c54473_ex4-4.htm -- Converted by SEC Publisher, created by BCL Technologies Inc., for SEC Filing




Exhibit 4.4

EXECUTION COPY



  REGISTRATION RIGHTS AGREEMENT


       REGISTRATION RIGHTS AGREEMENT, dated as of August 5, 2008, by and between XL Capital Ltd, an exempted limited company incorporated under the laws of the Cayman Islands (the “Company”),
  Syncora Guarantee Re Ltd. (formerly known as, XL Financial Assurance Ltd.,
  a company domiciled in Bermuda) (“XLFA”) and Syncora
  Guarantee Inc. (formerly known as, XL Capital Assurance Inc., a New York insurance
company) (“XLCA”).


       WHEREAS, the Company, XLFA and XLCA are parties to that certain Master Commutation, Release and Restructuring Agreement, dated as of July 28, 2008, by and among Syncora Holdings Ltd, (previously known
as Security Capital Assurance Ltd.), XLFA, XLCA, the Company and the other parties thereto (the “Master Transaction Agreement”), pursuant to which, among other things, the Company has agreed to provide the Holders (as defined below) certain rights as set forth herein.


       NOW, THEREFORE, in consideration of the premises and of the mutual covenants and obligations hereinafter set forth (and for other good and valuable consideration the receipt and sufficiency of which
are hereby acknowledged by the Company), the parties hereto hereby agree as follows: 


  ARTICLE I


  DEFINITIONS; HOLDING PERIOD AND RIGHT OF FIRST REFUSAL


       Section 1.1 Certain Defined Terms. As used herein, the following terms shall have the following meanings:



       “Action” means any legal, administrative, regulatory or other suit, action, claim,
audit, assessment, arbitration or other proceeding, investigation or inquiry. 


       “Affiliate” shall
  mean, with respect to any Person, any other Person directly or indirectly controlling,
  controlled by or under common control with, such Person. For purposes of this
  definition, “control” (including its correlative meanings, “controlled by” and “under common control with”)
  when used with respect to any Person, means the possession, directly or indirectly,
  of the power to cause the direction of management and/or policies of such Person,
whether through the ownership of voting securities, by contract or otherwise. 


       “Agreement” means this Registration Rights Agreement as it may be amended,
supplemented, restated or modified from time to time. 


       “Beneficial Ownership” by
  a Person of any securities includes ownership by any Person who, directly or
  indirectly, through any contract, arrangement, understanding, relationship
  or otherwise, has or shares (i) voting power which includes the power to vote,
  or to direct the voting of, such security; and/or (ii) investment power which
  includes the power to dispose, or to direct the disposition, of such security;
  and shall otherwise be interpreted in accordance with the term “beneficial ownership” as
defined in Rule 13d-3 adopted by the SEC under the Exchange Act. The term “Beneficially Own” shall have a correlative meaning. 













       “Business Day” means any day, other than a Saturday, Sunday or a day on which
banking institutions in New York, New York are authorized or obligated to close. 


       “Class A Ordinary Shares” means
  the Class A Ordinary Shares, par value $0.01 per
share, of the Company. 


       “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated by the SEC from time to time thereunder. 


       “Form S-3” means such form under the Securities Act as is in effect on the date
hereof or any successor registration form under the Securities Act subsequently adopted by the SEC which permits inclusion or incorporation of substantial information by reference to other documents filed by the Company with the SEC. 


       “Governmental Entity” shall mean any court, administrative agency or commission or
other governmental authority or instrumentality, whether federal, state, local or foreign and any applicable industry self-regulatory organization. 


       “Holders” means
  XLFA, XLCA and the Permitted Transferees that hold Registrable Securities from
time to time (and “Holder” means any of such Persons). 


       “Holders’ Representative” means
XLFA or any other Holder designated in writing by XLFA and XLCA as the Holders’ Representative. 


       “Holding Period” means
  the period from the date of this Agreement until the six-month anniversary
of this Agreement. 


       “Issuer Free Writing Prospectus” means an issuer free writing prospectus, as defined
in Rule 433 under the Securities Act, relating to an offer of the Registrable Securities. 


       “Law” means any statute, law, code, ordinance, rule or regulation of any
Governmental Entity. 


       “Other Securities” means Class A Ordinary Shares other than Registrable Securities.


       “Permitted Transferee” has the meaning set forth in Section 3.6. 


       “Person” means any individual, corporation, limited liability company, limited or
general partnership, joint venture, association, joint stock company, trust, unincorporated organization, government or any agency or political subdivisions thereof or any group (within the meaning of Section 13(d)(3) of the Exchange Act) comprised
of two or more of the foregoing. 


       “Prospectus” means the prospectus included in any Registration Statement (including
a prospectus that discloses information previously omitted from a prospectus filed as part of an effective Registration Statement in reliance upon Rule 430A or Rule 430B promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities covered by such Registration Statement, any Issuer Free Writing Prospectus related thereto, and all other amendments and 


  2













  supplements to such prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such prospectus. 


       “Registrable Securities” means
  (a) all 8,000,000 Class A Ordinary Shares issued to XLFA and XLCA as of the
  date of this Agreement, and (b) any securities issued directly or indirectly
  with respect to such shares described in clause (a) because of stock splits,
  stock dividends, reclassifications, recapitalizations, mergers, consolidations,
  or similar events. As to any particular Registrable Securities, such Registrable
  Securities shall cease to be Registrable Securities when (i) a Registration
  Statement with respect to the sale of such securities shall have become effective
  under the Securities Act and such securities shall have been disposed of in
  accordance with such Registration Statement, (ii) such securities shall have
  been disposed of pursuant to Rule 144 or (iii) such securities are at such
  time eligible to be sold to the public without volume limitations pursuant
  to Rule 144, it being understood that in the event that such securities cease
  to be eligible to be sold to the public without volume limitations pursuant
  to Rule 144, then subject to clauses (i) and (ii) above such securities will
  again be Registrable Securities hereunder until such time as such securities
  are eligible to be sold to the public without volume limitations pursuant to
  Rule 144, and it being further agreed and understood that if such securities
  are at such time ineligible to be sold without volume limitations under Rule
  144 because the Company does not satisfy the condition set forth in Rule 144(c)(1)
  and such ineligibility is due solely to the failure of Syncora Holdings Ltd
  after the date hereof to file with the SEC in a timely manner its Annual Report
  on Form 10-K under the Exchange Act, then until such time as such Annual Report
  on Form 10-K is filed by Syncora Holdings Ltd with the SEC such securities
  shall not be deemed to be Registrable Securities and the Company’s obligations
  under Sections 2.1, 2.2,
2.3, 2.4 and 2.7 hereof with respect to such securities shall be
suspended during such period. 


       “Registration Statement” means any registration statement of the Company under the
Securities Act which permits the public offering of any of the Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus, amendments and supplements to such registration statement, including post-effective
amendments, all exhibits and all material incorporated by reference or deemed to be incorporated by reference in such registration statement. 


       “Rule 144” means Rule 144 under the Securities Act (or any successor provision).


       “SEC” means the United States Securities and Exchange Commission. 


       “Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated by the SEC from time to time thereunder. 


       “Selling Holder” means each Holder of Registrable Securities included in a
registration pursuant to Article II. 


