TENDER AND SUPPORT AGREEMENT
Exhibit
2.5
This
Tender and Support Agreement, dated as of July 5, 2009 (this “Agreement”) is between
Xxxx-Xxxxx Xxxxxxxx (“Warrantholder”), and PartnerRe
Ltd., a Bermuda exempted company (“Parent”). Capitalized terms
used but not defined herein have the meanings assigned to them in the
Transaction Agreement (the “Transaction Agreement”) dated
as of the date of this Agreement, between Parent and PARIS RE Holdings Limited,
a Swiss corporation (the “Company”).
WHEREAS,
Warrantholder owns the warrants (“Company Warrants”) to purchase
shares of common stock of the Company, CHF 4.51 par value per share, set forth
on Schedule A (“Company
Shares”) (all such warrants on Schedule A, the “Schedule A
Warrants”).
WHEREAS,
concurrently with the execution and delivery of this Agreement, Parent and the
Company are entering into the Transaction Agreement that provides for, among
other things, (i) the making of an exchange offer (the “Offer”) by a wholly owned
Subsidiary of Parent (“Purchaser”) for all of the
outstanding Company Shares and Company Warrants that are not owned by Parent and
its Subsidiaries prior to the commencement of the Offer, after giving effect to
the transactions contemplated by the Securities Purchase Agreement and (ii),
provided that Parent and its Subsidiaries own at least 90% of the outstanding
Company Shares following consummation of the Offer, the merger of the Company
with and into Purchaser immediately thereafter, upon the terms and subject to
the conditions set forth therein.
WHEREAS,
as a condition to Parent’s willingness to enter into the Transaction Agreement
and the Securities Purchase Agreement, Parent has required that Warrantholder
enter into this Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants,
representations, warranties and agreements set forth herein, and intending to be
legally bound, the parties agree as follows:
SECTION
1. Certain Definitions.
The following capitalized terms, as used in this Agreement, shall have the
meanings set forth below:
“beneficial ownership” of any
security by any Person means “beneficial ownership” of such security as
determined pursuant to Rule 13d-3 under the Exchange Act, including all
securities as to which such Person has the right to acquire, without regard to
the 60-day period set forth in such rule. The terms “beneficially owned” and “beneficial owner” shall have
correlative meanings.
“Covered Warrants” means (i)
the Schedule A Warrants and (ii) all Company Warrants of which Warrantholder
acquires beneficial ownership during the Agreement Period.
SECTION
2. Agreement to Tender.
Warrantholder hereby agrees to validly tender or cause to be tendered in the
Offer all of the Covered Warrants in exchange for 0.167 common shares, US$1.00
par value per share, of Parent (the “Parent Shares”) per Company
Warrant,
SECTION
3. Documentation and
Information. Warrantholder (i) consents to and authorizes, the
publication and disclosure by Parent of Warrantholder’s identity and holding of
Company Warrants, the nature of Warrantholder’s commitments, arrangements and
understandings under this Agreement (including, for the avoidance of doubt, the
disclosure of this Agreement) and any other information, in each case, that
Parent reasonably determines is required to be disclosed by Applicable Law in
any press release, the Offer Documents, the Reply Documents, the S-4, the Proxy
Statement (including all schedules and documents filed with the SEC or the AMF)
or any other disclosure document in connection with the Offer, the Merger and
any transactions contemplated by the Transaction Agreement and the Securities
Purchase Agreement, and (ii) agrees as promptly as practicable to give to Parent
any information it may reasonably require for the preparation of any such
disclosure documents. Warrantholder agrees to as promptly as practicable notify
Parent of any required corrections with respect to any information supplied by
Warrantholder specifically for use in any such disclosure document, if and to
the extent that any such information shall have become false or misleading in
any material respect. Parent shall provide Warrantholder with a reasonable
opportunity to comment on any such publication or disclosure concerning
Warrantholder and to consider in good faith Warrantholder’s comments thereon (it
being understood that no such comment period shall be required where
Warrantholder has previously reviewed and commented on substantially consistent
disclosure).
SECTION
4. Representations and
Warranties of Warrantholder. Warrantholder represents and warrants to
Parent as follows (it being understood that, except where expressly stated to be
given or made as of the date hereof only, the representations and
warranties
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(a) Authorization. Warrantholder
has full legal capacity, right and authority to execute and deliver this
Agreement and to perform his obligations hereunder. This Agreement has been duly
executed and delivered by Warrantholder and constitutes a valid and legally
binding obligation of Warrantholder, enforceable against Warrantholder in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights generally and general equitable
principles (whether considered in a proceeding in equity or at
law).
