AGREEMENT AND PLAN OF AMALGAMATION Dated as of March 31, 2009 Between IPC HOLDINGS, LTD., VALIDUS HOLDINGS, LTD. And VALIDUS LTD.
Exhibit 99.2
AGREEMENT AND PLAN OF AMALGAMATION
Dated as of March 31, 2009
Between
IPC HOLDINGS, LTD.,
VALIDUS HOLDINGS, LTD.
And
VALIDUS LTD.
TABLE OF CONTENTS
| Page | ||||
ARTICLE I |
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THE AMALGAMATION |
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1.1 The Amalgamation; Effective Time |
1 | |||
1.2 Closing |
1 | |||
1.3 Effects of the Amalgamation |
2 | |||
1.4 Amalgamated Company Bye-laws |
2 | |||
1.5 [Reserved] |
2 | |||
1.6 Directors and Officers of the Amalgamated Company |
2 | |||
1.7 Amalgamated Company Name |
2 | |||
ARTICLE II |
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CONVERSION OF IPC SECURITIES; EXCHANGE OF CERTIFICATES |
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2.1 Effect on Share Capital |
2 | |||
2.2 Exchange Procedures |
3 | |||
2.3 IPC Equity Awards |
5 | |||
ARTICLE III |
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REPRESENTATIONS AND WARRANTIES |
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3.1 Organization, Standing and Power |
8 | |||
3.2 Capital Structure |
8 | |||
3.3 Authority; Non-Contravention |
9 | |||
3.4 SEC Documents; Regulatory Reports; Undisclosed Liabilities |
10 | |||
3.5 Compliance with Applicable Laws and Reporting Requirements
|
11 | |||
3.6 Legal and Arbitration Proceedings and Investigations |
12 | |||
3.7 Taxes |
13 | |||
3.8 Absence of Certain Changes or Events |
15 | |||
3.9 Board Approval |
15 | |||
3.10 Vote Required |
16 | |||
3.11 Agreements with Regulators |
16 | |||
3.12 Insurance Matters |
16 | |||
3.13 Investments; Derivatives |
20 | |||
3.14 Material Contracts; Intercompany Contracts |
21 | |||
3.15 Employee Benefits and Executive Compensation |
22 | |||
3.16 Labor Relations and Other Employment Matters |
23 | |||
3.17 Intellectual Property |
24 | |||
3.18 Properties |
25 | |||
3.19 Brokers or Finders |
25 | |||
3.20 Investment Advisor |
25 | |||
3.21 Opinion of Financial Advisor |
25 | |||
3.22 Takeover Laws |
25 | |||
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| Page | ||||
ARTICLE IV |
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COVENANTS RELATING TO CONDUCT OF BUSINESS |
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4.1 Covenants of Validus and IPC |
26 | |||
4.2 Financing |
29 | |||
4.3 Bermuda Required Actions |
29 | |||
ARTICLE V |
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ADDITIONAL AGREEMENTS |
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5.1 Preparation of Proxy Statements; Shareholders Meetings
|
29 | |||
5.2 Access to Information; Confidentiality |
31 | |||
5.3 Commercially Reasonable Efforts |
32 | |||
5.4 No Change in Recommendation |
33 | |||
5.5 Acquisition Proposals |
34 | |||
5.6 Section 16 Matters |
36 | |||
5.7 Fees and Expenses |
36 | |||
5.8 Indemnification; Directors’ and Officers’ Insurance |
37 | |||
5.9 Public Announcements |
37 | |||
5.10 Additional Agreements |
38 | |||
5.11 Shareholder Litigation |
38 | |||
5.12 Employee Benefits |
38 | |||
5.13 Listing and Delisting; Reservation for Issuance |
38 | |||
5.14 Dividends |
39 | |||
5.15 Tax Treatment |
39 | |||
5.16 Book Value Calculations |
39 | |||
ARTICLE VI |
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6.1 Conditions to Each Party’s Obligation to Effect the
Amalgamation |
40 | |||
6.2 Conditions to Obligation of IPC |
41 | |||
6.3 Conditions to Obligation of Validus |
42 | |||
ARTICLE VII |
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TERMINATION AND AMENDMENT |
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7.1 Termination |
43 | |||
7.2 Effect of Termination |
44 | |||
ARTICLE VIII |
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GENERAL PROVISIONS |
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8.1 Non-Survival of Representations, Warranties and Agreements
|
46 | |||
8.2 Notices |
46 | |||
8.3 Interpretation |
47 | |||
8.4 Counterparts |
47 | |||
8.5 Entire Agreement; No Third Party Beneficiaries |
47 | |||
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| Page | ||||
8.6 Governing Law |
48 | |||
8.7 Severability |
48 | |||
8.8 Assignment |
48 | |||
8.9 Enforcement |
48 | |||
8.10 Submission to Jurisdiction |
48 | |||
8.11 Amendment |
48 | |||
8.12 Extension; Waiver |
49 | |||
8.13 Defined Terms |
49 | |||
Exhibit A Amalgamation Agreement |
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Exhibit B [Reserved] |
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Exhibit C [Reserved] |
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Exhibit D [Reserved] |
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Exhibit E IPC Bye-Law Amendment |
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Exhibit F Supplement to Section 4.1 of IPC Disclosure Letter |
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AGREEMENT AND PLAN OF AMALGAMATION, dated as of March 31, 2009 (this “Agreement”),
between IPC HOLDINGS, LTD., a Bermuda exempted company (“IPC”), VALIDUS HOLDINGS, LTD., a
Bermuda exempted company (“Validus”) and VALIDUS LTD., a Bermuda exempted company and a
wholly owned subsidiary of Validus (“Amalgamation Sub”).
WHEREAS, the board of directors of IPC has adopted this Agreement and the Amalgamation
Agreement (as defined in Section 1.1) and authorized and approved the amalgamation of IPC with
Amalgamation Sub upon the terms and subject to the conditions set forth herein (the
“Amalgamation”), authorized and approved the IPC Bye-Law Amendment (as defined in Section
3.9(a)) and deems it fair to, advisable to and in the best interests of IPC to enter into this
Agreement and to consummate the Amalgamation and the other transactions contemplated hereby;
ARTICLE I
THE AMALGAMATION
1.1 The Amalgamation; Effective Time. Subject to the provisions of this Agreement and
the amalgamation agreement attached as Exhibit A (the “Amalgamation Agreement”),
Amalgamation Sub and IPC will cause an application for registration of an amalgamated company (the
“Amalgamation Application”) to be prepared, executed and delivered to the Registrar of
Companies in Bermuda (the “Registrar”) as provided under S.108 of the Companies Act on or
prior to the Closing Date and will cause the Amalgamation to become effective pursuant to the
Companies Act. The Amalgamation shall become effective upon the issuance of a Certificate of
Amalgamation by the Registrar or such other time as the Certificate of Amalgamation may provide.
The parties agree that they will request the Registrar provide in the Certificate of Amalgamation
that the Effective Time will be the time when the Amalgamation Application is filed with the
Registrar or another time mutually agreed by the parties (the “Effective Time”).
1.2 Closing. The closing of the Amalgamation (the “Closing”) will take place
at 10:00 a.m. on the date (the “Closing Date”) that is the third business day after the
satisfaction or waiver
(if such waiver is permitted and effective under applicable Law (as defined in Section 3.5(a))
of the latest to be satisfied or waived of the conditions set forth in ARTICLE VI (excluding
conditions that, by their terms, are to be satisfied on the Closing Date), unless another time or
date is agreed to in writing by the parties. The Closing shall be held at the offices of Xxxxxx
Xxxxxx & Xxxxxxx llp, 00 Xxxx Xxxxxx, xx Xxx Xxxx, XX, unless another place is agreed to
in writing by the parties.
1.3 Effects of the Amalgamation. As of the Effective Time, subject to the terms and
conditions of this Agreement and the Amalgamation Agreement, IPC shall be amalgamated with
Amalgamation Sub and the amalgamated company (the “Amalgamated Company”) shall continue
after the Amalgamation. The parties acknowledge and agree that for purposes of Bermuda Law
(a) the Amalgamation shall be effected so as to constitute an “amalgamation” and
(b) the Amalgamated Company shall be deemed to be an “amalgamated company” in accordance
with section 104 of the Companies Act. Under Section 109 of the Companies Act, from and after the
Effective Time: (i) the Amalgamation of IPC and Amalgamation Sub and their continuance as
one company shall become effective; (ii) the property of each of IPC and Amalgamation Sub
shall become the property of Amalgamated Company; (iii) Amalgamated Company shall continue
to be liable for the obligations and liabilities of each of IPC and Amalgamation Sub; (iv)
any existing cause of action, claim or liability to prosecution shall be unaffected; (v) a
civil, criminal or administrative action or proceeding pending by or against IPC or Amalgamation
Sub may be continued to be prosecuted by or against Amalgamated Company; and (vi) a
conviction against, or ruling, order or judgment in favor of or against, IPC or Amalgamation Sub
may be enforced by or against Amalgamated Company.
1.4 Amalgamated Company Bye-laws. The bye-laws of the Amalgamated Company shall be
the bye-laws of the Amalgamation Sub.
1.5 [Reserved].
1.6 Directors and Officers of the Amalgamated Company.
(a) The parties hereto shall take all actions necessary so that the board of directors of
Amalgamation Sub at the Effective Time shall, from and after the Effective Time, be the directors
of the Amalgamated Company until the earlier of their resignation or removal or until their
respective successors are duly elected or appointed.
(b) The parties hereto shall take all actions necessary so that the officers of Amalgamation
Sub at the Effective Time shall, from and after the Effective Time, be the officers of the
Amalgamated Company until the earlier of their resignation or removal or until their respective
successors are duly elected or appointed.