       “Shelf Registration Statement” means
  a Registration Statement of the Company filed with the SEC on either (a) Form
  S-3 or (b) if the Company is not permitted to file a Registration Statement
  on Form S-3, a Registration Statement on Form S-1 (or any successor form or
  other appropriate form under the Securities Act), in each case for an offering
  to be made on a continuous or delayed basis pursuant to Rule 415 under the
Securities Act covering Registrable Securities. To


  3













  the extent the Company is a well-known seasoned
  issuer (as defined in Rule 405 under the Securities Act), a “Shelf Registration Statement” shall
  be deemed to refer to an automatic shelf registration statement (as defined
in Rule 405 under the Securities Act) on Form S-3. 


       A “Subsidiary” of
  any person means another person, an amount of the voting securities, other
  voting ownership or voting partnership interests of which is sufficient to
  elect at least a majority of its board of directors or other governing body
  (or, if there are no such voting interests, 50% or more of the equity interests
of which is owned directly or indirectly by such first person). 


       “Transfer” means, with respect to a given security, any transaction whereby a given
Person (a) offers, pledges, sells, contract to sells, sells any option or contract to purchase, purchases any option or contract to sell, grants any option, right or warrant to purchase, lends, or otherwise transfers or disposes of, directly or
indirectly, such given security or any securities convertible into or exercisable or exchangeable for any or all of such given security or (b) enters into any swap or any other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of any or all of the given security, whether any such transaction described in clause (a) or (b) is to be settled by delivery of any or all of the given security or any other securities, in cash or otherwise.



       Section 1.2    Terms Generally. The definitions in Section 1.1 shall
  apply equally to both the singular and plural forms of the terms defined. Whenever
  the context may require, any pronoun shall include the corresponding masculine,
  feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”, unless the context expressly provides otherwise. All references herein to Articles, Sections, paragraphs, subparagraphs,
clauses or Exhibits shall be deemed references to Articles, Sections, paragraphs, subparagraphs or clauses of, or Exhibits to, this Agreement, unless the context requires otherwise. Unless otherwise expressly defined, terms defined in this Agreement
have the same meanings when used in any Exhibit hereto. Unless otherwise specified, the words “this Agreement”, “herein”, “hereof”, “hereto” and “hereunder” and other words of similar import refer to
this Agreement as a whole (including the Exhibits) and not to any particular provision of this Agreement. The term “or” is not exclusive. The word “extent” in the phrase “to the extent” shall mean the degree to which a
subject or other thing extends, and such phrase shall not mean simply “if”.
Unless expressly stated otherwise, any Law defined or referred to herein means
such Law as from time to time amended, modified or supplemented, including by
succession of comparable successor Laws and references to all attachments thereto
and instruments incorporated therein. References to a Person are also to its
permitted successors and assigns. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or interpretation
of this Agreement. 


  Section 1.3    Holding Period.


       (a) The Holders agree that until the end of the Holding Period, they will not Transfer any of the Registrable Securities to any
Person.


       (b) The Holders further agree that they will not publicly disclose the intention to make any such Transfer referred to in Section 1.3(a) above prior to the end of the Holding Period. In furtherance of the foregoing, the Company and its transfer agent and registrar are 


  4













  hereby authorized to decline to make any transfer that would constitute a violation or breach of this Agreement.


  Section 1.4    Right of First Offer.


       (a) Offering Notice. Prior to exercising any rights under Article II
  or otherwise effecting any Transfer of any Class A Ordinary Shares, any Holder who desires to Transfer any number of Class A Ordinary Shares (such Holder being, a “Transferring Party”) shall first offer to the Company the option to purchase from such Holder such number of the Class A
Ordinary Shares that such Holder desires to Transfer by giving written notice (the “Offering Notice”) to
the Company stating the number of Class A Ordinary Shares that such Holder proposes to sell (the “Offered Stock”) and the proposed purchase price per share to be paid for such Class A Ordinary Shares (the “Offer Price”). An Offering Notice shall constitute an irrevocable offer from the Holder to the Company to sell to the Company the Offered Stock on the terms and conditions set forth in the Offering Notice for an amount of cash consideration per
share equal to the Offer Price, and such irrevocable offer, if not accepted by the Company prior to the expiration of the Election Period (as defined below) in accordance with Section 1.4(b), shall expire at the expiration of the Election Period. 


       (b) Company Option. The Company shall be entitled to irrevocably commit to purchase all of the Offered Stock
upon the terms and conditions and for the cash consideration per share equal to the Offer Price, by giving written notice of such election to the Transferring Party (the “Election
Notice”), no later than 5 p.m. (New York time) on the fifth Business Day after the date on which the Offering Notice has been given to the Company (the “Election Period”).


       (c) Permitted Transfer.



       (i) If the Company does not elect to irrevocably commit to purchase all
of the Offered Stock prior to the expiration of the Election Period as set forth in Section 1.4(b), then the Transferring Party may Transfer all, but not less than all, of
the Offered Stock to any Person at a price no less than the Offering Price and on terms and conditions no more favorable to the transferee than those specified in the Offering Notice for a period of up to thirty-five (35) days from the expiration of
the Election Period including, if such Class A Ordinary Shares are at such time Registrable Securities, pursuant to Article II. The Offered Stock so Transferred to any Person within such
period shall cease to be subject to the provisions of this Section 1.4, and any Offered Stock not so Transferred within such period shall continue to be subject to the provisions of this
Section 1.4 in connection with any subsequent proposed Transfer. 


       (ii) If
  the Company elects to purchase all of the Offered Stock, then the closing of
  the purchase of such Offered Stock from such Transferring Party shall be held
  at the offices of Cadwalader, Wickersham & Taft LLP, One World Financial
  Center, New York, New York, or at such other location as shall be mutually
  agreed, at a mutually agreed upon time on a mutually agreed upon Business Day
  during the 10 day period immediately following the date on which the Election
  Notice was delivered to the Transferring Party or at such other time and place
  as the parties to the transaction may agree. At such closing, (x) the Transferring
  Party will deliver stock certificates evidencing





  5













  the Offered Stock duly endorsed in blank (or accompanied by duly executed stock powers in blank) and such other instruments as the Company may reasonably require to consummate the purchase of such Offered Stock, (y) the Company
shall deliver an amount equal to the product of (1) the Offered Stock and (2) the Offering Price, by wire transfer in immediately available funds to a bank account or bank accounts designated by the Transferring Party in writing to the Company at
least two days prior to such closing. 





       (d) Failure to Elect. The failure of the Company to give any written notice specified in this Section 1.4 within the time period specified herein shall be deemed to be a waiver of its rights under this Section 1.4 to purchase the Offered
Stock pursuant to such Offering Notice (but not any subsequent Offering Notice). 


