the payment of the remainder, if any, to the Company or any other Person  lawfully entitled thereto.  SECTION 8.4 Suits for Enforcement.  In case a Breach has occurred, has not been  waived and is continuing, subject to section 4.2(f), the Rights Agent may in its sole discretion  (subject to Section 1.9) proceed to protect and enforce the rights vested in it by this CVR  Agreement by such appropriate judicial proceedings as the Rights Agent shall deem most  effectual to protect and enforce any of such rights (unless authorization and/or appearance of  each of the Holders is required by applicable Law), either at Law or in equity or in bankruptcy or  otherwise, whether for the specific enforcement of any covenant or agreement contained in this  CVR Agreement or in aid of the exercise of any power granted in this CVR Agreement or to  





 






  30  enforce any other legal or equitable right vested in the Rights Agent by this CVR Agreement or  by Law.  SECTION 8.5 Restoration of Rights on Abandonment of Proceedings.  In case the  Rights Agent or any Holder shall have proceeded to enforce any right under this CVR  Agreement and such proceedings shall have been discontinued or abandoned for any reason, or  shall have been determined adversely to the Rights Agent or to such Holder, then and in every  such case the Company and the Rights Agent and the Holders shall be restored respectively to  their former positions and rights hereunder, and all rights, remedies and powers of the Company,  the Rights Agent and the Holders shall continue as though no such proceedings had been taken.  SECTION 8.6 Limitations on Suits by Holders.  Subject to the rights of the Holders  under Section 8.7, no Holder of any CVR shall have any right by virtue or by availing itself of  any provision of this CVR Agreement to institute any action or proceeding at Law or in equity or  in bankruptcy or otherwise upon or under or with respect to this CVR Agreement, or for the  appointment of a trustee, receiver, liquidator, custodian or other similar official or for any other  remedy hereunder, unless the Acting Holders previously shall have given to the Rights Agent  and the Company written notice of breach and of the continuance thereof, as hereinbefore  provided, and unless also the Acting Holders shall have made written request upon the Rights  Agent to institute such action or proceedings in its own name as rights agent hereunder and shall  have offered to the Rights Agent such reasonable indemnity as it may require against the costs,  expenses and liabilities to be incurred therein or thereby, and the Rights Agent for thirty  (30) days after its receipt of such notice and request shall have failed to institute any such action  or proceeding and no direction inconsistent with such written request shall have been given to  the Rights Agent pursuant to Section 8.9; it being understood and intended, and being expressly  covenanted by the taker and Holder of every CVR with every other taker and Holder and the  Rights Agent, that no one or more Holders of CVRs shall have any right in any manner whatever  by virtue or by availing itself of any provision of this CVR Agreement to effect, disturb or  prejudice the rights of any other such Holder of CVRs, or to obtain or seek to obtain priority over  or preference to any other such Holder or to enforce any right under this CVR Agreement, except  in the manner herein provided and for the equal, ratable and common benefit of all Holders of  CVRs.  For the protection and enforcement of the provisions of this Section 8.6, each and every  Holder and the Rights Agent shall be entitled to such relief as can be given either at Law or in  equity.  SECTION 8.7 Unconditional Right of Holders to Receive Payment.  Notwithstanding  any other provision in this CVR Agreement and any provision of any CVR, the right of any  Holder of any CVR to receive payment of the amounts payable in respect of such CVR on or  after the respective due dates expressed in such CVR, or to institute suit for the enforcement of  any such payment on or after such respective dates, shall not be impaired or affected without the  consent of such Holder.  SECTION 8.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of  Breach.  (a) Except as provided in Section 8.6, no right or remedy herein conferred  upon or reserved to the Rights Agent or to the Holders is intended to be exclusive of any  





 