1.7 Amalgamated Company Name. IPC and Validus shall take all actions reasonably
necessary so that immediately after the Effective Time the name of the Amalgamated Company shall be
Validus Ltd.
ARTICLE II
CONVERSION OF IPC SECURITIES; EXCHANGE OF CERTIFICATES
2.1 Effect on Share Capital. Subject to the terms and conditions of this Agreement,
at the Effective Time, by virtue of the Amalgamation and without any action on the part of the
holder of any common shares in IPC, each having a par value of $0.01 (each, an “IPC Common
Share”), as evidenced by way of entry in the register of shareholders of IPC (the “IPC
Share Register”) or by share
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certificates registered in the name of a shareholder and representing outstanding IPC Common
Shares (each, a “IPC Certificate”):
(a) Conversion of IPC Common Shares. Each IPC Common Share, issued and
outstanding immediately prior to the Effective Time (other than Dissenting Shares) shall be
cancelled and converted into the right to receive shares in the share capital of Validus,
each having a par value of $0.175 (each, a “Validus Common Share”) equal to 1.2037
(the “Exchange Ratio”) (the Exchange Ratio, together with any cash paid in lieu of
fractional shares in accordance with Section 2.2(e), the “Amalgamation
Consideration”). Upon such conversion, each IPC Common Share shall be cancelled and
each holder of shares registered in the IPC Share Register or holding a valid IPC
Certificate immediately prior to the Effective Time shall thereafter cease to have any
rights with respect to such shares except the right to receive the Amalgamation
Consideration. The Amalgamation Consideration shall be appropriately adjusted to reflect
fully the effect of any stock split, reverse stock split, stock dividend (including any
dividend or distribution of securities convertible into Validus Common Shares or IPC Common
Shares), reorganization, recapitalization, reclassification or other like change with
respect to Validus Common Shares or IPC Common Shares having a record date on or after the
date hereof and prior to the Effective Time.
(b) Cancellation of Validus-Owned Securities. Notwithstanding anything in this
Agreement to the contrary, all IPC Common Shares that are owned by Validus or by any
subsidiary of Validus immediately prior to the Effective Time shall, by virtue of the
Amalgamation, and without any action on the part of the holder thereof, automatically be
cancelled and retired without any conversion thereof and shall cease to exist, and no
payment shall be made in respect thereof.
(c) Shares of Dissenting Shareholders. Notwithstanding anything in this
Agreement to the contrary, any issued and outstanding IPC Common Shares held by a person who
did not vote in favor of the Amalgamation and who complies with all the provisions of the
Companies Act concerning the right of holders of IPC Common Shares to require appraisal of
their IPC Common Shares pursuant to Bermuda Law (such shareholder, a “Dissenting
Shareholder”, and such shares, “Dissenting Shares”) shall, at the Effective
time, be cancelled and converted into the right to receive the Amalgamation Consideration as
described in Section 2.1(a), and the right to receive the excess thereof, if any, as
appraised by the Supreme Court of Bermuda under Section 106 of the Companies Act. In the
event that a Dissenting Shareholder fails to perfect, effectively withdraws or otherwise
waives any right to appraisal, its IPC Common Shares shall be cancelled and converted as of
the Effective Time into the right to receive the Amalgamation Consideration for each such
Dissenting Share. IPC shall give Validus (i) prompt notice of (A) any
written demands for appraisal of Dissenting Shares or withdrawals of such demands received
by IPC and (B) to the extent that IPC has actual knowledge, any applications to the
Supreme Court of Bermuda for appraisal of the fair value of the Dissenting Shares, and
(ii) the opportunity to participate with IPC in all negotiations and proceedings
with respect to any demands for appraisal under the Companies Act. Neither IPC nor Validus
shall, without the prior written consent of the other party (not to be unreasonably withheld
or delayed), voluntarily make any payment with respect to, or settle, offer to settle or
otherwise negotiate, any such demands.
2.2 Exchange Procedures.
(a) Exchange Agent. Prior to the Effective Time, Validus shall designate an exchange
agent reasonably acceptable to IPC (the “Exchange Agent”) for the purpose of exchanging IPC
Common Shares outstanding immediately prior to the Effective Time. Prior to or at the Effective
Time, Validus shall deposit, or shall cause to be deposited, with the Exchange Agent in accordance
with this
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ARTICLE II, certificates, or at Validus’s option, shares in book entry form representing the
Validus Common Shares to be exchanged in the Amalgamation, cash in an amount sufficient to pay any
cash payable in lieu of fractional shares pursuant to Section 2.2(e) and any dividends or
distributions to which the shareholders of IPC may be entitled pursuant to Section 2.2(c). Such
Amalgamation Consideration and cash so deposited are hereinafter referred to as the “Exchange
Fund.” No interest shall be paid or accrued for the benefit of holders of the IPC Certificates
on cash amounts payable upon the surrender of such certificates pursuant to this Section 2.2.
(b) Exchange Procedures. As promptly as practicable following the Effective Time,
Validus or the Amalgamated Company shall cause the Exchange Agent to mail, to each shareholder of
IPC, (i) a letter of transmittal (which shall be in such form and have such other
provisions as the parties may reasonably specify) and (ii) where applicable, instructions
for use in effecting the surrender of IPC Certificates, to the extent available and in issue, in
exchange for the Amalgamation Consideration. After the Effective Time, upon surrender of title to
the IPC Common Shares previously held by a shareholder of IPC in accordance with this Section 2.2,
together with such letter of transmittal duly executed if such shareholder holds IPC Certificates,
and such other documents as the Exchange Agent may reasonably require, a holder of IPC Common
Shares shall be entitled to receive in exchange therefor a certificate or book-entry representing
that number of whole Validus Common Shares and any cash in lieu of fractional shares that such
shareholder has the right to receive pursuant to this ARTICLE II, and any IPC Certificate
surrendered in respect thereof shall forthwith be marked as cancelled. In the event of a transfer
of ownership of IPC Common Shares that is not registered in the transfer records of IPC, a
certificate or book-entry representing the proper number of Validus Common Shares may be issued to
a transferee if the IPC Certificate representing such IPC Common Shares (if any) is presented to
the Exchange Agent, accompanied by all documents required to evidence and effect such transfer and
by evidence that any applicable stock transfer taxes have been paid.
(c) Distributions with Respect to Unexchanged Shares. No dividends or other
distributions declared or made with respect to Validus Common Shares with a record date on or after
the Effective Time shall be paid to any shareholder of IPC holding any unsurrendered IPC
Certificate with respect to the Validus Common Shares represented thereby, nor shall the cash
payment in lieu of fractional shares be paid to any such shareholder pursuant to Section 2.2(e),
until such shareholder shall surrender such IPC Certificate in accordance with the procedures set
forth in this ARTICLE II. Following the surrender of any such IPC Certificate in accordance with
the procedures set forth in this ARTICLE II, such shareholder shall be entitled to receive, in
addition to the consideration set forth in Section 2.1(a), without interest, (i) at the
time of such surrender, the amount of any dividends or other distributions with a record date on or
after the Effective Time theretofore paid (but withheld pursuant to the immediately preceding
sentence) with respect to such whole Validus Common Shares which a shareholder of IPC holding such
IPC Certificate is entitled to receive hereunder, and (ii) at the appropriate payment date,
the amount of dividends or other distributions with a record date after the Effective Time but
prior to surrender and a payment date subsequent to surrender payable with respect to such whole
Validus Common Shares which such shareholder is entitled to receive hereunder.
(d) No Further Rights in IPC Common Shares. All Amalgamation Consideration paid or
issued upon the surrender of title to IPC Common Shares in accordance with the terms of this
ARTICLE II (including any cash paid pursuant to this ARTICLE II) shall be deemed to have been
issued (and paid) in full satisfaction of all rights pertaining to the shareholders of IPC, in
their capacity as shareholders of IPC prior to the Effective Time. There shall be no further
registration of transfers on the stock transfer books of the Amalgamated Company of the IPC Common
Shares which were outstanding immediately prior to the Effective Time. If, after the Effective
Time, IPC Certificates are presented to Validus or to the Amalgamated Company or to the Exchange
Agent for any reason, they shall be marked as cancelled and exchanged in accordance with this
ARTICLE II, except as otherwise required by Law.
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(e) No Fractional Shares. Notwithstanding anything in this Agreement to the contrary,
no fraction of a Validus Common Share will be issued in connection with the Amalgamation, and in
lieu thereof any shareholder of IPC who would otherwise have been entitled to a fraction of a
Validus Common Share, shall be paid upon surrender of title to IPC Common Shares for exchange (and
after taking into account and aggregating IPC Common Shares represented by all IPC Certificates
surrendered by such holder, or as set out in the IPC Share Register, as applicable) cash in an
amount (without interest) equal to the product obtained by multiplying (i) the fractional
share interest to which such shareholder (after taking into account and aggregating all IPC Common
Shares represented by all IPC Certificates surrendered by such shareholder or as set out in the IPC
Share Register, as applicable) would otherwise be entitled by (ii) the Average Validus
Share Price (as defined in Section 8.13(a)).
(f) Lost, Stolen or Destroyed Certificates. In the event any IPC Certificates shall
have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange for such lost,
stolen or destroyed certificates, upon the making of an affidavit of that fact by the holder
thereof, the Amalgamation Consideration and any dividends or other distributions as may be required
pursuant to this ARTICLE II in respect of the IPC Common Shares represented by such lost, stolen or
destroyed certificates; provided that Validus may, in its reasonable discretion and as a
condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed
certificates to deliver a bond in such sum as it may reasonably direct as indemnity against any
claim that may be made against Validus or the Exchange Agent with respect to the certificates
alleged to have been lost, stolen or destroyed.