  ARTICLE II


  REGISTRATION RIGHTS


       Section 2.1 Demand Registrations. (a) Subject to Section 2.1(h),
  at any time and from time to time following the last day of the Holding Period,
  the Holders’ Representative shall have the right by delivering a written
  notice to the Company (a “Demand
Notice”) to require the Company to, pursuant to the terms of this
Agreement, register under and in accordance with the provisions of the Securities
Act the number of Registrable Securities Beneficially Owned by Holders and requested
by such Demand Notice to be so registered (a “Demand Registration”); provided, however,
that a Demand Notice may only be made if the amount of Registrable Securities
requested to be registered is reasonably expected to generate aggregate gross
proceeds on sale (prior to deducting underwriting discounts and commissions and
offering expenses) of at least $35 million. A Demand Notice shall also specify
the expected method or methods of disposition of the applicable Registrable Securities.
Following receipt of a Demand Notice, the Company shall use its reasonable best
efforts to file, as promptly as reasonably practicable, but not later than, 60
days with respect to any underwritten offering, or 30 days with respect to any
other offering, after receipt by the Company of such Demand Notice (subject to
paragraph (e) of this Section 2.1) (provided, however, that
with respect to a Demand Notice delivered to the Company following the Company’s
failure or decline to exercise its option to purchase the Offered Stock pursuant
to Section 1.4(b), such 60 or 30 day period, as applicable, shall commence from the date on which the Offering Notice was delivered to the
Company), a Registration Statement relating to the offer and sale of the Registrable Securities requested to be included therein by the Holders thereof in accordance with the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall use its reasonable best efforts to cause such Registration Statement to be
declared effective under the Securities Act as promptly as practicable after the filing thereof. 


       (b) If any of the Registrable Securities to be registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten
offering, and the managing underwriter(s) of such underwritten offering advise the Company and Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such
offering, together with any Other Securities proposed to be included by holders 


  6













  thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the price, timing or distribution
of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such firm commitment underwritten offering the number or dollar amount of Registrable Securities and such Other Securities that
in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows: 



       (i) first, the Registrable Securities for which inclusion in such demand offering was requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and 


       (ii) second, among any holders of Other Securities, pro rata, based on the number of
Other Securities Beneficially Owned by each such holder. 





       (c) The Holders collectively shall be entitled to request no more than two Demand Registrations pursuant to this Section 2.1; provided, that in no event shall the Company be required to effect more than one Demand Registration in any three month period.



       (d) In the event of a Demand Registration, the Company shall use its reasonable best efforts to maintain the continuous effectiveness of the
applicable Registration Statement for a period of at least 180 days after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have actually been sold. For the avoidance of
doubt, the foregoing sentence is not intended to limit the obligation of the Company to maintain the continuous effectiveness of the Short-Form Registration contemplated by Section 2.2 as required by Section 2.2. 


       (e) The Company
  shall be entitled to postpone (but not more than once in any six-month period),
  for a reasonable period of time, together with any postponement under Section
  2.2(c), not in excess of 60 days (and not for periods exceeding, in the aggregate,
  90 days during any twelve-month period), the filing or initial effectiveness
  of, or suspend the use of, a Demand Registration Statement if the Company delivers
  to the Holders’ Representative a certificate signed by both the Chief Executive Officer and Chief Financial Officer of the
Company certifying that, in their good faith judgment, such registration, offering or use would reasonably be expected to materially adversely affect or materially interfere with any bona fide and imminent material financing of the Company or any
imminent material transaction under consideration by the Company or would require the disclosure of information that has not been, and is not otherwise required to be, disclosed to the public, the premature disclosure of which would materially
adversely affect the Company. The Company shall have no obligation to include in any such certificate any reference to or description of the facts based upon which the Company is delivering such certificate. If the Company so postpones the filing of
a Registration Statement, the Holders’ Representative will have the right to withdraw the request for registration by giving written notice to the Company within ten days of the anticipated termination date of the postponement period, as
provided in the notice delivered to the Holders’ Representative and such
withdrawn registration will not count as a Demand Registration. 


  7













       (f) The
  Holders’ Representative shall have the right to notify the Company that
  it has determined that the Registration Statement relating to a Demand Registration
  be abandoned or withdrawn, in which event the Company shall promptly abandon
or withdraw such Registration Statement. 


       (g) No request for registration will count for the purposes of the limitations in Section 2.1(c) if:
  (A) the Holders’ Representative determines in good faith to withdraw the
  proposed registration prior to the effectiveness of the Registration Statement
  relating to such request due to marketing conditions or regulatory reasons
  relating to the Company, (B) the Registration Statement relating to such request
  is not declared effective within 60 days of the date such Registration Statement
  is first filed with the SEC (other than solely by reason of the applicable
  Holders having refused to proceed), (C) the Registration Statement is not maintained
  effective for the period required pursuant to this Section 2.1(d), (D) prior to the sale of at least 90% of the
Registrable Securities included in the applicable registration relating to such request, such registration is adversely affected by any stop order, injunction or other order or requirement of the SEC or other Governmental Entity or court, (E) more
than 10% of the Registrable Securities requested by the Holders to be included in the registration are not so included pursuant to Section 2.1(b), or (F) the conditions to closing specified
in any underwriting agreement or purchase agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a default or breach thereunder by the applicable Holders). Notwithstanding
anything to the contrary, the Company will pay all expenses (in accordance with Section 2.9) in connection with any request for registration pursuant to this Agreement regardless of whether
or not such request counts toward the limitation set forth above. 


       (h) Notwithstanding anything else to the contrary in this Section 2.1, if, prior to
any request for registration pursuant to this Section 2.1, (i) the Company
shall have filed a Shelf Registration Statement covering all of the Registrable
Securities, (ii) the plan of distribution set forth in such Shelf Registration
Statement includes underwritten offerings and (iii) the Shelf Registration Statement
is effective when the Holders’ Representative would otherwise make a request
for registration under this Section 2.1, the Company shall not be required to separately register any Registrable Securities in response to such request, and such request shall be deemed to be a request that the
Company cooperate in effecting a Takedown (as defined below) of the Registrable Securities pursuant to such Shelf Registration Statement. The Company may also register Other Securities on any such Shelf Registration Statement. 


       Section 2.2    Shelf Registration. (a) Subject to the second to last sentence of this Section 2.2(a), within 5 days following the end of the Holding Period, the Company shall file with the SEC a Shelf Registration Statement providing for the registration and sale of all of the Registrable
Securities by the Holders and shall use its reasonable best efforts to cause such Shelf Registration Statement to be declared effective under the Securities Act as soon as reasonably practicable thereafter. Notwithstanding the foregoing, the Company
shall have no obligation to file, or keep effective a Shelf Registration if all Class A Ordinary Shares held by the Holders are no longer Registrable Securities. In the event that Class A Ordinary Shares which are no longer Registrable Securities
(other than pursuant to clause (i) or (ii) of the definition of Registrable Securities) become Registrable Securities, the Company shall file or update a Shelf Registration Statement with respect to such Registrable Securities within five Business
Days of receiving notification of such event and use its reasonable best efforts to cause such Shelf Registration 


  8













  Statement to be declared effective under the Securities Act as soon as reasonably practicable thereafter. 


       (b) The
  Company shall use its reasonable best efforts to keep such Shelf Registration
  Statement continuously effective under the Securities Act in order to permit
  the Prospectus forming a part thereof to be usable by Holders until the earlier
  of the date as of which all Registrable Securities have been sold pursuant
  to the Shelf Registration Statement or another Registration Statement filed
  under the Securities Act (but in no event prior to the applicable period referred
  to in Section 4(3) of the Securities Act and Rule 174 thereunder) (such period
  of effectiveness, the “Shelf Period”).
  Subject to Section 2.2(c), the Company shall not be deemed to have used its reasonable best efforts to keep the Shelf Registration Statement effective during the Shelf
Period if the Company voluntarily takes any action or omits to take any action that would result in Holders of Registrable Securities covered thereby not being able to offer and sell any Registrable Securities pursuant to such Shelf Registration
Statement during the Shelf Period, unless such action or omission is required by applicable Law. The Company shall use its reasonable best efforts to remain a well-known seasoned issuer (as defined in Rule 405 under the Securities Act) and to not
become an ineligible issuer (as defined in Rule 405 under the Securities Act) during the Shelf Period. 