  31  other right or remedy, and every right and remedy shall, to the extent permitted by Law,  be cumulative and in addition to every other right and remedy given hereunder or now or  hereafter existing at Law or in equity or otherwise.  The assertion or employment of any  right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or  employment of any other appropriate right or remedy.  (b) No delay or omission of the Rights Agent or of any Holder to exercise any  right or power accruing upon any Breach occurring and continuing as aforesaid shall  impair any such right or power or shall be construed to be a waiver of any such Breach or  an acquiescence therein; and, subject to Section 8.6, every power and remedy given by  this CVR Agreement or by Law to the Rights Agent or to the Holders may be exercised  from time to time, and as often as shall be deemed expedient, by the Rights Agent or by  the Holders.  SECTION 8.9 Control by Holders.  (a) The Majority Holders shall have the right to direct the time, method and  place of conducting any proceeding for any remedy available to the Rights Agent, or  exercising any power conferred on the Rights Agent with respect to the CVRs by this  CVR Agreement; provided that such direction shall not be otherwise than in accordance  with Law and the provisions of this CVR Agreement; and provided, further, that (subject  to the provisions of Section 4.1) the Rights Agent shall have the right to decline to follow  any such direction if the Rights Agent, being advised by counsel, shall determine that the  action or proceeding so directed may not lawfully be taken or if the Rights Agent in the  absence of bad faith by the Responsible Officers of the Rights Agent shall determine that  the action or proceedings so directed would involve the Rights Agent in personal liability  or if the Rights Agent in  the absence of bad faith shall so determine that the actions or  forbearances specified in or pursuant to such direction would be unduly prejudicial to the  interests of Holders of the CVRs not joining in the giving of said direction.  (b) Nothing in this CVR Agreement shall impair the right of the Rights Agent  in its discretion to take any action deemed proper by the Rights Agent and, except with  respect to the enforcement of the Rights Agent’s rights, powers and immunities, which is  not inconsistent with such direction or directions by Holders.  SECTION 8.10 Waiver of Past Breaches.    (a) In the case of a breach or a Breach specified in clause (b), (c) or (d) of  Section 8.1, the Majority Holders may waive any such Breach, and its consequences,  except a breach in respect of a covenant or provisions hereof which cannot be modified  or amended without the consent of the Holder of each CVR affected.  In the case of any  such waiver, the Company, the Rights Agent and the Holders of the CVRs shall be  restored to their former positions and rights hereunder, respectively; but no such waiver  shall extend to any subsequent or other breach or impair any right consequent thereon.  (b) Upon any such waiver, such breach shall cease to exist and be deemed to  have been cured and not to have occurred, and any Breach arising therefrom shall be  





 






  32  deemed to have been cured, and not to have occurred for every purpose of this CVR  Agreement; but no such waiver shall extend to any subsequent or other Breach or other  breach of any kind or impair any right consequent thereon.  SECTION 8.11 Right of Court to Require Filing of Undertaking to Pay Costs.  All  Parties to this CVR Agreement agree, and each Holder of any CVR by receiving or holding the  same shall be deemed to have agreed, that any court may in its discretion require, in any suit for  the enforcement of any right or remedy under this CVR Agreement or in any suit against the  Rights Agent for any action taken, suffered or omitted by it as the Rights Agent, the filing by any  party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may  in its discretion assess reasonable costs, including attorneys’ fees, against any party litigant in  such suit, having due regard to the merits and good faith of the claims or defenses made by such  party litigant; but the provisions of this Section 8.11 shall not apply to any suit instituted by the  Rights Agent, to any suit instituted by any Holder or group of Holders holding in the aggregate  more than ten percent (10%) of the Outstanding CVRs or to any suit instituted by any Holder for  the enforcement of the payment of any CVR on or after the due date expressed in such CVR.  [Remainder of page intentionally left blank.] 





 






  [Signature Page to CVR Agreement]  IN WITNESS WHEREOF, the Parties hereto have caused this CVR Agreement to be  duly executed, all as of the day and year first above written.  SIRIUSPOINT LTD.    By:   /s/ David W. Junius   Name: David W. Junius   Title: Chief Financial Officer    COMPUTERSHARE INC.    COMPUTERSHARE TRUST COMPANY,  N.A.,  as the Rights Agent  By:   /s/ Collin Ekeogu   Name: Collin Ekeogu   Title:  Manager, Corporate Actions