Exhibit 99.1
SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT (this "Agreement") is made and entered into
as of August 20, 2003, by and between Teachers Insurance and Annuity Association
of America, located at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 ("Seller")
and Endurance Specialty Holdings Ltd., an exempted company organized in Bermuda
(the "Company").
WHEREAS, Seller desires to sell to the Company, and the Company desires to
purchase from Seller, 750,000 ordinary shares, par value US$1.00 per share (the
"Shares"), of the Company, for the amount set forth below and subject to the
terms, conditions, promises, representations and warranties set forth herein;
and
WHEREAS, the parties hereto desire to set forth herein the terms and
conditions of their agreements and understandings.
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
herein contained and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby covenant and agree as follows:
1. Sale and Transfer of the Shares. Seller hereby sells, assigns,
transfers, conveys and delivers the Shares to the Company.
2. Instruments of Conveyance and Transfer. Simultaneously with the
execution hereof, Seller is delivering to the Company either (x) a stock
certificate endorsed in blank or (y) a duly executed assignment separate from
such certificate, in either case evidencing the transfer of the Shares, dated
the date hereof, and in such form satisfactory to the Company as shall be
effective to vest in the Company good and valid title to the Shares, free and
clear of any option, call, contract, commitment, demand, lien, charge, security
interest or encumbrance whatsoever. Seller shall at any time, and from time to
time, after the date hereof, execute, acknowledge and deliver all further
assignments, transfers, and any other such instruments of conveyance, upon the
request of the Company, to confirm the sale of the Shares hereunder.
3. Payment by Buyer. Simultaneously with the execution hereof, the Company
is purchasing the Shares at a purchase price of US$27.06 per share, for an
aggregate purchase price of US$20,295,000.00, by wire transfer of immediately
available funds.
4. Representations and Warranties of Seller. Seller represents and
warrants that:
(a) Seller has the full, absolute and entire power and legal right
to execute, deliver and perform this Agreement.
(b) The execution and delivery by the Seller of this Agreement and
the consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary action on part of the Seller and when duly
and validly executed, will constitute a legal, valid and binding obligation of
the Seller enforceable against the Seller in accordance with its terms.
(c) The Shares are owned of record and beneficially by Seller, free
and clear of any option, call, contract, commitment, demand, lien, charge,
security interest or encumbrance whatsoever.
5. Representations and Warranties of the Company. The Company represents
and warrants that:
(a) The Company has the full, absolute and entire power and legal
right to execute, deliver and perform this Agreement.
(b) The execution and delivery by the Company of this Agreement and
the consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary action on part of the Company and when duly
and validly executed, will constitute a legal, valid and binding obligation of
the Company enforceable against the Company in accordance with its terms.
6. Acknowledgments. Seller acknowledges that:
(a) Seller has not relied upon any representations (whether oral or
written) with respect to the Company or the Shares other than as set forth in
this Agreement.
(b) Seller has had an opportunity to discuss the Company's business,
management and financial affairs with directors, officers and management of the
Company. Seller has also had the opportunity to ask questions of and receive
answers from, the Company and its management regarding the terms of this
transaction. Seller believes that it has received all the information it
considers necessary or appropriate for deciding whether to sell the Shares.
(c) The Seller represents that it (i) is a "qualified institutional
buyer" within the meaning of Rule 144A promulgated under the Securities Act of
1933, as amended (the "Securities Act"), or an institutional "accredited
investor" as that term is defined in Regulation D promulgated under the
Securities Act ("Regulation D") and has such knowledge, sophistication and
experience in financial and business matters as to be capable of evaluating
independently the merits, risks and suitability of entering into this Agreement
and the transactions contemplated hereby, (ii) is able to bear the risks
attendant to the transactions contemplated hereby, and (iii) is dealing with the
Company on a professional arm's-length basis as defined in Regulation D.
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(d) Seller acknowledges and agrees that it has had a full and
complete opportunity to consult legal, tax and business advisors and has in fact
consulted such advisors with respect to this agreement and any matters
contemplated hereunder. Seller further acknowledges that it has not engaged or
employed any broker or finder in connection with the transactions referred to
herein and that the sale of the Shares has been privately negotiated by the
Seller and the Company.
7. Governing Law. This Agreement shall be construed in accordance with the
laws of Bermuda.
8. Invalidity or Unenforceability. In case any one or more of the
provisions contained in this Agreement shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect the other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
9. Benefits and Burdens. This Agreement is binding upon, and inures to the
benefit of, the parties hereto and their respective estates, executors,
administrators, legatees, heirs, and personal and legal representatives,
successors and permitted assigns.
10. Change; Waiver. No change or modification of this Agreement shall be
valid unless the same is in writing and signed by the parties hereto. No waiver
of any provision of this Agreement shall be valid unless in writing and signed
by the party waiving its rights. The failure of either party at any time to
insist upon, or any delay by either party at any time to insist upon, strict
performance of any condition, promise, agreement or understanding set forth
herein shall not be construed as a waiver or relinquishment of the right to
insist upon strict performance of the same condition, promise, agreement or
understanding at a future time.
11. Entire Agreement. This Agreement sets forth all of the promises,
agreement, conditions, understandings and covenants between the parties hereto
with respect to the subject matter referred to herein, and there are no promises
other than as set forth herein. Any and all prior agreements with respect to
such subject matter are hereby revoked. This Agreement is, and is intended by
the parties to be, an integration of any and all prior agreements or
understandings, oral or written, with respect to such subject matter.
12. Headings. The headings and other captions in this Agreement are for
convenience and reference only and shall not be used in interpreting, construing
or enforcing any of the provisions of this Agreement.
13. Counterparts. This Agreement may be executed in any number of
counterparts, which may be by facsimile, all of which counterparts taken
together shall constitute one and the same instrument.
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[Execution Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
COMPANY:
ENDURANCE SPECIALTY HOLDINGS LTD.
By: /s/ Xxxxxxx X. XxXxxxxxx
--------------------------
Name: Xxxxxxx X. XxXxxxxxx
Title: Chairman, President &
Chief Executive Officer
SELLER:
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By: /s/ Xxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxx X. Xxxxx
Title: Director
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