       (c) The Company shall be entitled to postpone (but not more than once in any six-month period), for a reasonable period of time, together with
any postponement under Section 2.1(e),
not in excess of 60 days (and not for periods exceeding, in the aggregate, 90
days during any twelve-month period), the filing or initial effectiveness of,
or suspend the use of, a Shelf Registration Statement if the Company delivers
to the Holders’ Representative a certificate signed by both the Chief Executive
Officer and Chief Financial Officer of the Company certifying that, in their
good faith judgment, such registration, offering or use would reasonably be expected
to materially adversely affect or materially interfere with any bona fide material
financing of the Company or any material transaction under consideration by the
Company or would require the disclosure of information that has not been, and
is not otherwise required to be, disclosed to the public, the premature disclosure
of which would materially adversely affect the Company. The Company shall have
no obligation to include in any such certificate any reference to or description
of the facts based upon which the Company is delivering such certificate.


       (d) Upon
  a written request from any Holder (an “Initiating Holder”)
  to effect an offering under the Shelf Registration Statement (a “Takedown”), the Company will, as soon as practicable, (x) deliver a written notice relating to the proposed
Takedown to all other Holders and (y) promptly (and in any event not later than twenty days after receiving such Initiating Holder’s request) supplement the Prospectus included in the Shelf Registration Statement as would permit or facilitate
the sale and distribution of all or such portion of such Initiating Holder’s
Registrable Securities as are specified in such request together with the Registrable
Securities requested to be included in such Takedown by any other Holders who
notify the Company in writing within ten business days after receipt of such
written notice from the Company. If the Company and/or the holders of any Other
Securities request inclusion of Other Securities in a Takedown, such Other Securities
shall be included in the Takedown if, and only if, inclusion of such Other Securities
would not be reasonably likely to delay in any material respect the timely effectuation
of the Takedown or the sale of Registrable Securities pursuant to the Takedown.
In the case of a request for or effectuation of a Takedown, all references in
this Agreement to the effective date of a 


  9













  Registration Statement shall be deemed to refer to the date of pricing of such Takedown and all references to registration shall be deemed to refer to the Takedown. 


       (e) If any of the Registrable Securities to be sold pursuant to a Shelf Registration Statement are to be sold in a firm commitment underwritten
offering, and the managing underwriter(s) of such underwritten offering advise the Holders in writing that it is their good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together
with any Other Securities proposed to be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number or dollar amount of such securities that can be sold without having an adverse
effect on the price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities, then there shall be included in such firm commitment underwritten offering the number or dollar amount of
Registrable Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for
inclusion as follows: 



       (i) first, the Registrable Securities for which inclusion in such underwritten offering requested by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and 


       (ii) second, among any holders of Other Securities, pro rata, based on the number of
Other Securities Beneficially Owned by each such holder of Other Securities. 





       Section 2.3    Piggyback Registrations. (a) If, other than pursuant to Section
2.1 or Section 2.2, the Company proposes or is required to file a registration statement under the Securities Act with respect to an offering of Class A Ordinary Shares, whether or not for sale for its own account
(other than a registration statement (i) on Form S-4, Form S-8 or any successor forms thereto, (ii) filed solely in connection with any employee benefit or dividend reinvestment plan, or (iii) so long as a Shelf Registration Statement is effective
and available pursuant to Section 2.2 hereof, filed solely in connection with the issuance or resale of Class A Ordinary Shares issuable upon conversion, exercise or exchange of any
securities of the Company or any of its Subsidiaries, where such convertible, exercisable or exchangeable securities were issued in, or as part of, a financing transaction), in a manner that would permit registration of Registrable Securities for
sale to the public under the Securities Act, then the Company shall give prompt written notice of such proposed filing at least 30 days before the anticipated filing date (the “Piggyback Notice”) to the Holders. The Piggyback Notice shall offer the Holders the opportunity to include in such registration statement the number of Registrable
Securities as they may request (a “Piggyback Registration”). Subject to Section 2.3(b) hereof, the Company shall include in each such Piggyback Registration all Registrable Securities with respect to which the Company has received written requests for inclusion therein within
15 days after notice has been given to the Holders, to permit the distribution of such Registrable Securities in accordance with the methods of distribution elected by such Holders. The Holders shall be permitted to withdraw all or part of the
Registrable Securities from a Piggyback Registration at any time at least two Business Days prior to the effective date of the Registration Statement relating to such Piggyback Registration. The Company shall use its reasonable best efforts to
maintain the effectiveness of 


  10













  the Registration Statement for a Piggyback Registration for a period of at least 180 days after the effective date thereof or such shorter period in which all Registrable Securities included in such Registration Statement have
actually been sold. No Piggyback Registration shall count towards registrations required under Section 2.1. 


       (b) If
  any of the securities to be registered pursuant to the registration giving
  rise to the Holders’ rights under this Section 2.3 are to be sold in an underwritten offering, the Holders shall be permitted to include all Registrable Securities requested to be included in such registration in such offering on the same terms
and conditions as any Other Securities included therein; provided, however, that if such offering involves a firm commitment
underwritten offering and the managing underwriter(s) of such underwritten offering advise the Company in writing that it is their good faith opinion that the total amount of Registrable Securities requested to be so included, together with all
Other Securities that the Company and any other Persons having rights to participate in such registration intend to include in such offering, exceeds the total number or dollar amount of such securities that can be sold without having an adverse
effect on the price, timing or distribution of the Registrable Securities to be so included together with all Other Securities, then there shall be included in such firm commitment underwritten offering the number or dollar amount of Registrable
Securities and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as
follows: 



       (i) first, all Other Securities being sold by the Company for its own account or by any Person (other than a Holder) exercising a contractual
right to demand registration; 


       (ii) second, all Registrable Securities requested to be included by the Holders, pro rata (if applicable), based on the number of Registrable Securities Beneficially Owned by each such Holder; and 


       (iii) third, among any other holders of Other Securities requesting such registration, pro rata, based on the number of Other Securities Beneficially Owned by each such holder of Other Securities. 





       Section 2.4    Registration Procedures. If and whenever the Company is required to use its reasonable best
efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Article II, the Company shall effect such registration to permit the sale of such
Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall cooperate in the sale of the securities and shall, as expeditiously as possible (to the extent applicable, in the
case of a Takedown): 


       (a) Prepare and file with the SEC a Registration Statement or Registration Statements on such form which shall be available for the sale of the
Registrable Securities by the Holders or the Company in accordance with the intended method or methods of distribution thereof, and use its reasonable best efforts to cause such Registration Statement to become effective and to remain effective as
provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements
thereto (excluding documents that would be incorporated or deemed to be incorporated therein by reference), the 


  11













  Company shall furnish or otherwise make available
  to the Selling Holders, their counsel and the managing underwriter(s), if any,
  copies of all such documents proposed to be filed, which documents will be
  subject to the reasonable review and comment of such counsel, and such other
  documents reasonably requested by such counsel, including any comment letter
  from the SEC, and, if requested by such counsel, provide such counsel reasonable
  opportunity to participate in the preparation of such Registration Statement
  and each Prospectus included therein and such other opportunities to conduct
  a reasonable investigation within the meaning of the Securities Act, including
  reasonable access to the Company’s books and
records, officers, accountants and other advisors. The Company shall not file
  any such Registration Statement or Prospectus or any amendments or supplements
  thereto (excluding such documents that, upon filing, would be incorporated
  or deemed to be incorporated by reference therein) with respect to any registration
  pursuant to Section 2.1, 2.2 or 2.3 to which any Holder (if such Registration Statement includes Registrable Securities of such Holder), its counsel, or the managing underwriter(s), if any, shall reasonably object, in writing, on a timely
basis, unless, in the opinion of the Company, such filing is necessary to comply with applicable Law. 