(g) Termination of Exchange Fund. Unless a longer period is prescribed by applicable
Law or Validus’s agreement with the Exchange Agent, any portion of the Exchange Fund that remains
undistributed to the shareholders of IPC for six months after the Effective Time shall be delivered
to Validus, upon demand, and any shareholders of IPC who have not theretofore complied with this
ARTICLE II shall thereafter look only to Validus for payment of their claim for the Amalgamation
Consideration and any dividends or distributions with respect to Validus Common Shares.
(h) No Liability. To the extent allowed under applicable Law, any Amalgamation
Consideration and any dividends or distributions with respect to Validus Common Shares comprising
the Amalgamation Consideration that remain undistributed to the shareholders of IPC shall be
delivered to and become the property of Validus on the day immediately prior to the day that such
property is required to be delivered to any public official pursuant to any applicable abandoned
property, escheat or similar Law. None of Validus, Amalgamation Sub, Amalgamated Company or the
Exchange Agent shall be liable to any shareholder of IPC for any such property delivered to Validus
or to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(i) Withholding. The Exchange Agent, Validus and the Amalgamated Company shall be
entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement
to any shareholder of IPC such amounts as it is required to deduct and withhold with respect to the
making of such payment under any provision of applicable tax Law. To the extent that amounts are
so withheld by the Exchange Agent, Validus or the Amalgamated Company, such withheld amounts shall
be treated for all purposes of this Agreement as having been paid to the holder of the IPC Common
Shares in respect of which such deduction and withholding was made. The parties agree to cooperate
with each other for purposes of determining whether any taxes are required to be withheld with
respect to the Amalgamation.
2.3 IPC Equity Awards.
(a) IPC Stock Options. Subject to the terms and conditions of this Agreement, at the
Effective Time, by virtue of the transactions contemplated by this Agreement and without any action
on
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the part of any holder of any outstanding option to purchase IPC Common Shares under any IPC
Share Plan (as defined in Section 3.2(a)), whether vested or unvested, exercisable or unexercisable
(each, an “IPC Share Option”), each IPC Share Option that is outstanding and unexercised
immediately prior thereto shall cease to represent a right to acquire IPC Common Shares and shall
be converted into an option (a “New Option”) to purchase, on the same terms and conditions
as were applicable under the terms of the IPC Share Plan under which the IPC Share Option was
granted and the applicable award agreement thereunder (taking into account any accelerated vesting
thereunder), such number of Validus Common Shares and at an exercise price per share determined as
follows:
(1) Number of Shares. The number of IPC Common Shares subject to a New Option
shall be equal to the product of (A) the number of IPC Common Shares subject to such
IPC Share Option immediately prior to the Effective Time and (B) the Exchange Ratio,
the product being rounded, if necessary, to the nearest whole share; and
(2) Exercise Price. The exercise price per Validus Common Share purchasable
upon exercise of a New Option shall be equal to (A) the per share exercise price of
the IPC Share Option divided by (B) the Exchange Ratio, the quotient being rounded,
if necessary, to the nearest cent.
The foregoing adjustments shall (i) in the case of any IPC Share Option that is
intended to be an “incentive stock option” under Section 422 of the Code, be determined in a manner
consistent with the requirements of Section 424(a) of the Code and (ii) in the case of any
IPC Share Option that is not intended to be an “incentive stock option,” be determined in a manner
consistent with the requirements of Section 409A of the Code.
(b) IPC Other Awards. Subject to the terms and conditions of this Agreement:
(1) at the Effective Time, by virtue of the transactions contemplated by this Agreement
and without any action on the part of any holder of any outstanding right of any kind,
contingent or accrued, to acquire or receive IPC Common Shares or benefits measured by the
value of IPC Common Shares, each outstanding award of any kind consisting of IPC Common
Shares or benefits measured by the value of IPC Common Shares (including performance share
units where the performance period has ended prior to the Effective Date), in each case that
may be held, awarded, outstanding, payable or reserved for issuance under any IPC Share Plan
and any other IPC Benefit Plan (as defined in Section 8.13(a)), but excluding IPC Share
Options and IPC performance share units for which the performance period expires on or after
the Effective Time (the “IPC Non-Performance Awards”), shall be deemed to be
converted into the right to acquire or receive benefits measured by the value of (as the
case may be) the number of Validus Common Shares equal to the product (rounded, if
necessary, to the nearest whole number) of (x) the number of IPC Common Shares subject to
such IPC Non-Performance Award immediately prior to the Effective Time and (y) the Exchange
Ratio. Except as specifically provided above, following the Effective Time, each such right
shall otherwise be subject to the same terms and conditions as were applicable to the rights
under the relevant IPC Share Plan or other IPC Benefit Plan and the applicable award
agreement thereunder (taking into account any accelerated vesting thereunder) immediately
prior to the Effective Time; and
(2) immediately prior to the Effective Time, by virtue of the transactions contemplated
by this Agreement and without any action on the part of any holder of any IPC performance
share unit for which the performance period expires on or after the Effective Time (each a
“Non-Vested PSU”), the number of IPC Common Shares to which each Non-Vested PSU
relates shall be calculated based on the original grant date target value of the Non-Vested
PSU, as
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pro-rated on a daily basis to each year of the original vesting period (the “IPC
Performance Awards”) and, at the Effective Time, each IPC Performance Award shall be
deemed to be converted into the right to acquire or receive benefits measured by the value
of (as the case may be) the number of Validus Common Shares equal to the product (rounded,
if necessary, to the nearest whole number) of (x) the number of IPC Common Shares to which
each IPC Performance Award relates immediately prior to the Effective Time and (y) the
Exchange Ratio. Except as specifically provided above, following the Effective Time, each
such right shall otherwise be subject to the same terms and conditions as were applicable to
the rights under the relevant IPC Share Plan or other IPC Benefit Plan and the applicable
award agreement thereunder (taking into account any accelerated vesting thereunder)
immediately prior to the Effective Time. IPC Performance Awards and IPC Non-Performance
Awards shall be, collectively, referred to as the “IPC Other Awards.”
(c) Corporate Actions. Before the Effective Time, IPC, or its board of directors or
an appropriate committee thereof, shall take all action necessary on its part to give effect to the
provisions of Sections 2.3(a) and (b) and shall take such other actions reasonably requested by
Validus to give effect to the foregoing (including obtaining the consent of the holder of or
amending the terms of any IPC Share Options, IPC Other Awards or any IPC Share Plan). IPC shall
take all actions necessary to ensure that, from and after the Effective Time, none of IPC, Validus,
the Amalgamated Company or any of their respective subsidiaries will be required to deliver IPC
Common Shares or other capital stock of IPC to any person pursuant to or in settlement of IPC Share
Options or IPC Other Awards at or after the Effective Time.
(d) Registration. If registration of any interests in the IPC Share Plans or any
other IPC Benefit Plan or the Validus Common Shares issuable thereunder is required under the
Securities Act, Validus shall file with the SEC within five business days after the Effective Time
a registration statement on Form S-8 (or any successor or other appropriate forms) with respect to
such interests of Validus Common Shares, and shall use its commercially reasonable efforts to
maintain the effectiveness of such registration statement (and maintain the current status of the
prospectus or the prospectuses contained therein) for so long as the relevant IPC Share Plans or
other IPC Benefit Plans, as applicable, remain in effect and such registration of interests therein
or the Validus Common Shares issuable thereunder continues to be required.
(e) Notice to Equity Award Holders. As soon as practicable after the Effective Time,
Validus shall deliver to the holders of IPC Share Options and IPC Other Awards appropriate notices
setting forth such holders’ rights pursuant to any IPC Share Plan or IPC Benefit Plan and
agreements evidencing such IPC Share Options and IPC Other Awards and stating that the IPC Share
Plans or IPC Benefit Plans and such IPC Share Options and IPC Other Awards and agreements have been
assumed by Validus and shall continue in effect on the same terms and conditions (subject to the
adjustments required by this Section 2.3 after giving effect to the Amalgamation and the terms of
the IPC Share Plans or IPC Benefit Plans).
ARTICLE III
Except as (i) set forth in the correspondingly identified subsection of the disclosure
letter delivered by Validus to IPC simultaneously with the execution of this Agreement by Validus
(the “Validus Disclosure Letter”) or the disclosure letter delivered by IPC to Validus
simultaneously with the execution of this Agreement by IPC, which shall be identical in all
respects to the Disclosure Letter delivered by IPC to Max Capital Group Ltd. at the time the IM
Agreement was signed (the “IPC Disclosure Letter” and each of the Validus Disclosure Letter
and the IPC Disclosure Letter, a “Disclosure Letter”), as the
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case may be, or (ii) disclosed in the relevant party’s SEC Documents filed with the
SEC on or after January 1, 2008 and prior to the date of this Agreement (excluding any disclosures
set forth in any risk factor section or forward-looking statements contained therein), IPC hereby
represents and warrants to Validus, and Validus (and Amalgamation Sub with respect to Sections
3.1(a), 3.1(c), 3.3 and 3.9(c)) hereby represents and warrants to IPC, to the extent applicable, in
each case with respect to itself and its subsidiaries, as follows:
(a) Each of it and its subsidiaries is a company or other legal entity duly organized and
validly existing and in good standing (with respect to jurisdictions which recognize such concept)
under the Laws of its jurisdiction of incorporation or organization, has all requisite power and
authority to own, lease and operate its properties and to carry on its business as now being
conducted, and is duly qualified to do business in each jurisdiction in which the nature of its
business or the ownership or leasing of its properties makes such qualification necessary, except
where the failure to be so qualified has not had and would not be reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect.