(b) No Violation. The execution,
delivery and performance of this Agreement and the consummation by
Warrantholder of the transactions contemplated hereby (i) will not violate any
order of any Governmental Authority by which Warrantholder or any of its
Affiliates is bound, (ii) will not
violate any Applicable Law, (iii) do not require any consent or approval of,
registration or filing with, or other action by, any Governmental Authority,
except such as have been obtained and are in full force and effect, and (iv)
will not violate or result in a default under any material agreement, judgment,
injunction, order, decree or other instrument binding upon Warrantholder, with
only such exceptions that, individually or in the aggregate, would not
reasonably be expected to adversely affect in any material respect
Warrantholder’s ability to consummate the transactions contemplated by this
Agreement to be consummated by it.
(c) Ownership of Warrants. As of
the date hereof, Warrantholder is, and at all times during the Agreement
Period will be the sole record and beneficial owner of Warrantholder’s Schedule
A Warrants. As of the date hereof, the Schedule A Warrants together constitute
all of the Company Warrants beneficially owned by Warrantholder. As of the date
hereof, the Schedule A Warrants are issued and outstanding and, upon exercise
thereof, will be entitled to be voted at the Company shareholder meetings. The
Covered Warrants shall at all times be free and clear of Liens, proxies, powers
of attorney, voting trusts, options, rights of first offer or refusal or
agreements (other than any Liens or proxy created by this Agreement). Except as
provided in this Agreement, there are no agreements or arrangements of any kind,
contingent or otherwise, to which Warrantholder is a party obligating
Warrantholder to Transfer, or cause to be Transferred, any of the Covered
Warrants. Except pursuant to this Agreement and the Transaction Agreement, no
Person has any contractual or other right or obligation to purchase or otherwise
acquire any of the Covered Warrants.
(d) Absence of Litigation. With
respect to Warrantholder, as of the date hereof, there is no action, suit,
investigation or proceeding pending against, or, to the knowledge of
Warrantholder, threatened against or affecting, Warrantholder or any of his
properties or assets (including the Covered Warrants) that could reasonably be
expected to impair the ability of Warrantholder to perform his obligations
hereunder or to consummate the transactions contemplated hereby on a timely
basis.
(e) Opportunity to Review;
Reliance. Warrantholder has had the opportunity to review this Agreement, the
Securities Purchase Agreement and the Transaction Agreement with counsel of his
own choosing. Warrantholder understands and acknowledges that Parent is entering
into
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(f) Finders’ Fees. No investment
banker, broker, finder or other intermediary is entitled to a fee or commission
from Parent or the Company in respect of this Agreement based upon any
arrangement or agreement made by or on behalf of Warrantholder in his capacity
as such except for (i) reasonable costs and expenses incurred by Warrantholder’s
counsels in connection with this Agreement and (ii) additional and/or increased
fees and/or commissions for the benefit of Credit Suisse resulting from the
inclusion of the value of the Covered Warrants or otherwise from the entering
into this Agreement for purposes of determining the fees and commissions, if
any, that Credit Suisse may be owed in connection with the transactions
contemplated by the Transaction Agreement and the Securities Purchase Agreement
(as defined in the Transaction Agreement).
SECTION
5. Representations and
Warranties of Parent. Parent represents and warrants to Warrantholder, as
of the date hereof and as of the date of each Company Shareholders Meeting and
the final settlement date of the Offer, that it has full corporate or other
power and authority to execute and deliver this Agreement and, subject to
obtaining the Parent Shareholder Approvals, to perform its obligations
hereunder. The execution and delivery by Parent of this Agreement and the
consummation by Parent of the transactions contemplated hereby have been duly
authorized by all necessary action on the part of Parent. This Agreement has
been duly executed and delivered by Parent and constitutes a valid and legally
binding obligation of Parent, enforceable against Parent in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors’ rights generally and general equitable principles (whether considered
in a proceeding in equity or at law). As of the date hereof, there is no action,
suit, investigation or proceeding pending against, or, to the knowledge of
Parent, threatened against or affecting, Parent or any of its properties or
assets that could reasonably be expected to impair the ability of such Parent to
perform its obligations hereunder or to consummate the transactions contemplated
hereby on a timely basis.
SECTION
6. No Encumbrances on Covered
Warrants. (a) Except pursuant to the terms of this Agreement or as agreed
in writing by Parent, during the Agreement Period, Warrantholder shall not (and
shall not permit any Person under Warrantholder’s control or any of his
representatives to), without the prior written consent of Parent, directly or
indirectly, (i) sell (including short sell), assign, transfer, tender, pledge,
encumber, grant a participation interest in, hypothecate or otherwise dispose of
(including by gift) (each, a “Transfer”), (ii) otherwise
permit any Liens to be created on, or (iii) enter into any contract or
agreement, (including any derivative, hedging or other agreement), option or
other arrangement (including any profits sharing arrangement) or understanding
with respect to the direct or indirect Transfer of, any Covered Warrants.