       (b) Prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement as may be necessary to keep such
Registration Statement continuously effective during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement,
and cause the related Prospectus to be supplemented by any Prospectus supplement or Issuer Free Writing Prospectus as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of the securities covered by
such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act. 


       (c) Notify each Selling Holder and the managing underwriter(s), if any, promptly, and (if requested by any such Person) confirm such notice in
writing, (i) when a Prospectus or any Prospectus supplement, Issuer Free Writing Prospectus or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become
effective, (ii) of any request by the SEC or any other Governmental Entity for amendments or supplements to a Registration Statement or related Prospectus or Issuer Free Writing Prospectus or for additional information, (iii) of the issuance by the
SEC of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time the representations and warranties of the Company contained in any agreement (including any
underwriting agreement contemplated by Section 2.4(o) below) cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) of the happening of any event that makes any statement
made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference or any Issuer Free Writing Prospectus related thereto untrue in any material respect or that requires the making
of any changes in such Registration Statement, Prospectus, documents or Issuer Free Writing Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, not misleading, and that in the case of any Prospectus or Issuer Free Writing Prospectus, it


  12













  will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. 


       (d) Use its reasonable best efforts to avoid the issuance of any order suspending the effectiveness of a Registration Statement or any
suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, or, if issued, to obtain the withdrawal or lifting of any such order or suspension at the reasonably earliest
practicable date. 


       (e) If requested by the managing underwriter(s), if any, or the Holders of a majority of the Registrable Securities being sold in connection
with an underwritten offering, promptly include in a Prospectus supplement, post-effective amendment or Issuer Free Writing Prospectus such information as the managing underwriter(s), if any, or such Holders may reasonably request in order to permit
the intended method of distribution of such securities and make all required filings of such Prospectus supplement, such post-effective amendment or Issuer Free Writing Prospectus as soon as reasonably practicable after the Company has received such
request. 


       (f) Furnish or make available to each Selling Holder, and each managing underwriter, if any, without charge, such number of conformed copies of
the Registration Statement and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in
writing by such Holder, counsel or managing underwriter(s)), and such other documents, as such Holders or such managing underwriter(s) may reasonably request, and upon request a copy of any and all transmittal letters or other correspondence to or
received from, the SEC or any other Governmental Entity relating to such offering.


       (g) Deliver to each Selling Holder, and the managing underwriter(s), if any, without charge, as many copies of the Prospectus or Prospectuses
(including each form of Prospectus and any Issuer Free Writing Prospectus related to any such Prospectuses) and each amendment or supplement thereto as such Persons may reasonably request in connection with the distribution of the Registrable
Securities; and the Company, subject to Section 2.5(b), hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the Selling Holders and the managing
underwriter(s), if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto. 


       (h) Prior
  to any public offering of Registrable Securities, use its reasonable best efforts
  to register or qualify or cooperate with the Selling Holders, the managing
  underwriter(s), if any, and their respective counsel in connection with the
  registration or qualification (or exemption from such registration or qualification)
  of such Registrable Securities for offer and sale under the securities or “Blue Sky” laws
  of such jurisdictions within the United States as any Selling Holder or managing
  underwriter(s) reasonably requests in writing and to keep each such registration
  or qualification (or exemption therefrom) effective during the period such
  Registration Statement is required to be kept effective and to take any other
action that may be necessary or advisable to 


  13













  enable such Selling Holders to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified, (ii) subject itself to material taxation in any such
jurisdiction where it is not then so subject, or (iii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject. 


       (i) Cooperate with the Selling Holders and the managing underwriter(s), if any, to facilitate the timely preparation and delivery of
certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each Selling Holder that the Registrable Securities represented by the certificates so delivered by such Selling
Holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter(s), if any, or the Selling Holders may request at
least two Business Days prior to any sale of Registrable Securities. 


       (j) Upon the occurrence of any event contemplated by Section 2.4(c)(ii),
  (c)(iii), (c)(iv), (c)(v) or (c)(vi) above, prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by
reference or an Issuer Free Writing Prospectus related thereto, or file any other required document so that, as thereafter delivered to the Selling Holders, such Prospectus will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. 


       (k) Prior to the effective date of the Registration Statement relating to the Registrable Securities, provide a CUSIP number for the
Registrable Securities. 


       (l) Provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement
from and after a date not later than the effective date of such Registration Statement. 


       (m) Use its reasonable best efforts to cause all Registrable Securities covered by such Registration Statement to be authorized to be listed on
each national securities exchange, if any, on which similar securities issued by the Company are then listed. 


       (n) Enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and
take all such other actions reasonably requested by the Holders of a majority of the Registrable Securities being sold in connection therewith or by the managing underwriter(s), if any, to expedite or facilitate the disposition of such Registrable
Securities, and in connection therewith, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the Selling Holders and the
managing underwriter(s), if any, with respect to the business of the Company and its Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in
form, substance and scope as are customarily made by issuers in underwritten offerings, and, if true, confirm the same if and when requested, (ii) use its reasonable best efforts to furnish to the Selling Holders of such Registrable Securities



  14













  opinions of counsel to the Company and updates
  thereof (which counsel and opinions (in form, scope and substance) shall be
  reasonably satisfactory to the managing underwriter(s), if any, and counsels
  to the Selling Holders of the Registrable Securities), addressed to each Selling
  Holder of Registrable Securities and each of the managing underwriter(s), if
  any, covering the matters customarily covered in opinions requested in underwritten
  offerings and such other matters as may be reasonably requested by such counsel
  and managing underwriter(s), (iii) use its reasonable best efforts to obtain “comfort” letters and updates thereof from the independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any Subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration
Statement) who have certified the financial statements included in such Registration Statement, addressed to each Selling Holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable
standards of the accounting profession or such action is otherwise inconsistent with the then current practice in the accounting profession) and each of the managing underwriter(s), if any, such letters to be in customary form and covering matters
of the type customarily covered in “comfort” letters in connection
with underwritten offerings, (iv) if an underwriting agreement is entered into,
the same shall contain customary indemnification provisions and procedures, except
as otherwise agreed by the Company and Holders of a majority of the Registrable
Securities being sold in connection therewith and the managing underwriter(s),
if any, and (v) deliver such documents and certificates as may be reasonably
requested by the Holders of a majority of the Registrable Securities being sold
in connection therewith, their counsel and the managing underwriter(s), if any,
to evidence the continued validity of the representations and warranties made
pursuant to clause (i) above and to evidence compliance with any customary conditions
contained in the underwriting agreement or other agreement entered into by the
Company. The above shall be done at each closing under such underwriting or similar
agreement, or as and to the extent required thereunder. 