(b) The copies of its memorandum of association and bye-laws incorporated by reference in its
Form 10-K for the year ended December 31, 2008, are true, complete and correct copies of such
documents, are in full force and effect and have not been amended or otherwise modified, except as
they may be or have been amended or otherwise modified pursuant to the IPC Bye-Law Amendment (as
defined in Section 3.9(a)).
(c) Validus and Amalgamation Sub represent to IPC that: (i) true and complete copies
of the memorandum of association and bye-laws of Amalgamation Sub, each as in effect as of the date
of this Agreement, will be made available to IPC, upon request, within one (1) business day of the
termination of the IM Agreement, (ii) Amalgamation Sub was formed by Validus solely for the
purpose of effecting the Amalgamation and the other transactions contemplated by this Agreement,
and (iii) Amalgamation Sub has not conducted any business prior to the date hereof and has
no, and immediately prior to the Effective Time will have no, assets, liabilities or obligations of
any nature other than those incident to its formation and pursuant to this Agreement.
3.2 Capital Structure.
(a) Its authorized share capital and outstanding common shares as of the date set forth in the
corresponding section of its Disclosure Letter, including any shares reserved for issuance upon the
exercise or payment of outstanding warrants and outstanding stock options or other equity related
awards (such stock option and other equity-based award plans, agreements and programs,
collectively, in the case of Validus, the “Validus Share Plans” and, in the case of IPC,
the “IPC Share Plans”), is described in the corresponding section of its Disclosure Letter.
In the case of Validus, none of its Common Shares are held by it or by its subsidiaries. In the
case of IPC, its Common Shares that are held by it and its subsidiaries are described in the
corresponding section of its Disclosure Letter. All of its outstanding Common Shares have been
duly authorized and validly issued and are fully paid and non-assessable and not subject to
preemptive rights. Section 3.2(a) of its Disclosure Letter sets forth a list of all warrants,
options, restricted stock, restricted stock units or other equity awards outstanding as of the date
hereof.
(b) From January 1, 2009 to the date hereof, it has not issued or permitted to be issued any
common shares, share appreciation rights or securities exercisable or exchangeable for or
convertible into shares in its or any of its subsidiaries’ share capital.
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(c) It or one of its wholly-owned subsidiaries owns all of the issued and outstanding shares
in the share capital of its subsidiaries, beneficially and of record, and all such shares are fully
paid and nonassessable, are not subject to preemptive rights and are free and clear of any claim,
lien or encumbrance.
(d) No bonds, debentures, notes or other indebtedness having the right to vote (or which are
convertible into or exercisable for securities having the right to vote) on any matters on which
shareholders may vote (“Voting Debt”) of it or any of its subsidiaries are issued or
outstanding.
(e) Except for options or other equity-based awards issued or to be issued under the Validus
Share Plans (in the case of Validus) or the IPC Share Plans (in the case of IPC), there are no
options, warrants, calls, convertible or exchangeable securities, rights, commitments or agreements
of any character to which it or any of its subsidiaries is a party or by which it or any such
subsidiary is bound (i) obligating it or any of its subsidiaries to issue, deliver or sell,
or cause to be issued, delivered or sold, additional shares of the share capital or any Voting Debt
or other equity rights of it or any of its subsidiaries, (ii) obligating it or any of its
subsidiaries to grant, extend or enter into any such option, warrant, call, convertible or
exchangeable security, right, commitment or agreement or (iii) that provide the economic
equivalent of an equity ownership interest in it or any of its subsidiaries.
(f) None of it or any of its subsidiaries is a party to any member or shareholder agreement,
voting trust agreement or registration rights agreement relating to any equity securities of it or
any of its subsidiaries or any other agreement relating to disposition, voting or dividends with
respect to any equity securities of it or any of its subsidiaries. There are no outstanding
contractual obligations of it or any of its subsidiaries to repurchase, redeem or otherwise acquire
any shares in the share capital of it or any of its subsidiaries.
(g) Since January 1, 2009 through the date of this Agreement, it has not declared, set aside,
made or paid to its shareholders dividends or other distributions on the outstanding shares in its
share capital.
(h) It has not waived any voting cut-back, transfer restrictions or similar provisions of its
or its subsidiaries’ bye-laws with respect to any of its or their shareholders, except for such
waivers set forth in its bye-laws.
(a) It has all requisite corporate power and authority to enter into this Agreement and,
subject to obtaining the Required Validus Vote (as defined in Section 3.10(a)) (in the case of
Validus) or the Required IPC Vote (as defined in Section 3.10(b)) (in the case of IPC), to
consummate the transactions contemplated hereby. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby have been duly authorized by all necessary
corporate action on its part and no other corporate proceedings on its part are necessary to
authorize this Agreement and consummate the transactions contemplated hereby, subject to the
Required Validus Vote (in the case of Validus) or the Required IPC Vote (in the case of IPC). This
Agreement has been duly executed and delivered by it and (assuming the due authorization, execution
and delivery by the other parties hereto) constitutes a valid and binding obligation of it,
enforceable against it in accordance with its terms, except to the extent enforcement is limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general
applicability relating to or affecting creditors’ rights and by general equitable principles.
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(b) Neither the execution and delivery of this Agreement by it nor the consummation by it of
the transactions contemplated hereby, nor compliance by it with any of the terms or provisions
hereof, will (i) violate any provision of the memorandum of association or bye-laws of it
(as they may be or have been modified, in the case of IPC, pursuant to the IPC Bye-Law Amendment)
or the memorandum of association, bye-laws or equivalent organizational documents of any of its
subsidiaries or (ii) assuming that the consents, approvals, orders, authorizations,
registrations, declarations and filings referred to in Section 3.3(c) are duly obtained or made,
(A) violate any Law applicable to it or any of its subsidiaries or any of their respective
properties or assets or (B) violate, conflict with, result in a breach of any provision of
or the loss of any benefit under, constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, result in the cancellation, suspension,
non-renewal or termination of or a right of termination or cancellation under, accelerate the
performance required by, or result in the creation of any lien, pledge, security interest, charge
or other encumbrance upon (1) any Permit (as defined in Section 3.5(a)) or (2) any
of the respective properties or assets of it or any of its subsidiaries under, any of the terms,
conditions or provisions of any loan or credit agreement, note, mortgage, indenture, lease, Validus
Benefit Plan (as defined in Section 8.13(a)) (in the case of Validus) or IPC Benefit Plan (as
defined in Section 8.13(a)) (in the case of IPC) or other agreement, obligation or instrument to
which it or any of its subsidiaries is a party, or by which they or any of their respective
properties or assets may be bound or affected, except (with respect to clause (ii)) for such
violations, conflicts or breaches that have not had and would not be reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect.
(c) No consent, approval, order or authorization of, or registration, declaration or filing
with, any court, administrative agency or commission or other governmental authority, body, agency,
official or instrumentality, domestic or foreign, or self-regulatory organization or other similar
non-governmental regulatory body (each, a “Governmental Entity”), is required to be made or
obtained by it or any of its subsidiaries in connection with the execution and delivery of this
Agreement by it or the consummation by it of the transactions contemplated hereby, except for
(i) the filing of the Amalgamation Application and related attachments with the Registrar,
(ii) the written notification to the Bermuda Monetary Authority regarding Validus’s
acquisition of the IPC Common Shares, (iii) such other applications, filings,
authorizations, orders and approvals as may be required under applicable Laws (including all
applicable Insurance Laws) of any jurisdiction and any approvals thereof, which are set forth in
Section 3.3(c) of its Disclosure Letter, (iv) the filing with the SEC of such
registrations, prospectuses, reports and other materials as may be required in connection with this
Agreement and the transactions contemplated hereby, including the Joint Proxy Statement/Prospectus
(as defined in Section 5.1(a)), and the obtaining from the SEC of such orders as may be required in
connection therewith, (v) compliance with any applicable requirements of NASDAQ or the
NYSE, as applicable, (vi) in the case of Validus, such filings and approvals as are
required to be made or obtained under the securities or “Blue Sky” Laws of various jurisdictions in
connection with the issuance of the Validus Common Shares pursuant to this Agreement, and
(vii) for any other such consent, approval, order or authorization of, or registration,
declaration or filings, the failure of which to obtain or make would not be reasonably expected to
have, individually or in the aggregate, a Material Adverse Effect.
(a) It and its subsidiaries have timely filed all required reports, schedules, registration
statements and other documents with the SEC since January 1, 2008 (the “SEC Documents”).
As of their respective dates of filing with the SEC (or, if amended or superseded by a filing prior
to the date hereof, as of the date of such filing), the SEC Documents complied in all material
respects with the requirements of the Securities Act of 1933, as amended (the “Securities
Act”), or the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as the
case may be, and the rules and regulations of the SEC thereunder applicable to such SEC Documents,
and none of its or its subsidiaries’ SEC Documents when
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filed contained any untrue statement of a material fact or omitted 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. The financial statements of it and its
subsidiaries included in its SEC Documents complied, as of their respective dates of filing with
the SEC (or, if amended or superseded by a filing prior to the date hereof, as of the date of such
filing), with all applicable accounting requirements and with the published rules and regulations
of the SEC with respect thereto, have been prepared in accordance with GAAP applied on a consistent
basis during the periods involved (except as may be disclosed therein) and fairly present in all
material respects the consolidated financial position of it and its consolidated subsidiaries and
the consolidated results of operations, changes in shareholders’ equity and cash flows of such
companies as of the dates and for the periods shown. As of the date hereof, there are no
outstanding written comments from the SEC with respect to its SEC Documents.