Warrantholder shall not (and shall not permit any Person under Warrantholder’s
control or any of his representatives to) seek or solicit any such Transfer or
any such contract or agreement, option or other arrangement or understanding.
Without limiting the foregoing, Warrantholder shall not (and shall not permit
any Person under Warrantholder’s control or any of his representatives to) take
any other action that would make any representation or warranty of Warrantholder
contained herein untrue or incorrect in any material respect or in any way
restrict, limit or interfere in any material respect with the performance
of
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(b)
Warrantholder shall not (and shall not permit any Person under Warrantholder’s
control or any of his representatives to) request that the Company register the
Transfer (book- entry or otherwise) of any certificate or uncertificated
interest representing any of the Covered Warrants, unless such Transfer is made
in compliance with this Agreement. Warrantholder hereby authorizes Parent to
direct the Company to impose stop orders to prevent the Transfer of any Covered
Warrants on the books of the Company in violation of this
Agreement.
SECTION
7. Notices of Certain
Events. Warrantholder shall notify Parent of any development occurring
after the date hereof that causes, or that would reasonably be expected to
cause, any material breach of any of the representations and warranties of
Warrantholder set forth in Section 4.
SECTION
8. Further Assurances.
Parent and Warrantholder will each execute and deliver, or cause to be executed
and delivered, all further documents and instruments and use their respective
reasonable best efforts to take, or cause to be taken, all actions and to do, or
cause to be done, all things necessary, proper or advisable under Applicable Law
and regulations, to perform their respective obligations under this
Agreement.
SECTION
9. Director
Protections. Parent agrees, for the benefit of Warrantholder, to perform
and comply in full with its obligations under Sections 8.05 and 8.08 of the
Transaction Agreement.
SECTION
10. Certain
Adjustments. In the event of a stock split, stock dividend or
distribution, or any change in the Company Shares or Company Warrants by reason
of a stock split, reverse stock split, recapitalization, combination,
reclassification, readjustment, exchange of shares or the like, the terms
“Schedule A Warrants” and “Covered Warrants” shall be deemed to refer to and
include such shares as well as all such stock dividends and distributions and
any securities into which or for which any or all of such shares may be changed
or exchanged or which are received in the transaction.
SECTION
11. Miscellaneous. (a)
Notices. All notices,
requests and other communications to any party hereunder shall be in writing
(including facsimile transmission and electronic mail (“e-mail”) transmission, so long
as a receipt of such e-mail is requested and received) and shall be
given,
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Wellesley
Xxxxx
00 Xxxxx
Xxx Xxxx
Xxxxxxxx
XX
00
Xxxxxxx
Xxxxxxxxx:
Xxxxxx Xxxxxxxxx
Facsimile
No.: (000) 000-0000
E-mail:
xxxxxx.xxxxxxxxx@xxxxxxxxx.xxx
with a
copy to:
Xxxxx
Xxxx & Xxxxxxxx LLP
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxx X. Xxxxx
Facsimile
No.: (000) 000-0000
E-mail:
xxxxxxx.xxxxx@xxxxxxxxx.xxx
If to
Warrantholder:
Xxxx-Xxxxx
Xxxxxxxx
PARIS RE
Holdings Limited
Xxxxxxxxxxx
00
Xxxxxxxx
000
0000 Xxx,
Xxxxxxxxxxx
Facsimile
No.: x00-00-000-00-00
E-mail:
xxxxxxxxx.xxxxxxxx@xxxxx-xx.xxx
with a
copy to:
Xxxxxxxxx
XX
Xxxxxxxxxxxxxxx
00
XX-0000
Xxxxxx
Attention:
Hansjuerg Xxxxxxxxxxx
Facsimile
No.: x00-00-000-00-00
E-mail:
xxxxxxxxx.xxxxxxxxxxx@xxxxxxxxx.xx
or to
such other address or facsimile number as such party may hereafter specify for
the purpose by notice to the other parties hereto. All such notices, requests
and other communications shall be deemed received on the date of receipt by the
recipient thereof if received prior to 5:00 p.m. on a business day in the place
of receipt. Otherwise, any such notice, request or communication shall be deemed
not to have been received until the next succeeding business day in the place of
receipt.
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(ii) This
Agreement shall not confer any rights, remedies, benefits, obligations or
liabilities upon any Person or entity other than the parties hereto and their
respective permitted successors and permitted assigns.
