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Title: |
Registration Rights Agreement |
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Date: |
2004 |
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Preview shows 19KB of 110KB total |
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$45 |
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ID: |
#416979 |
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REGISTRATION RIGHTS AGREEMENT
Dated as of March 11, 2004
among
NYMAGIC, INC.
AND
KEEFE, BRUYETTE & WOODS, INC.
AND
THE OTHER INITIAL PURCHASERS
REFERRED TO HEREIN,
as the Initial Purchasers
{PAGE}
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of March
11, 2004 among NYMAGIC, INC., a New York corporation (the "Company"), Keefe,
Bruyette & Woods, Inc. (the "Representative") and the other parties referred to
in Annex A hereto (each, an "Initial Purchaser" and collectively, the "Initial
Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated
March 4, 2004, among the Company and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial
Purchasers of $100,000,000 aggregate principal amount of the Company's 6.50%
Senior Notes due 2014 (the "Notes"). In order to induce the Initial Purchasers
to enter into the Purchase Agreement and in satisfaction of a condition to the
Initial Purchasers' obligations thereunder, the Company has agreed to provide to
the Initial Purchasers and their respective direct and indirect transferees and
assigns the registration rights set forth in this Agreement. The execution and
delivery of this Agreement is a condition to the closing under the Purchase
Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as
amended from time to time, and the rules and regulations of the
SEC promulgated thereunder.
"1934 Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time, and the rules and regulations of
the SEC promulgated thereunder.
"Additional Interest" shall have the meaning set forth in
Section 2(e) hereof.
"Closing Time" shall mean March 11, 2004.
"Company" shall have the meaning set forth in the preamble
to this Agreement.
"Depositary" shall mean The Depository Trust Company, or
any other depositary appointed by the Company, including any
agent thereof; provided, however, that any such depositary must
at all times have an address in the Borough of Manhattan, The
City of New York.
"Event Date" shall have the meaning set forth in Section
2(e) hereof.
"Exchange Offer" shall mean the exchange offer by the
Company of Exchange Securities for Registrable Securities
pursuant to Section 2(a) hereof.
{PAGE}
"Exchange Offer Registration" shall mean a registration
under the 1933 Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean any
exchange offer registration statement of the Company on Form S-4
(or, if applicable, on another appropriate form) covering the
Registrable Securities, and all amendments and supplements to
such registration statement, in each case including the
Prospectus contained therein, all exhibits thereto and all
material incorporated or deemed to be incorporated by reference
therein.
"Exchange Securities" shall mean the securities issued by
the Company under the Indenture with terms identical to the
Securities (except that (i) interest thereon shall accrue from
the last date to which interest has been paid or duly provided
for on the Securities or, if no such interest has been paid or
duly provided for, from the Interest Accrual Date, (ii)
provisions relating to an increase in the stated rate of interest
thereon upon the occurrence of a Registration Default shall be
eliminated and (iii) the transfer restrictions and legends
relating to restrictions on ownership and transfer thereof as a
result of the issuance of the Securities without registration
under the 1933 Act shall be eliminated), to be offered to Holders
of Registrable Securities in exchange for Registrable Securities
pursuant to the Exchange Offer.
"Holders" shall mean (i) the Initial Purchasers, for so
long as they own any Registrable Securities, and each of their
respective successors, assigns and direct and indirect
transferees who become registered owners of Registrable
Securities under the Indenture and (ii) each Participating
Broker-Dealer that holds Exchange Securities for so long as such
Participating Broker-Dealer is required to deliver a prospectus
meeting the requirements of the 1933 Act in connection with any
resale of such Exchange Securities.
"Indenture" shall mean the Indenture, dated as of March
11, 2004, by and between the Company and Wilmington Trust
Company, as trustee, as amended and supplemented by a first
supplemental indenture, as the same may be further amended or
supplemented from time to time in accordance with the terms
thereof.
"Initial Purchasers" shall have the meaning set forth in
the preamble of this Agreement.
"Interest Accrual Date" means March 11, 2004.
"Majority Holders" shall mean the Holders of a majority of
the aggregate principal amount of Registrable Securities
outstanding, excluding Exchange Securities referred to in clause
(ii) of the definition of "Holders" above; provided that whenever
the consent or approval of Holders of a specified percentage of
Registrable Securities or Exchange Securities is required
hereunder, Registrable Securities and Exchange Securities held by
the Company or any of its affiliates (as such term is defined in
Rule 405 under the 1933 Act) shall be disregarded in
3
{PAGE}
determining whether such consent or approval was given by the
Holders of such required percentage.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"Notifying Broker-Dealer" shall have the meaning set forth
in Section 3(f) hereof.
"Participating Broker-Dealer" shall have the meaning set
forth in Section 3(f) hereof.
"Person" shall mean an individual, partnership, joint
venture, limited liability company, corporation, trust or
unincorporated organization, or a government or agency or
political subdivision thereof.
"Private Exchange Securities" shall have the meaning set
forth in Section 2(a) hereof.