(b) Except for (i) those liabilities that are reflected or reserved for in its
consolidated financial statements included in its Annual Report on Form 10-K for the year ended
December 31, 2008, as filed with the SEC prior to the date of this Agreement, (ii)
liabilities and obligations incurred pursuant to this Agreement, (iii) liabilities incurred since
December 31, 2008 (1) in the ordinary course of business (including claims and any related
litigation or arbitration arising in the ordinary course of business under Policies (as defined in
Section 3.12(g)) or (2) pursuant to any Reinsurance Agreements (as defined in Section
3.12(e)) issued or assumed, as the case may be, by one of its Insurance Entities (as defined in
Section 3.12(a)) for which adequate claims reserves have been established), and (iv) liabilities
which have not had and would not be reasonably expected to have, individually or in the aggregate,
a Material Adverse Effect, it and its subsidiaries do not have, and since December 31, 2008, it and
its subsidiaries have not incurred, any liabilities or obligations of any nature whatsoever
(whether accrued, absolute, contingent or otherwise and whether or not required to be reflected in
its financial statements in accordance with GAAP).
3.5 Compliance with Applicable Laws and Reporting Requirements. Except as has not
had and would not be reasonably expected to have, individually or in the aggregate, a Material
Adverse Effect:
(a) It and its subsidiaries hold in full force and effect all permits, certifications,
registrations, permissions, consents, franchises, concessions, licenses, variances,
exemptions, orders, approvals and authorizations of all Governmental Entities necessary for
the ownership and conduct of the business of it and its subsidiaries (including any
insurance licenses or permissions from insurance regulatory authorities) in each of the
jurisdictions in which it or its subsidiaries currently conduct or operate its business (the
“Permits”), and it and its subsidiaries are in compliance with the terms and
requirements of its Permits and any applicable law, statute, ordinance, common law,
arbitration award, or any rule, regulation, judgment, order, writ, injunction, decree,
agency requirement or published interpretation of any Governmental Entity, including all
relevant bye-laws and regulations of the Council and Society of Lloyd’s incorporated under
the Lloyd’s Act of 1871 to 1982 of England and Wales (“Lloyd’s”) in each of the
jurisdictions in which it or its subsidiaries currently conduct business or operate
(collectively “Laws”). The businesses of it and its subsidiaries have not been, and
are not being, conducted in violation of any applicable Laws (including the USA PATRIOT Act
of 2001, as amended, the Foreign Corrupt Practices Act, 15 U.S.C. § 78dd 1 et seq., as
amended (or any other similar applicable foreign, federal, or state legal requirement),
anti-money laundering laws, anti-terrorism laws, all applicable requirements relating to the
sale, issuance, marketing, advertising and administration of insurance products (including
licensing and appointments) and all Laws regulating the business and products of insurance
and all applicable orders and directives of insurance regulatory authorities (the
“Insurance Laws”) and all applicable laws or other legal requirements relating to
the retention of e-mail and other information). It and its subsidiaries have not received,
at any time since January 1, 2007,
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any written notice or communication from any Governmental Entity regarding any actual,
alleged, or potential violation of, or a failure to comply with, any Laws or the terms and
requirements of any Permit or any actual or potential revocation, withdrawal, suspension,
cancellation, modification, or termination of any Permit. All applications required to have
been filed for the renewal of each Permit or other filings required to be made with respect
to each Permit held by it or its subsidiaries have been duly filed on a timely basis with
the appropriate Governmental Entity.
(b) It has established and maintains disclosure controls and procedures (as defined in
Rule 13a-15 under the Exchange Act). Such disclosure controls and procedures are designed
to ensure that material information relating to it, including its consolidated subsidiaries,
is made known to its principal executive officer and its principal financial officer by
others within those entities, particularly during the periods in which the periodic reports
required under the Exchange Act are being prepared. Such disclosure controls and procedures
are effective in timely alerting its principal executive officer and principal financial
officer to material information required to be included in its periodic reports under the
Exchange Act and ensure that the information required to be disclosed in its SEC Documents
is recorded, processed, summarized and reported within the time periods specified by the
SEC’s rules and forms. It and its subsidiaries maintain a system of internal controls over
financial reporting sufficient to provide reasonable assurances regarding the reliability of
financial reporting and the preparation of financial statements in accordance with GAAP.
The records, systems, controls, data and information of it and its subsidiaries are
recorded, stored, maintained and operated under means (including any electronic, mechanical
or photographic process, whether computerized or not) that are under the exclusive ownership
and direct control of it or its subsidiaries or accountants (including all means of access
thereto and therefrom) and are held or maintained in such places as may be required under
all applicable Laws (including Insurance Laws). It has disclosed, based on its most recent
evaluation of internal controls prior to the date hereof, to its auditors and audit
committee (i) any significant deficiencies and material weaknesses in the design or
operation of internal controls which are reasonably likely to adversely affect its ability
to record, process, summarize and report financial information and (ii) any fraud that
involves management or other employees who have a significant role in internal controls.
(c) There are no outstanding loans or other extensions of credit made by it or any of
its subsidiaries to any of its executive officers (as defined in Rule 3b-7 under the
Exchange Act) or directors.
(d) Since January 1, 2007, it has complied with the applicable listing and corporate
governance rules and regulations of NASDAQ (in the case of IPC) or the NYSE (in the case of
Validus).
(e) Neither it nor any of its subsidiaries is a party to, or has any commitment to
become a party to, any joint venture, off-balance sheet partnership or any similar contract
(including any contract relating to any transaction or relationship between or among it and
any of its subsidiaries, on the one hand, and any unconsolidated affiliate, including any
structured finance, special purpose or limited purpose entity, on the other hand, or any
“off-balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K of the SEC)),
where the result, purpose or intended effect of such contract is to avoid disclosure of any
material transaction involving, or material liabilities of, it or any of its subsidiaries in
the SEC Documents.
3.6 Legal and Arbitration Proceedings and Investigations. Except for litigation or
arbitration arising in the ordinary course of business from claims under Policies or Reinsurance
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Agreements issued or assumed, as the case may be, by one of its Insurance Entities for which
adequate claims reserves have been established, there are no claims, suits, actions, proceedings,
arbitrations or other proceedings whether judicial, arbitral or administrative, civil or criminal
(“Legal Proceedings”) pending or, to its knowledge, threatened, against it or any of its
subsidiaries, any present or former officer, director or employee thereof in his or her capacity
as such or any person for whom it or its subsidiaries may be liable or any of their respective
properties, that, if determined or resolved adversely against it, would be reasonably expected to
have, individually or in the aggregate, a Material Adverse Effect, nor are there any writs,
judgments, decrees, injunctions, rules or orders of any Governmental Entity or arbitrator binding
upon it or any of its subsidiaries or any of their respective assets or properties that would be
reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. To its
knowledge, since January 1, 2007, there have been no formal or informal SEC inquiries,
investigations or subpoenas, other Governmental Entity inquiries or investigations or internal
investigations or material whistle-blower complaints pending or otherwise threatened involving it
or its subsidiaries or any current or former officer or director thereof in his or her capacity as
such, other than, in each case, those that if determined or resolved adversely against it would
not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
3.7 Taxes.
(a) All material Tax Returns (as defined in Section 8.13(a)) required by applicable Law to be
filed with any Taxing Authority (as defined in Section 8.13(a)) by, or on behalf of, it or any of
its subsidiaries have been filed when due (taking into account extensions of time to file) in
accordance with all applicable Laws, and all such Tax Returns are true, correct and complete in all
material respects. All such Tax Returns have been examined by the appropriate Taxing Authority or
the period for assessment of the Taxes (as defined in Section 8.13(a)) in respect of which such Tax
Returns were required to be filed has expired.
(b) There are no liens for any Taxes upon the assets of it or any of its subsidiaries, other
than (i) statutory liens for Taxes not yet due and payable or (ii) liens which are
being contested in good faith by appropriate proceedings, for which adequate reserves have been
established on its financial statements in accordance with GAAP and Applicable SAP.
(c) It and each of its subsidiaries have paid or have withheld and remitted to the appropriate
Taxing Authority all material Taxes due and payable, and have established in accordance with GAAP
and Applicable SAP an adequate accrual for all material Taxes not yet due and payable.
(d) There is no claim, audit, action, suit, proceeding, examination or investigation now
pending or, to its knowledge, threatened against or with respect to it or any of its subsidiaries
in respect of any Tax or Tax Asset (as defined in Section 8.13(a)), and any deficiencies asserted
or assessments made as a result of any claim, audit, suit, proceeding, examination or investigation
have been paid in full.
(e) It and each of its subsidiaries have withheld all material amounts required to have been
withheld by them in connection with amounts paid or owed to (or any benefits or property provided
to) any employee, independent contractor, creditor, shareholder or any other third party; such
withheld amounts were either duly paid to the appropriate Taxing Authority or set aside in accounts
for such purpose. It and each of its subsidiaries have reported such withheld amounts to the
appropriate Taxing Authority and to each such employee, independent contractor, creditor,
shareholder or any other third party, as required under Law.
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(f) Neither it nor any of its subsidiaries is a party to a Tax allocation, sharing, indemnity
or similar agreement (other than indemnities included in ordinary course employment contracts or
leases) that will require any payment by it or any of its subsidiaries of any Tax of another person
after the Closing Date.
(g) Neither it nor any of its subsidiaries has entered into a “reportable transaction” within
the meaning of Treasury Regulations Section 1.6011-4, and neither it nor any of its subsidiaries
has been a “material advisor” to any such transactions within the meaning of Section 6111 of the
Code.
