EXHIBIT 99.1
AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF MERGER
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This AMENDMENT NO. 1, dated as of April 26, 1999, to the AGREEMENT
AND PLAN OF MERGER (the "Agreement"), dated as of February 15, 1999, among XL
CAPITAL LTD, a limited liability company organized and incorporated under the
laws of the Cayman Islands ("Parent"), DASHER ACQUISITION CORP., a Delaware
corporation and a direct wholly owned subsidiary of Parent ("Sub"), and NAC RE
CORP., a Delaware corporation (the "Company").
WHEREAS, the parties hereto desire to amend certain provisions of
the Agreement and to add additional provisions thereto;
WHEREAS, Section 8.2 of the Agreement provides in relevant part that
the parties may amend, modify and supplement the Agreement, by written agreement
of the parties thereto, pursuant to action taken by their respective Boards of
Directors.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereby agree as follows:
1. Unless the context otherwise requires, references in the Agreement to
"this Agreement" shall be deemed to be references to the Agreement as amended by
this Amendment No. 1.
2. Article V. COVENANTS. Section 5.1(a) of the Agreement shall be amended
by deleting such section in its entirety and inserting in lieu thereof the
following:
(a) split, combine or reclassify any shares of its capital stock;
declare, pay or set aside for payment any dividend or other distribution
payable in cash, stock, property or otherwise in respect of its capital
stock (other than quarterly cash dividends upon the shares of Company
Common Stock in an amount not to exceed $0.09 per share, provided,
however, that in the event that the Effective Time does not occur on or
prior to July 1, 1999, such amount may be increased in respect of the
dividend for the Company's second fiscal quarter and any fiscal quarter
thereafter through the termination of the Agreement to $.4026 per share,
and dividends paid to the Company by its wholly owned subsidiaries); or
directly or indirectly redeem, purchase, repurchase or otherwise acquire
any shares of its capital stock or any securities or obligations
convertible into or exchangeable for any shares of its capital stock other
than the forfeiture or repurchase of Company Common Stock pursuant to
Company Plans in accordance with the terms thereof as in effect on the
date hereof;
3. Article VII. TERMINATION. Section 7.3 of the Agreement shall be amended
by inserting the following after Section 7.3(d):
(e) In the event this Agreement is terminated by mutual consent
pursuant to Section 7.1(a), by the Company pursuant to Sections 7.1(b),
7.1(c), 7.1(f), 7.1(g) or 7.1(i) or by Parent pursuant to Sections 7.1(b),
7.1(c) (unless the conditions set forth in Sections 6.1(a), 6.2(a), 6.2(b)
or 6.2(c) shall not be satisfied as of the time of such termination) or
7.1(i) (unless the Company shall have breached a representation, warranty
or covenant which breach (or the substance thereof) shall be a cause of
the termination under Section 7.1(i)) and the Company has declared an
increase in respect of its quarterly cash dividend for the Company's
second fiscal quarter or any quarter thereafter in accordance with the
terms of Section 5.1(a), the Company shall deliver to Parent written
notice of the Dividend Increase (as hereinafter defined), together with
reasonable supporting documentation, and on the third business day
following notice of the Dividend Increase Parent shall pay to the Company
by wire transfer, to an account designated by the Company, an amount equal
to the Dividend Increase.
For purposes of this Section 7.3(e), "Dividend Increase" means:
if the Company has declared a quarterly cash dividend upon shares of
Company Common Stock for the second fiscal quarter of 1999 or any
subsequent fiscal quarter through the Termination Date, the
aggregate sum of the Excess Dividend (as hereinafter defined) for
each such fiscal quarter.
For purposes of this Section 7.3(e), the "Excess Dividend" for a
fiscal quarter means:
the product of (i) the amount per share of the quarterly cash
dividend upon shares of Company Common Stock for such fiscal quarter
minus $0.09 and (ii) the number of shares of Company Common Stock
issued and outstanding as of the close of business on the record
date for determining stockholders entitled to receive such quarterly
cash dividend.
4. Remainder of Agreement Unaffected. Except as specifically set forth in
this Amendment No. 1, the Agreement shall remain in full force and effect and no
other provision thereof shall be deemed modified by this Amendment No. 1.
5. Governing Law. This Amendment No. 1 shall be governed and construed
in accordance with the laws of the State of Delaware without giving effect to
the principles of conflicts of law thereof.
6. Counterparts. This Amendment No. 1 may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
IN WITNESS WHEREOF, Parent, Sub and the Company have caused this Amendment
No. 1 to be signed by their respective officers thereunto duly authorized as of
the date first written above.
XL CAPITAL LTD
By: /s/ XXXXX X. X'XXXX
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Name: Xxxxx X. X'Xxxx
Title: President and Chief
Executive Officer
ATTEST: /s/ XXXX X. XXXXXXXX
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Secretary
[SEAL]
DASHER ACQUISITION CORP.
By: /s/ XXXXX X. X'XXXX
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Name: Xxxxx X. X'Xxxx
Title: President
NAC RE CORP.
By: /s/ XXXXXXXX X. XXXXX, XX.
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Name: Xxxxxxxx X. Xxxxx, Xx.
Title: President and Chief
Executive Officer