       (o) Upon execution of a customary confidentiality agreement, make available for inspection by a representative of the Selling Holders, the
managing underwriter(s), if any, and any attorneys or accountants retained by such Selling Holders or managing underwriter(s), at the offices where normally kept, during reasonable business hours, financial and other records, pertinent corporate
documents and properties of the Company and its Subsidiaries, and cause the officers, directors and employees of the Company and its Subsidiaries to supply all information in each case reasonably requested by any such representative, managing
underwriter(s), attorney or accountant in connection with such Registration Statement. 


       (p) Otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC and any applicable national
securities exchange, and make available to its security holders, as soon as reasonably practicable (but not more than 18 months) after the effective date of the registration statement, an earnings statement which shall satisfy the provisions of
Section 11(a) of the Securities Act. 


  Section 2.5    Certain Additional Agreements.


       (a) The Company may require each Selling Holder to furnish to the Company in writing such information required in connection with such
registration regarding such Selling Holder and the distribution of such Registrable Securities as the Company may, from time to time,


  15













  reasonably request in writing and the Company may exclude from such registration the Registrable Securities of any Selling Holder who fails to furnish such information within a reasonable time after receiving such request.


       (b) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in
  Section 2.4(c)(iii) or (c)(vi) hereof,
  such Holder will forthwith discontinue disposition of such Registrable Securities
  covered by such Registration Statement or Prospectus until such Holder’s
  receipt of the copies of the supplemented or amended Prospectus contemplated
  by Section 2.4(k) hereof, or until it is
advised in writing by the Company that the use of the applicable Prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus;
provided, however, that (i) in no event shall such discontinuance exceed the time period set forth in Section 2.1(e) hereof, and (ii) the Company shall extend the time periods under
Section 2.1 and Section 2.3 with respect to the length of time that the effectiveness of a Registration Statement must be
maintained by the amount of time the Holder is required to discontinue disposition of such securities. 


       (c) The Company covenants and agrees that, so long as any Holder holds any Registrable Securities in respect of which any registration rights
provided for in this Article II remain in effect, the Company will not, directly or indirectly, grant to any Person or agree to or otherwise become obligated in respect of rights of
registration in the nature or substantially in the nature of those set forth in this Article II that
would have priority over the Registrable Securities with respect to the inclusion
of such securities in any registration by the Company (other than rights granted
to a new registration rights holder after the date hereof to exercise a contractual
right to demand registration that have terms no more favorable than the demand
registration rights granted to the Holders in this Agreement), without the prior
written consent of the Holder’s Representative. The rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the rights granted
prior to the date hereof to the holders of any of the Company’s other issued
and outstanding securities under any such agreements. 


       (d) Each Holder covenants and agrees that it will comply with the prospectus delivery requirements of the Securities Act as applicable to it or
an exemption therefrom in connection with sale of Registrable Securities pursuant to the Registration Statement. 


  Section 2.6    Indemnification.


       (a) Indemnification by the Company. The Company shall indemnify and hold harmless, to the fullest extent
permitted by Law, each Selling Holder whose Registrable Securities are covered by a Registration Statement or Prospectus, the officers, directors, partners (limited and general), members, managers and shareholders of each of them, each Person who
controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) each such Selling Holder and the officers, directors, partners (limited and general), members, managers and shareholders of each such controlling
Person, each underwriter (including any Holder that is deemed to be an underwriter pursuant to any SEC comments or policies), if any, and each Person who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) such underwriter (collectively, “Holder Indemnitees”), from and against any and all losses, claims,
damages, liabilities, expenses (including, without limitation, costs of preparation


  16













  and reasonable attorneys’ fees and any other
  reasonable fees or expenses incurred by such party in connection with any investigation
  or Action), judgments, fines, penalties, charges and amounts paid in settlement
  (collectively, “Losses”),
  as incurred, arising out of or based upon any untrue statement (or alleged
  untrue statement) of a material fact contained in any applicable Registration
  Statement (or in any preliminary or final Prospectus contained therein, any
  document incorporated by reference therein or Issuer Free Writing Prospectus
  related thereto), amendment of or supplement to any of the foregoing or other
  document incident to any such registration, qualification, or compliance, or
  based on any omission (or alleged omission) to state therein (in the case of
  a final or preliminary Prospectus, in light of the circumstances under which
  they were made) a material fact required to be stated therein or necessary
  to make the statements therein not misleading, or any violation by the Company
  of the Securities Act or of the Exchange Act in connection with any such registration,
  qualification or compliance; provided, that the Company will not be liable
  to a Selling Holder or underwriter, as the case may be, in any such case to
  the extent that any such Loss arises out of or is based on any untrue statement
  or omission by such Selling Holder or underwriter, as the case may be, but
  only to the extent, that such untrue statement (or alleged untrue statement)
  or omission (or alleged omission) is made in such Registration Statement (or
  in any preliminary or final Prospectus contained therein, any document incorporated
  by reference therein or Issuer Free Writing Prospectus related thereto), amendment
  of or supplement to any of the foregoing or other document in reliance upon
  and in conformity with written information furnished to the Company by such
  Selling Holder or underwriter specifically for inclusion in such document;
  and provided, further, that the Company will not be liable to any Person who
  participates as an underwriter in any underwritten offering or sale of Registrable
  Securities, or to any Person who is a Selling Holder in any non-underwritten
  offering or sale of Registrable Securities, or any other Person, if any, who
  controls such underwriter or Selling Holder within the meaning of the Securities
  Act, under the indemnity agreement in this Section 2.6 with respect to any preliminary Prospectus or the final Prospectus (including any
amended or supplemented preliminary or final Prospectus), as the case may be, to the extent that any such loss, claim, damage or liability of such underwriter, Selling Holder or controlling Person results from the fact that such underwriter or
Selling Holder sold Registrable Securities to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the final Prospectus as then amended or supplemented, whichever is most recent, if the
Company has previously furnished copies thereof to such underwriter or Selling Holder and such final Prospectus, as then amended or supplemented, has corrected any such misstatement or omission. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of any Holder Indemnitee or any other Holder and shall survive the transfer of such securities. The foregoing indemnity agreement is in addition to any liability that the Company may otherwise
have to each Holder Indemnitee. 


       (b) Indemnification by Selling Holders. In connection with any Registration Statement in which a Selling
Holder is participating by registering Registrable Securities, such Selling Holder shall furnish to the Company in writing such information as the Company reasonably requests specifically for use in connection with any Registration Statement or
Prospectus and agrees, severally and not jointly with any other Person, to indemnify and hold harmless, to the fullest extent permitted by Law, the Company, the officers and directors of the Company, and each Person who controls (within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, and each underwriter, if any, and each Person who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the 


  17













  Exchange Act) such underwriter (collectively, “Company Indemnitees”), from and against
all Losses, as incurred, arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any such Registration Statement (or in any preliminary or final Prospectus contained therein, any document
incorporated by reference therein or Issuer Free Writing Prospectus related thereto) or any amendment of or supplement to any of the foregoing or any other document incident to such registration, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a final or preliminary Prospectus, in light of the circumstances under which they were made) not misleading, in each case solely to the
extent that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such Registration Statement (or in any preliminary or final Prospectus contained therein, any document incorporated by reference therein or
Issuer Free Writing Prospectus related thereto), offering circular, or any amendment of or supplement to any of the foregoing or other document in reliance upon and in conformity with written information furnished to the Company by such Selling
Holder expressly for inclusion in such document. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Company or any of its directors, officers or controlling Persons. The Company may
require as a condition to its including Registrable Securities in any Registration Statement filed hereunder that the holder thereof acknowledge its agreement to be bound by the provisions of this Agreement (including Section 2.6) applicable to it. 