(h) Neither it nor any of its subsidiaries (i) has filed any extension of time within
which to file any Tax Returns that have not been filed, (ii) has entered into any agreement
or other arrangement waiving or extending the statute of limitations or the period of assessment or
collection of any material Taxes, (iii) has granted any power of attorney that is in force
with respect to any matters relating to any material Taxes, (iv) has applied for a ruling
from a Taxing Authority relating to any material Taxes that has not been granted or has proposed to
enter into an agreement with a Taxing Authority that is pending, or (v) has entered into
any “closing agreement” as described in Section 7121 of the Code (or any similar provision of
state, local or foreign Tax Law) or been issued any private letter rulings, technical advance
memoranda or similar agreement or rulings by any Taxing Authority.
(i) None of its subsidiaries is now or has ever been a United States real property holding
corporation within the meaning of Section 897(c)(2) of the Code.
(j) Neither it nor any of its subsidiaries has agreed to, requested, or is required to include
any adjustment under Section 481 of the Code (or any corresponding provision of applicable Law) by
reason of a change in accounting method or otherwise.
(k) Neither it nor any of its subsidiaries has elected to be a pass-through entity for U.S.
federal income tax purposes.
(l) Neither it nor any of its subsidiaries organized outside the United States, has ever been
engaged in a trade or business in the United States within the meaning of Section 864(b) of the
Code or has ever had a permanent establishment in the United States within the meaning of the tax
treaty between the United States and Bermuda.
(m) Neither it nor any of its subsidiaries has ever been a member of an affiliated, combined,
consolidated or unitary Tax group for purposes of filing any Tax Return.
(n) Neither it nor any of its subsidiaries has been a distributing corporation or a controlled
corporation in a transaction intended to be governed by Section 355 of the Code.
(o) It and each of its subsidiaries currently satisfies (assuming the relevant taxable year
ended on the date this representation is being given), and expects to satisfy with respect to the
taxable year in which the Closing Date falls, either or both of the exceptions described in
Sections 953(c)(3)(A) and (B) of the Code so that none of its “United States shareholders” (within
the meaning of Section 953(c) of the Code) will be required to include in income any of its or its
subsidiaries’ “related person insurance income” (within the meaning of Section 953(c)(2) of the
Code) by operation of Sections 951(a) and 953(c)(5) of the Code.
(p) Neither it nor any of its subsidiaries has received any notice or inquiry from any
Governmental Entity outside of Bermuda to the effect that any of it or its subsidiaries that are
domiciled or formed in Bermuda are subject to any Tax other than excise taxes or any Tax assessed
by Bermuda.
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(q) Other than as disclosed with respect to Section 3.7(l), Section 3.7(p) or this Section
3.7(q), it and each of its subsidiaries has never been subject to net basis taxation in any
country, or been tax resident or tax domiciled in any country, other than the country in which it
and each of its subsidiaries, respectively, is organized.
(r) Neither it nor any of its subsidiaries organized outside the United Kingdom has or has
ever had a permanent establishment in the United Kingdom for United Kingdom Tax purposes.
(s) No material transaction or arrangement involving it or any of its subsidiaries has taken
place or is in existence which is such that it has resulted, or is reasonably likely to result, in
the income, profits or gains of it or of any subsidiary being adjusted for Tax purposes in any
jurisdiction in accordance with applicable transfer pricing or thin capitalization laws.
(t) As of the date of this Agreement, neither it nor any of its subsidiaries has taken or
agreed to take any action, or is aware of any agreement, plan or circumstance, that, to its
knowledge, would reasonably be expected to prevent the Amalgamation from constituting a
“reorganization,” within the meaning of Section 368(a) of the Code.
3.8 Absence of Certain Changes or Events. Since January 1, 2009, (i) there has not been
any event, change, circumstance, state of facts or effect, alone or in combination, that has had
or would be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect
and (ii) it has not taken any action or failed to take any action that would have resulted in a
breach in any material respect of Section 4.1 had such section been in effect since January 1,
2009.
3.9 Board Approval.
(a) In the case of IPC, the board of directors of IPC, by resolutions duly adopted by
unanimous vote at a meeting duly called and held, has (i) determined that the Amalgamation
Consideration and the Exchange Ratio constitutes fair value for each IPC Common Share in accordance
with the Companies Act and deemed it fair to, advisable to and in the best interests of IPC to
enter into this Agreement and to consummate, the Amalgamation and the other transactions
contemplated hereby, (ii) adopted this Agreement and the Amalgamation Agreement and
authorized and approved the Amalgamation and the other transactions contemplated by this Agreement
and (iii) recommended that the shareholders of IPC vote in favor of matters constituting the
Required IPC Vote (as defined in Section 3.10(b)) (the “IPC Recommendation”) and (iv)
determined that the amendments to IPC’s bye-laws set forth in Exhibit E (the “IPC
Bye-Law Amendment”) are advisable to and in the best interests of IPC, and directed that such
matters be submitted for consideration by IPC shareholders at the IPC Shareholders Meeting (as
defined in Section 5.1(c)).
(b) In the case of Validus, the board of directors of Validus, by resolutions duly adopted
unanimously, has (i) deemed it fair to, advisable and in the best interests of Validus to
enter into this Agreement and to consummate the Share Issuance and the other transactions
contemplated hereby, (ii) adopted this Agreement and authorized and approved the Share
Issuance, and (iii) recommended that the shareholders of Validus vote in favor of the
matters constituting the Required Validus Vote (the “Validus Recommendation”) and directed
that such matters be submitted for consideration by Validus shareholders at the Validus
Shareholders Meeting (as defined in Section 5.1(b)).
(c) In the case of Validus, the board of directors of Amalgamation Sub, by unanimous written
consent without a meeting, has (i) determined that this Agreement and the Amalgamation are
advisable and in the best interests of Amalgamation Sub and its sole shareholder, (ii)
adopted this Agreement and authorized and approved the Amalgamation and (iii) recommended
that the sole shareholder
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of Amalgamation Sub approve such matters. The sole shareholder of Amalgamation Sub has
approved this Agreement, the Amalgamation and the other transactions contemplated hereby.
3.10 Vote Required.
(a) In the case of Validus, the affirmative vote of a majority of the votes cast at a meeting
of the shareholders of Validus at which a quorum is present in accordance with the bye-laws of
Validus to approve the Share Issuance (the “Required Validus Vote”) is the only vote of the
holders of any class or series of Validus capital stock necessary to consummate the transactions
contemplated hereby.
(b) In the case of IPC, the affirmative vote of a majority of the votes cast at a meeting of
the shareholders of IPC at which a quorum is present in accordance with the bye-laws of IPC, in
each case, to approve the IPC Bye-Law Amendment and, assuming approval of the IPC Bye-Law
Amendment, adopt this Agreement and approve the Amalgamation (provided, however, if
the IPC Bye-Law Amendment is not approved, the affirmative vote of three-fourths of the votes cast
at such meeting shall be required to adopt this Agreement and approve the Amalgamation) (the
“Required IPC Vote” and, together with the Required Validus Vote, the “Required
Shareholder Votes”) is the only vote of the holders of any class or series of IPC share capital
necessary to approve this Agreement and consummate the transactions contemplated hereby (including
the Amalgamation).
3.11 Agreements with Regulators. Except as required by Insurance Laws of general
applicability and the insurance licenses maintained by its Insurance Entities or as does not have
and would not be reasonably expected to have, individually or in the aggregate, a Material Adverse
Effect, there are no written agreements, memoranda of understanding, commitment letters or similar
undertakings binding on it or any of its subsidiaries or to which it or any of its subsidiaries is
a party, on one hand, and any Governmental Entity is a party or addressee, on the other hand, or
any orders or directives by, or supervisory letters or cease-and-desist orders from, any
Governmental Entity, nor has it nor any of its subsidiaries adopted any board resolution at the
request of any Governmental Entity, in each case specifically with respect to it or any of its
subsidiaries, which (a) limit the ability of it or any of its Insurance Entities to issue
Policies or enter into Reinsurance Agreements; (b) require any divestiture of any
investment of any subsidiary; (c) in any manner relate to the ability of any of its
subsidiaries to pay dividends; (d) require any investment of its Insurance Entities to be
treated as non-admitted assets (or the local equivalent) or (e) otherwise restrict the
conduct of business of it or any subsidiary, nor has it been advised by any Governmental Entity
that it is contemplating any such undertakings.
3.12 Insurance Matters.
(a) Each of its subsidiaries which by virtue of its operations and activities is required to
be licensed as an insurance company, insurance intermediary, Lloyd’s corporate member or Lloyd’s
managing agent (collectively, the “Insurance Entities”) is listed in Section 3.12 of its
Disclosure Letter, together with the jurisdiction of domicile thereof. None of its Insurance
Entities is commercially domiciled in any other jurisdiction or is otherwise treated as domiciled
in a jurisdiction other than that of its incorporation. It conducts all of its insurance
operations that are required to be conducted through a licensed insurance company or insurance
intermediary, through its Insurance Entities, each of which is duly licensed or authorized as an
insurance company, and/or, where applicable, a reinsurer, insurance intermediary, Lloyd’s corporate
member or Lloyd’s managing agent, in its jurisdiction of incorporation and each other jurisdiction
where it is required to be so licensed or authorized and is duly licensed or authorized in each
such jurisdiction for each line of business written therein, except where the failure to so conduct
its insurance operations or the failure of its Insurance Entities to be so licensed or authorized
has not had and would not be reasonably expected to have, individually or in the aggregate, a
Material Adverse Effect.
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(b) Since January 1, 2007, each of its Insurance Entities has timely filed or submitted all
annual and, to the extent applicable Law requires, quarterly and other periodic statements,
together with all exhibits, interrogatories, notes, schedules and any actuarial opinions,
affirmations or certifications or other supporting documents in connection therewith, required to
be filed with or submitted to the appropriate insurance regulatory authorities of the jurisdiction
in which it is domiciled or commercially domiciled on forms prescribed or permitted by such
authority (as filed through the date hereof and thereafter, collectively, the “Statutory
Statements”), except, in each case, as has been cured or resolved to the satisfaction of such
insurance regulatory authority without imposition of any material penalty or as would not,
individually or in the aggregate, be reasonably expected to have a Material Adverse Effect.