"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and
any such prospectus as amended or supplemented by any prospectus
supplement, including a prospectus supplement with respect to the
terms of the offering of any portion of the Registrable
Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to a prospectus, including
post-effective amendments, and in each case including all
material incorporated or deemed to be incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in
the preamble to this Agreement.
"Registrable Securities" shall mean the Securities;
provided, however, that any Securities shall cease to be
Registrable Securities when (i) a Registration Statement with
respect to such Securities shall have been declared effective
under the 1933 Act and such Securities shall have been disposed
of pursuant to such Registration Statement, (ii) such Securities
shall have been sold to the public pursuant to Rule 144 (or any
similar provision then in force, but not Rule 144A) under the
1933 Act, (iii) such Securities shall have ceased to be
outstanding, (iv) such Securities have been exchanged for
Exchange Securities which have been registered pursuant to the
Exchange Offer Registration Statement upon consummation of the
Exchange Offer unless, in the case of any Exchange Securities
referred to in this clause (iv), such Exchange Securities are
held by Participating Broker-Dealers or otherwise are not freely
tradable without any limitations or restrictions under the 1933
Act (in which case such Exchange Securities will be deemed to be
Registrable Securities until the earlier of (A) 180 days after
the completion of the Exchange Offer and (B) such time as such
Exchange Securities are sold to a purchaser in whose hands such
Exchange Securities are freely tradeable without any limitations
or restrictions under the 1933 Act) or (v) such Securities have
been exchanged for Private Exchange
4
{PAGE}
Securities pursuant to this Agreement (in which case such Private
Exchange Securities will be deemed to be Registrable Securities
until the earlier of (A) 180 days after the completion of the
Exchange Offer and (B) such time as such Private Exchange
Securities are sold to a purchaser in whose hands such Private
Exchange Securities are freely tradeable without any limitations
or restrictions under the 1933 Act).
"Registration Default" shall have the meaning set forth in
Section 2(e) hereof.
"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance by the Company with this
Agreement, including without limitation: (i) all SEC, stock
exchange or NASD registration and filing fees; (ii) all fees and
expenses incurred in connection with compliance with state or
other securities or Blue Sky laws and compliance with the rules
of the NASD (including reasonable fees and disbursements of
counsel for any underwriters or Holders in connection with
qualification of any of the Exchange Securities or Registrable
Securities under state or other securities or Blue Sky laws and
any filing with and review by the NASD); (iii) all customary
expenses of any Persons in preparing, printing and distributing
any Registration Statement, any Prospectus, any amendments or
supplements thereto, and certificates representing the
Securities, Private Exchange Securities (if any) or Exchange
Securities and other documents relating to the performance of and
compliance with this Agreement; (iv) all rating agency fees; (v)
all application and filing fees incurred in connection with the
listing, if any, of any of the Securities, Private Exchange
Securities (if any) or Exchange Securities on any securities
exchange or exchanges or on any quotation system; (vi) all fees
and disbursements relating to the qualification of the Indenture
under applicable securities laws; (vii) the fees and
disbursements of counsel for the Company and the fees and
expenses of independent public accountants for the Company or for
any other Person, business or assets whose financial statements
are included in any Registration Statement or Prospectus,
including the expenses of any special audits or "cold comfort"
letters required by or incident to such performance and
compliance; (viii) the fees and expenses of a "qualified
independent underwriter" as defined by Conduct Rule 2720 of the
NASD (if required by the NASD rules) and the fees and
disbursements of its counsel; (ix) the fees and expenses of the
Trustee, any registrar, any depositary, any paying agent, any
escrow agent or any custodian, in each case including fees and
disbursements of their respective counsel; and (x) in the case of
an underwritten offering, any fees and disbursements of the
underwriters customarily paid by issuers and sellers of
securities and the fees and expenses of any special experts
retained by the Company in connection with any Registration
Statement but excluding (except as otherwise provided herein)
fees and disbursements of counsel to the underwriters and the
Holders and underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of Registrable
Securities by a Holder.
5
{PAGE}
"Registration Statement" shall mean any registration
statement of the Company relating to any offering of the Exchange
Securities or Registrable Securities pursuant to the provisions
of this Agreement (including, without limitation, any Exchange
Offer Registration Statement and any Shelf Registration
Statement), and all amendments and supplements to any such
Registration Statement, including post-effective amendments, in
each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated or deemed to be
incorporated by reference therein.
"Representative" shall have the meaning set forth in the
preamble of this Agreement.
"SEC" shall mean the Securities and Exchange Commission or
any successor thereto.
"Securities" shall mean the Notes.
"Shelf Registration" shall mean a registration effected
pursuant to Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company pursuant to the provisions
of Section 2(b) of this Agreement which covers all of the
Registrable Securities or Private Exchange Securities (if any),
as the case may be, on an appropriate form under Rule 415 under
the 1933 Act, or any similar rule that may be adopted by the SEC,
and all amendments and supplements to such registration
statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto
and all material incorporated or deemed to be incorporated by
reference therein.
"TIA" shall mean the Trust Indenture Act of 1939, as
amended from time to time, and the rules and regulations of the
SEC promulgated thereunder.
"Trustee" shall mean Wilmington Trust Company, the trustee
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