       (c) Conduct of Indemnification Proceedings. If any Person shall be entitled to indemnity hereunder (an
  “indemnified party”), such indemnified party shall give prompt notice to the party from which such
indemnity is sought (the “indemnifying party”) of any
claim or of the commencement of any Action with respect to which such indemnified
party seeks indemnification or contribution pursuant hereto; provided, however,
that the delay or failure to so notify the indemnifying party shall not relieve
the indemnifying party from any obligation or liability except to the extent
that the indemnifying party has been actually prejudiced by such delay or failure.
The indemnifying party shall have the right, exercisable by giving written notice
to an indemnified party promptly after the receipt of written notice from such
indemnified party of such claim or Action, to assume, at the indemnifying party’s expense, the defense of any such Action, with counsel reasonably satisfactory to such indemnified party; provided, however, that an indemnified
party shall have the right to employ separate counsel in any such Action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless: (i) the indemnifying party agrees
to pay such fees and expenses; (ii) the indemnifying party fails reasonably promptly to assume, or in the event of a conflict of interest, as determined after receiving written advice from outside counsel, cannot assume, the defense of such Action
or fails to employ counsel reasonably satisfactory to such indemnified party, in which case the indemnified party shall also have the right to employ counsel and to assume the defense of such Action; or (iii) in the indemnified party’s
reasonable judgment, after receiving written advice from outside counsel, a conflict
of interest between such indemnified and indemnifying parties may exist in respect
of such Action; provided, further, however, that the indemnifying party shall
not, in connection with any one such Action or separate but substantially similar
or related Actions in the same jurisdiction, arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one firm of attorneys (together with appropriate local counsel) at any time for
all of the indemnified parties, or for fees and expenses that are not reasonable.
Whether or not such defense is assumed by the indemnifying party, such indemnified
party will not be subject to any liability for any settlement made without 


  18













  its written consent (but such consent will not be unreasonably withheld or delayed). No indemnifying party will be subject to any liability for any settlement made without its written consent (but such consent will not be
unreasonably withheld or delayed). The indemnifying party shall not consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by all claimants or plaintiffs to such indemnified
party of a release, in form and substance reasonably satisfactory to the indemnified party, from all liability in respect of such claim or litigation. 


       (d) Contribution. (i) If the indemnification provided for in this Section
2.6 is unavailable to an indemnified party in respect of any Losses (other
than in accordance with its terms), then each applicable indemnifying party,
in lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such Losses, in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party, on the one hand, and such indemnified party, on the other hand, in connection
with the actions, statements or omissions that resulted in such Losses as well
as any other relevant equitable considerations. The relative fault of such indemnifying
party, on the one hand, and indemnified party, on the other hand, shall be determined
by reference to, among other things, whether any action in question, including
any untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been taken by, or relates to information
supplied by, such indemnifying party or indemnified party, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
any such action, statement or omission.



       (ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section
2.6(d) were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in the immediately preceding paragraph. 


       (iii) No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent misrepresentation. 





       (e) Limitation on Holder Liability. Notwithstanding anything to the contrary contained in this Agreement, an
indemnifying party that is a Holder shall not be required to indemnify or contribute any amount in excess of the amount by which the net proceeds received by such Holder from the sale of the Registrable Securities sold by such Holder in the
applicable offering exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of the applicable untrue or alleged untrue statement or omission or alleged omission. 


       Section 2.7    Rule 144; Rule 144A. The Company covenants that it will file the reports required to be filed by
it under the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder (or, if the Company is not required to file such reports, it will, upon the request of any Holder, make publicly available other information
so long as necessary to permit sales pursuant to Rule 144 or 144A under the Securities Act), and it will take such further action as any Holder may reasonably request, all to the extent required from time to time to enable such Holder to sell
Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by (i) Rule 144 or 144A or Regulation S 


  19













  under the Securities Act, as such Rules may be amended from time to time, or (ii) any similar rule or regulation hereafter adopted by the SEC. Upon the request of any Holder, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements and, if not, the specifics thereof. 


       Section 2.8    Underwritten Registrations.
  (a) If any offering of Registrable Securities is an underwritten offering,
  the Holders’ Representative shall have the right to select the investment
  banker or investment bankers and managers to administer the offering, subject
  to approval by the Company, not to be unreasonably withheld or delayed. The
  Company shall have the right to select the investment banker or investment
bankers and managers to administer any incidental or piggyback registration. 


       (b) No
  Person may participate in any underwritten registration hereunder unless such
  Person (i) agrees to sell the Registrable Securities or Other Securities it
  desires to have covered by the registration on the basis provided in any underwriting
  arrangements in customary form (including pursuant to the terms of any over-allotment
  or “green shoe” option requested by the
managing underwriter, provided that no such Person will be required to sell more
  than the number of Registrable Securities that such Person has requested the
  Company to include in any registration), and (ii) completes and executes all
  questionnaires, powers of attorney, indemnities, underwriting agreements and
  other documents required under the terms of such underwriting arrangements,
  provided that such Person (other than the Company) shall not be required to
  make any representations or warranties other than those related to title and
  ownership of shares and as to the accuracy and completeness of statements made
  in a Registration Statement, Prospectus or other document in reliance upon
  and in conformity with written information furnished to the Company or the
  managing underwriter(s) by such Person and, provided further,
  that such Person’s (other than the Company’s) liability in respect
of such representations and warranties shall not exceed such Person’s net
proceeds from the offering. 


       Section 2.9    Registration Expenses.
  The Company shall pay all reasonable documented expenses incident to the Company’s
  performance of or compliance with its obligations under this Article II, including, without limitation, (i) all registration and filing fees (including fees and expenses (A)
with respect to filings required to be made with the SEC, all applicable securities exchanges and/or the Financial Industry Regulatory Authority and (B) of compliance with securities or Blue Sky laws including any fees and disbursements of counsel
for the underwriter(s) in connection with Blue Sky qualifications of the Registrable Securities pursuant to Section 2.4(h)),
(ii) printing expenses (including expenses of printing certificates for Registrable
Securities in a form eligible for deposit with The Depository Trust Company and
of printing Prospectuses if the printing of Prospectuses is requested by the
managing underwriter(s), if any, or by the Holders of a majority of the Registrable
Securities included in any Registration Statement), (iii) messenger, telephone
and delivery expenses of the Company, (iv) fees and disbursements of counsel
for the Company, (v) expenses of the Company incurred in connection with any
road show, and (vi) fees and disbursements of all independent certified public
accountants (including, without limitation, the expenses of any “comfort” letters
required by this Agreement) and any other Persons, including special experts
retained by the Company. In addition, the Company shall bear all of its internal
expenses (including all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit, the fees and expenses
incurred in connection with the listing of the securities to be registered on
any securities exchange 


  20













  on which similar securities issued by the Company are then listed and rating agency fees and the fees and expenses of any Person, including special experts, retained by the Company. The Company shall not be obligated to pay any
underwriting discounts attributable to sales of Registrable Securities by Holders thereof or the fees and disbursements of any counsel to the Holders.


  ARTICLE III 

  

  MISCELLANEOUS


       Section 3.1    Conflicting Agreements. Each party represents and warrants that it has not granted and is not a
party to any proxy, voting trust or other agreement that is inconsistent with or conflicts with any provision of this Agreement. 