It will deliver or make available to the other parties, upon request, within one (1) business
day of the termination of the IM Agreement, to the extent permitted by applicable Laws, (i) true
and complete copies of all annual Statutory Statements filed with Governmental Entities for each of
its Insurance Entities for the periods beginning January 1, 2007 through the date hereof and, once
duly and timely filed, thereafter, and the quarterly Statutory Statements for each of its Insurance
Entities for the quarterly periods ended September 30, 2008 through the date hereof and, once duly
and timely filed, thereafter, each in the form (including exhibits, annexes and any amendments
thereto) filed with the applicable insurance regulatory authority and (ii) true and complete copies
of all examination reports (and has notified the other party of any pending examinations) of any
insurance regulatory authorities received by it on or after January 1, 2007 through the date hereof
relating to its Insurance Entities. Financial statements included in its Statutory Statements were
prepared in conformity with Applicable SAP, consistently applied for the periods covered thereby,
were prepared in accordance with the books and records of the applicable Insurance Entity, and
present fairly in all material respects the statutory financial position of the relevant Insurance
Entity as of the respective dates thereof and the results of operations, cash flows, and changes in
capital and surplus (or stockholders’ equity, as applicable) of such Insurance Entity for the
respective periods then ended. Its Statutory Statements complied in all material respects with all
applicable Laws when filed or submitted and no material violation or deficiency has been asserted
in writing by any Governmental Entity with respect to any of its Statutory Statements that have not
been cured or otherwise resolved to the satisfaction of such Governmental Entity. The statutory
balance sheets and income statements included in its annual Statutory Statements have been audited
by its independent auditors, and it has delivered or made available to the other party true and
complete copies of all audit opinions related thereto for periods beginning January 1, 2007 through
the date hereof. Except as is indicated therein, all assets that are reflected on its
subsidiaries’ Statutory Statements comply in all material respects with all applicable Insurance
Laws regulating the investments of Insurance Entities and all applicable Insurance Laws with
respect to admitted assets and are in amount at least equal to the minimum amount required by
applicable Insurance Laws. The financial statements included in its Statutory Statement accurately
reflect in all material respects the extent to which, pursuant to applicable Laws and Applicable
SAP, the applicable Insurance Entity is entitled to take credit for reinsurance (or any local
equivalent concept).
(c) The loss reserves and other actuarial amounts of each of its Insurance Entities contained
in its Statutory Statements: (i) were determined in accordance with generally accepted
actuarial standards and principles and other qualitative methods materially consistently applied
(except as otherwise noted in such financial statements), (ii) complied in all material
respects with applicable Laws and were computed on the basis of methodologies materially consistent
with those used in computing the corresponding reserves in the prior fiscal years, except as
otherwise noted in the financial statements and notes thereto included in such Statutory
Statements, and (iii) include provisions for all actuarial reserves and related items which
are required to be established in accordance with applicable Law. To its knowledge, no facts or
circumstances exist which would necessitate any material increase in the statutorily required
reserves above those reflected in the most recent balance sheet included in the Statutory
Statements.
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(d) Within one (1) business day of the termination of the IM Agreement, it will, upon request,
make available to the other party true and complete copies of all actuarial reports used as the
basis for establishing the reserves for each of its subsidiary Insurance Entities from and after
January 1, 2007, and all material attachments, addenda, supplements and modifications thereto. To
its knowledge, any information and data to be furnished by it or any of its subsidiaries to
independent actuaries in connection with the preparation of such actuarial reports will be accurate
in all material respects. To its knowledge, such actuarial reports will have been based upon an
accurate inventory of Policies and Reinsurance Agreements in force for it and its subsidiaries, as
the case may be, at the relevant time of preparation and will have been prepared in conformity in
all material respects with generally accepted actuarial principles and other qualitative methods in
effect at such time (except as may be noted therein) and the projections contained therein will
have been properly prepared in accordance with the assumptions stated therein.
(e) As of the date of this Agreement, all reinsurance or retrocession treaties or agreements,
slips, binders, cover notes or other similar arrangements to which it or any of its subsidiaries is
a party or under which it or any of its subsidiaries has any existing rights, obligations or
liabilities (the “Reinsurance Agreements”) are, and after the consummation of the
transactions contemplated hereby will continue to be, valid and binding obligations of it and its
subsidiaries (to the extent they are parties thereto or bound thereby) and, to its knowledge, each
other party thereto, in accordance with their terms and are in full force and effect, and it and
each of its subsidiaries (to the extent they are party thereto or bound thereby) and, to its
knowledge, each other party thereto has performed in all material respects all obligations required
to be performed by it under each Reinsurance Agreement, except as has not had and would not
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Neither it nor any of its subsidiaries has received notice, nor does it have knowledge, of any
violation or default in respect of any obligation under (or any condition which, with the passage
of time or the giving of notice or both, would result in such a violation or default), or any
intention to cancel, terminate or change the scope of rights and obligations under, or not to
renew, any Reinsurance Agreement, except, in each case, as has not had and would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect. Since January 1,
2007, (i) neither it nor its subsidiaries have received any written notice from any party
to a Reinsurance Agreement that any amount of reinsurance ceded by it or such subsidiary to such
counterparty will be uncollectible or otherwise defaulted upon, (ii) to its knowledge, no
party to a Reinsurance Agreement under which it or its subsidiary is the cedent is insolvent or the
subject of a rehabilitation, liquidation, conservatorship, receivership, bankruptcy or similar
proceeding, (iii) to its knowledge, the financial condition of any party to a Reinsurance
Agreement under which it or its subsidiary is the cedent is not impaired to the extent that a
default thereunder is reasonably anticipated, (iv) there are no disputes under any
Reinsurance Agreement other than disputes in the ordinary course for which adequate loss reserves
have been established and (v) its relevant subsidiary is entitled under any applicable Law
and Applicable SAP to take full credit in its Statutory Statements for all amounts recoverable by
it pursuant to any Reinsurance Agreement under which it is the cedent and all such amounts
recoverable have been properly recorded in its books and records of account (if so accounted
therefor) and are properly reflected in its Statutory Statements, except as has not had and would
not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(f) Except as has not had and would not be reasonably expected to have, individually or in the
aggregate, a Material Adverse Effect, with respect to any Reinsurance Agreement for which the
ceding insurer party thereto is taking credit on its most recent Statutory Statements, to its
knowledge, from and after January 1, 2007 (i) there has been no separate written or oral
agreement between such ceding insurer and the assuming reinsurer that would under any circumstances
reduce, limit, mitigate or otherwise affect any actual or potential loss to the parties under any
such Reinsurance Agreement, other than inuring contracts that are explicitly defined in any such
Reinsurance Agreement, (ii) for each such Reinsurance Agreement entered into, renewed or
amended on or after January 1, 2007, for which risk transfer
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is not reasonably considered to be self-evident to the extent required by any applicable
provisions of SSAP No. 62, documentation concerning the economic intent of the transaction and the
risk transfer analysis evidencing the proper accounting treatment is available for review by the
relevant Governmental Entities for each of it and its subsidiaries, (iii) its subsidiary
that is a party thereto, and to its knowledge, any other party thereto, complies and has complied
from and after January 1, 2007 with any applicable requirements set forth in SSAP No. 62, and
(iv) such Insurance Entity has and had since January 1, 2007 appropriate controls in place
to monitor the use of reinsurance and comply with the provisions of SSAP No. 62.
(g) All policies, policy forms, binders, slips, treaties, certificates, insurance or
reinsurance contracts or participation agreements and other agreements of insurance or reinsurance,
whether individual or group (including all applications, supplements, endorsements, riders and
ancillary agreements in connection therewith) and all amendments, applications, brochures,
illustrations and certificates pertaining thereto (the “Policies”), in effect as of the
date of this Agreement, that are issued by it or its subsidiaries and any and all marketing
materials have been, to the extent required under applicable Law, filed with or submitted to and
not objected to by such Governmental Entity within the period provided for objection, and such
Policies and marketing materials comply with the Insurance Laws applicable thereto and have been
administered in accordance therewith, except as has not had and would not be reasonably expected to
have, individually or in the aggregate, a Material Adverse Effect. All premium rates established
by it or its subsidiaries that are required to be filed with or submitted to or approved by
Governmental Entities have been so filed, submitted or approved, the premiums charged conform
thereto and such premiums comply with the Insurance Laws applicable thereto, except as has not had
and would not be reasonably expected to have, individually or in the aggregate, a Material Adverse
Effect.
(h) To its knowledge, each insurance agent, general agent, agency, producer, broker,
reinsurance intermediary, program manager, managing general agent and managing general underwriter
currently selling, issuing or underwriting business for or on behalf of it or its subsidiaries
(including it and its subsidiaries’ salaried employees) (each, an “Agent”) was duly
licensed for the type of activity and business conducted or written, sold, produced, underwritten
or managed. To its knowledge, each program manager, managing general agent, third party
administrator or claims adjuster or manager, at the time such person managed or administered
business (including without limitation the administration, handling or adjusting of claims) for or
on behalf of it or its subsidiaries (each, an “Administrator”) was duly licensed for the
type of activity conducted. To its knowledge, no Agent or Administrator has materially violated or
is currently in violation in any material respect of any term or provision of any Law applicable to
the writing, sale, production, underwriting or administration of business for it or its
subsidiaries, except for such failures or such violations which have been cured, that have been
resolved or settled through agreements with applicable Governmental Entities or that are barred by
an applicable statute of limitations. Each Agent was appointed and compensated by it or its
subsidiaries in compliance in all material respects with applicable Law and all processes and
procedures used in making inquiries with respect of such Agent were undertaken in compliance in all
material respects with applicable Law. No Agent has binding authority on behalf of it or its
subsidiaries. As of the date of this Agreement, no Agent accounting individually for 1% or more of
the total gross premiums of all of its Insurance Entities for the year ended December 31, 2008 has
indicated to it or its subsidiaries in writing or, to its knowledge, orally that such Agent will be
unable or unwilling to continue its relationship as an Agent with it or its subsidiary within
twelve months after the date hereof.