(iii) This
Agreement may only be amended by a written instrument executed and delivered by
Parent and Warrantholder.
(c) Assignment; Binding Effect.
Neither Warrantholder, on the one hand, nor Parent, on the other hand, may
assign this Agreement or any of his or its rights, interests or obligations
hereunder (whether by operation of Applicable Law or otherwise) without the
prior written approval of Parent or Warrantholder, as applicable, and any
attempted assignment without such prior written approval shall be void and
without legal effect; provided, however, that each party may
assign its rights hereunder to one or more of its controlled Affiliates; it
being understood and agreed that any such assignment shall not relieve such
party of its obligations hereunder. Subject to the preceding sentence, this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective permitted successors and permitted assigns.
(d) Termination. This Agreement
shall automatically terminate and become void and of no further force or
effect at the end of the Agreement Period; provided, however, that no such
termination shall relieve or release Warrantholder or Parent from any
obligations or liabilities arising out of his or its breach of this Agreement
prior to its termination.
(e) Governing Law. (i) This
Agreement shall be governed by and construed in accordance with the
laws of Switzerland.
(f) Jurisdiction. The parties
hereto agree that any suit, action or proceeding seeking to enforce any provision
of, or based on any matter arising out of or in connection with, this Agreement
or the transactions contemplated hereby shall be brought in the Commercial Court
of the Canton of Zurich.
(g) Severability. If any term,
provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction or other Governmental Authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such a determination, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner in order
that the transactions contemplated hereby be consummated as originally
contemplated to the fullest extent possible.
(h) Specific Performance. The
parties hereto agree that irreparable damage would occur if any provision
of this Agreement were not performed in accordance with the specific terms
hereof and that the parties shall be entitled to an injunction or injunctions to
prevent
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(i) Expenses. All costs and
expenses incurred in connection with this Agreement shall be paid by or on behalf
of the party incurring such cost or expense except for reasonable costs and
expenses incurred by Warrantholder’s counsels in connection with this Agreement
which shall be paid by the Company.
(j) Counterparts; Effectiveness.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Agreement shall become effective
when each party hereto shall have received a counterpart hereof signed by all of
the other parties hereto. Until and unless each party has received a counterpart
hereof signed by the other party hereto, this Agreement shall have no effect and
no party shall have any right or obligation hereunder (whether by virtue of any
other oral or written agreement or other communication).
(k) Other Definitional and
Interpretative Provisions. The words “hereof”, “herein” and “hereunder” and
words of like import used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement. The captions herein
are included for convenience of reference only and shall be ignored in the
construction or interpretation hereof. References to Articles, Sections and
Schedules are to Articles, Sections and Schedules of this Agreement unless
otherwise specified. All Schedules annexed hereto or referred to herein are
hereby incorporated in and made a part of this Agreement as if set forth in full
herein. Any capitalized terms used in any Schedule but not otherwise defined
therein, shall have the meaning as defined in this Agreement. Any singular term
in this Agreement shall be deemed to include the plural, and any plural term the
singular. Whenever the words “include”, “includes” or “including” are used in
this Agreement, they shall be deemed to be followed by the words “without
limitation”, whether or not they are in fact followed by those words or words of
like import. “Writing”, “written” and comparable terms refer to printing, typing
and other means of reproducing words (including electronic media) in a visible
form. References to any statute shall be deemed to refer to such statute as
amended from time to time and to any rules or regulations promulgated
thereunder. References to any agreement or contract are to that agreement or
contract as amended, modified or supplemented from time to time in accordance
with the terms hereof and thereof. References to any Person include the
successors and permitted assigns of that Person. References from or through any
date mean, unless otherwise specified, from and including or through and
including, respectively. References to “law”, “laws” or to a particular statute
or law shall be deemed also to include any and all Applicable Law.
(l) No Presumption. This
Agreement shall be construed without regard to any presumption or rule
requiring construction or interpretation against the party drafting or causing
any instrument to be drafted.
(m) No Limitation on Actions as Director
or Officer. Notwithstanding any other provision of this
Agreement, nothing in this Agreement is intended to, or shall be construed to,
prohibit Warrantholder from taking any action in his capacity as a member of the
Company’s
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The parties hereto have executed this Tender and Support Agreement
as of the date first written above.
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Xxxx-Xxxxx
Xxxxxxxx
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By:
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/s/
Xxxx-Xxxxx Xxxxxxxx
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Name:
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Xxxx-Xxxxx
Xxxxxxxx
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Title:
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Chief Executive Officer | ||
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By:
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/s/ Xxxxxx Xxxxxxxxx |
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Name:
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Xxxxxx Xxxxxxxxx |
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Title:
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Chief Financial Officer | ||