       Section 3.2    Termination. This Agreement shall terminate at such time as there are no Registrable Securities,
except for the provisions of Sections 2.6, 2.7, 2.9 and this
Article III, which shall survive such termination. 


       Section 3.3    Amendment and Waiver.
  This Agreement may not be amended except by an instrument in writing signed
  on behalf of each of the Company, XLFA and XLCA (or, in the case of an amendment
  at any time when XLFA and XLCA are not the sole Holders, signed on behalf of
  each of (i) the Company and (ii) the Holders of a majority of the aggregate
  number of Registrable Securities then held by all Holders). Any party hereto
  may waive any right of such party hereunder by an instrument in writing signed
  by such party and delivered to the other parties (or, in the case of a waiver
  of any rights of the Holders at any time when XLFA and XLCA are not the sole
  Holders, by an instrument in writing signed by the Holders of a majority of
  the aggregate number of Registrable Securities then held by all Holders and
  delivered to the Company and the Holders’ Representative). The failure
  of any party to enforce any of the provisions of this Agreement shall in no
  way be construed as a waiver of such provisions and shall not affect the right
  of such party thereafter to enforce each and every provision of this Agreement
in accordance with its terms. 


       Section 3.4    Severability. If any provision of this Agreement shall be declared by any court of competent
jurisdiction to be illegal, void or unenforceable, all other provisions of this Agreement shall not be affected and shall remain in full force and effect. 


       Section 3.5    Entire Agreement. Except as otherwise expressly set forth herein, this Agreement and the Master
Transaction Agreement, together with the several agreements and other documents and instruments referred to herein or therein or annexed hereto or thereto, embody the complete agreement and understanding among the parties hereto with respect to the
subject matter hereof and supersedes and preempts any prior understandings, agreements or representations by or among the parties, written or oral, that may have related to the subject matter hereof in any way. 


       Section 3.6    Successors and Assigns. Neither this Agreement nor any right or obligation hereunder is assignable
in whole or in part by any party without the prior written consent of the other party hereto; provided that XLFA and XLCA may transfer their respective rights and obligations hereunder (in
whole or in part) to Syncora Holdings Ltd or any of its Subsidiaries 


  21













  (each, a “Permitted Transferee”)
  without the prior written consent of the Company. Any such assignment shall
  be effective upon receipt by the Company of (x) written notice from the transferring
  Holder stating the name and address of the Permitted Transferee and identifying
  the number of shares of Registrable Securities with respect to which the rights
  under this Agreement are being transferred and the nature of the rights so
  transferred and (y) a written agreement in substantially the form attached
  as Exhibit A hereto from such Permitted Transferee to be bound by the applicable terms of
this Agreement. 


       Section 3.7    Counterparts; Execution by Facsimile Signature. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together shall constitute one instrument. This Agreement may be executed by facsimile signature(s). 


       Section 3.8    Remedies. (a) Each party hereto acknowledges that monetary damages would not be an adequate remedy
in the event that any of the covenants or agreements in this Agreement is not performed in accordance with its terms, and it is therefore agreed that, in addition to and without limiting any other remedy or right it may have, the non-breaching party
will have the right to an injunction, temporary restraining order or other equitable relief in any court of competent jurisdiction enjoining any such breach or threatened breach and enforcing specifically the terms and provisions hereof. Each party
hereto agrees to waive any requirement for the securing or posting of any bond in connection with such remedy. 


       (b) All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be
cumulative and not alternative, and the exercise or beginning of the exercise of any thereof by any party shall not preclude the simultaneous or later exercise of any other such right, power or remedy by such party. 


       Section 3.9    Notices. All notices required or permitted hereunder shall be in writing and shall be deemed
effectively given (i) upon personal delivery to the party to be notified, (ii) when sent by confirmed facsimile if sent during normal business hours of the recipient, if not, then on the next Business Day or (iii) one Business Day after deposit with
a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent to the addresses set forth below or such other address or facsimile number as a party may from time to
time specify by notice to the other parties hereto: 


       If to the Company:
  XL Capital Ltd, One Bermudiana Road, Hamilton HM 11, Bermuda, Attention: General
  Counsel, Fax: (441) 295-2840; and with a copy (which shall not constitute notice)
  to: Cadwalader, Wickersham & Taft, LLP, 1201 F Street, NW, Washington,
DC 20004; Attention: Mark C. Ellenberg; Fax (202) 862-2400. 


       If to XLFA
  or XLCA: 1221 Avenue of the Americas, New York NY 10020-1001; Attention: General
  Counsel; Fax: (212) 478-3587; and with a copy (which shall not constitute notice)
  to: Weil, Gotshal &
Manges LLP, 767 Fifth Avenue, New York, New York 10153; Attention: Joseph Verdesca;
Fax: (212) 310-8007 


  22













       Section 3.10    Governing Law; Consent to Jurisdiction. (a) This Agreement shall be governed in all respects by
the laws of the State of New York, without regard to its conflicts of laws principles. 


       (b) Each of the parties hereto (i) consents to submit itself to the personal jurisdiction of any Federal or state court located in the Borough
of Manhattan in the City of New York, New York in the event any dispute arises out of this Agreement, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court and
(iii) agrees that it will not bring any Action relating to this Agreement in any court other than a Federal or state court located in the Borough of Manhattan in the City of New York, New York. 


       (c) Each of the parties hereto hereby irrevocably and unconditionally waives trial by jury in any legal Action or proceeding in relation to
this Agreement and for any counterclaim therein. 


  [signature page follows] 

 

 

 

23












       IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement as of the date first written above. 

	XL CAPITAL LTD
	 
	By: 	/s/  Robert Kuzloski
	Name: 	Robert Kuzloski
	Title:	Senior Vice President
	 


 

 

 

[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]












  SYNCORA GUARANTEE RE LTD. 

FORMERLY KNOWN AS

XL FINANCIAL ASSURANCE LTD

 





	By: 	/s/  Tom
    Currie
	Name: 	Tom Currie
	Title:	Senior Vice President
	 





 

 

 

 

[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]












  SYNCORA GUARANTEE INC. 

FORMERLY KNOWN AS

XL CAPITAL ASSURANCE INC.


 


	By: 	/s/  Susan
        Comparato
	Name: 	Susan Comparato
	Title:	Senior Vice President and General Counsel
	 




 

 

 

[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]












  EXHIBIT A


  JOINDER


        Reference
  is made to the Registration Rights Agreement dated as of August 5, 2008 (as
  amended from time to time, the “Registration Rights Agreement”)
  among XL Capital Ltd, a Cayman Island corporation, Syncora Guarantee Re Ltd.
  (formerly known as XL Financial Assurance Ltd), a company domiciled in Bermuda
  and Syncora Guarantee Inc. (formerly known as XL Capital Assurance Inc.), a
  New York insurance company, and each other person who shall have become a party
to the Registration Rights Agreement in accordance with the terms thereof. 


        By execution
  of this Joinder, the undersigned agrees to become a party to the Registration
  Rights Agreement and to be bound by the terms, conditions, restrictions and
  provisions thereof as a “Holder” thereunder,
entitled to all of the rights available thereto and subject to all of the burdens
imposed thereon. 




	Name:
	 







	Address for Notices:	 	With Copies to:
	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 






	Signature: 
	 
	Date: 
	 






 

 

 

USActive 13547147.3