(i) Each of its Insurance Entities has duly and timely filed all reports or other filings
required to be filed with any insurance regulatory authority in the manner prescribed therefor
under applicable Laws and Permits and no Governmental Entity has asserted any deficiency or
violation with respect thereto, except as has been cured or resolved to the satisfaction of the
Government Entity or except, in each case, as has not had and would not reasonably be expected to
have, individually or in the aggregate,
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a Material Adverse Effect. Without limiting the foregoing, each of its and its subsidiaries’
submissions, reports or other filings under applicable insurance holding company statutes or other
applicable Insurance Laws with respect to contracts, agreements, arrangements and transactions
between or among Insurance Entities and their affiliates, and all contracts, agreements,
arrangements and transactions in effect between any subsidiary that is an Insurance Entity and any
affiliate are in compliance with the requirements of all applicable insurance holding company
statutes or other such Insurance Laws and all required approvals or deemed approvals of insurance
regulatory authorities with respect thereto have been received or obtained, except as has not had
and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect.
(j) Copies (which are complete and correct in all material respects) of all analyses, reports
and other data prepared by or on behalf of any of its Insurance Entities or submitted by or on
behalf of any such Insurance Entity to any insurance regulatory authority relating to risk based
capital calculations or Insurance Regulatory Information Systems ratios will provide to the other
party, upon request, within one (1) business day of the termination of the IM Agreement.
(k) Except for regular periodic assessments in the ordinary course of business, there are no
material unpaid claims and assessments against it or its subsidiaries, whether or not due, by any
insurance guaranty association (in connection with that association’s fund relating to insolvent
insurers), joint underwriting association, residual market facility or assigned risk pool. No such
material claim or assessment is pending and neither it nor any subsidiary has received written
notice of any such material claim or assessment against it or its subsidiaries by any insurance
guaranty association, joint underwriting association, residual market facility or assigned risk
pool.
(l) Since July 2, 2007, Validus and/or any of its subsidiaries which participate in Lloyd’s:
(i) has not participated on any Lloyd’s syndicate other than syndicate 1183; (ii) has not agreed to
sell, transfer or “drop” any of its rights to participate in a Lloyd’s syndicate or offered to
acquire rights to participate on a Lloyd’s syndicated; (iii) has complied with the franchise
standards (including principles and minimum standards, guidance and advice) issued by Lloyd’s and
(iv) all documents relating to the participation of it or any of its subsidiaries’ participation at
Lloyd’s are in Lloyd’s standard form and have not been amended in any way, including the standard
managing agent’s agreement, in each case, except as had not had and would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.
(m) Since July 2, 2007: (i) all funds held on behalf of Lloyd’s syndicate 1183 are held in
accordance with the terms of the relevant premiums trust deed or other deposit arrangement as
required by the bye-laws, regulations, codes of practice and mandatory directions and requirements
governing the conduct and management of underwriting business at Lloyd’s from time to time and the
provisions of any deed, agreement or undertaking executed, made or given for compliance with
Lloyd’s requirements from time to time (“Lloyd’s Regulations”) and (ii) Validus and/or any
of its subsidiaries required to do so have complied in all material respects with all relevant
regulations, directions, notices and requirements in relation to the maintenance of Funds at
Lloyd’s (as defined in the Lloyd’s Membership Byelaw (No. 5 of 2005)) in accordance with Lloyd’s
Regulations and any directions imposed on it or any of its subsidiaries by Lloyd’s.
3.13 Investments; Derivatives.
(a) The information provided by each party to the SEC in its Annual Report on Form 10-K for
the fiscal year ended December 31, 2008, related to its investment assets, including, without
limitation, bonds, notes, debentures, mortgage loans, real estate, collateral loans, derivatives
(including swaps, swaptions, caps, floors, foreign exchange, and options or forward agreements) and
all other
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instruments of indebtedness, stocks, partnership or joint venture interests and all other equity
interests, certificates issued by or interests in trusts, alternative investments and direct or
indirect investments in hedge funds, whether entered into for its own or its subsidiaries or their
customers’ accounts (such investment assets, together with all investment assets held between such
date and the Closing Date are referred to herein as the “Investment Assets”) is true and
complete in all material respects as of December 31, 2008.
(b) As of the date of this Agreement, to its knowledge, none of the Investment Assets is in
default in the payment of principal or interest or dividends.
(c) As of the date of this Agreement, to its knowledge, the Investment Assets comply in all
material respects with, and the acquisition thereof complied in all material respects with, any and
all investment restrictions under applicable Law and its Investment Policy (as hereinafter
defined). Except for Investment Assets sold in the ordinary course of business consistent with
past practice or as contemplated by this Agreement, each of it and its subsidiaries, as applicable,
has good and marketable title to all of the Investment Assets it purports to own, free and clear of
all encumbrances except Permitted Encumbrances (as defined in Section 8.13(a)). Upon request, it
will provide a copy of its and its subsidiaries’ policies with respect to the investment of the
Investment Assets (its “Investment Policy”) to the other party within one (1) business day
of the termination of the IM Agreement.
(d) To its knowledge, none of its Investment Assets is subject to any capital calls or similar
liabilities, or any restrictions or suspensions on redemptions, lock-ups, “gates,” “side-pockets,”
stepped-up fee provisions or other penalties or restrictions relating to withdrawals or
redemptions, except as would not be reasonably expected to have, individually or in the aggregate,
a Material Adverse Effect.
(e) Each agreement with each investment manager or investment advisor providing services to it
or any of its subsidiaries was entered into, and the performance of each investment manager is
evaluated, in a commercially reasonable, arm’s length manner.
(f) Neither it nor any of its subsidiaries holds any derivative instruments, including swaps,
swaptions, caps, floors, foreign exchange and option or forward agreements, whether entered into
for its account, or for the account of any of its subsidiaries or their customers.
(a) As of the date of this Agreement, neither it nor any of its subsidiaries is a party to or
bound by any contract (other than any Policy or Reinsurance Agreement) (i) that is or will
be required to be filed by it as a material contract pursuant to Item 601(b)(10) of Regulation S-K
of the SEC that is not already so filed; (ii) that limits or purports to limit in any
material respect either the type of business in which it or any of its subsidiaries (or, after
giving effect to the Amalgamation, Validus or any of its subsidiaries) may engage or the manner or
locations in which any of them may so engage in any business; (iii) that creates a
partnership, joint venture, strategic alliance or similar arrangement with respect to any of its or
its subsidiaries’ material business or assets; (iv) that is an indenture, credit agreement,
loan agreement, security agreement, guarantee, note, mortgage or other agreement providing for or
guaranteeing indebtedness in excess of $5,000,000; (v) that, individually or together with
related contracts, provides for any acquisition, disposition, lease, license or use after the date
of this Agreement of assets, services, rights or properties with a value or requiring annual fees
in excess of $5,000,000 or that comprise more than 15% of its business on a consolidated basis;
(vi) that is a collective bargaining agreement; (vii) that involves or could
reasonably be expected to involve aggregate payments by or to it and/or its subsidiaries in excess
of $5,000,000 in any twelve month period, except for any contract that may be cancelled without
penalty or termination payments by it or its subsidiaries upon notice of 60 days or less;
(viii) that includes an indemnification obligation of it or any of its subsidiaries with a
maximum potential liability in
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excess of $5,000,000; (ix) that is an investment advisory or investment management
agreement or arrangement to which it or any of its subsidiaries is a party or under which any
Investment Asset is invested or managed or any third party has the right or power to make
discretionary or investment decisions with respect to any Investment Asset or (x) that
would or would reasonably be expected to, individually or in the aggregate, prevent, materially
delay or materially impede its ability to consummate the transactions contemplated by this
Agreement or Validus’ and its subsidiaries’ ability to own and/or to conduct the businesses after
the Closing. Each such contract described in clauses (i)-(x) is referred to herein
as a “Material Contract.”
(b) Each Material Contract is, and after the consummation of the transactions contemplated by
this Agreement will continue to be, a valid and binding obligation of it and its subsidiaries (to
the extent they are parties thereto or bound thereby) enforceable against it and, to its knowledge,
each other party thereto, in accordance with its terms and is in full force and effect, and it and
each of its subsidiaries (to the extent they are party thereto or bound thereby) and, to its
knowledge, each other party thereto has performed in all material respects all obligations required
to be performed by it under each Material Contract, except where such failure to be valid and
binding or such non-performance has not had and would not be reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect. Neither it nor any of its
subsidiaries has received written notice, nor does it have knowledge, of any material violation or
default in respect of any material obligation under (or any condition which with the passage of
time or the giving of notice or both would result in such a violation or default), or any intention
to cancel, terminate, change the scope of rights and obligations under or not to renew, any
Material Contract.
(c) Validus’ Annual Report filed with the SEC on Form 10-K for the year ended December 31,
2008, sets forth all contracts, agreements, notes, leases, licenses and other instruments between
Validus and any of its affiliates or between two or more affiliates of Validus. Section 3.14(c) of
IPC’s Disclosure Letter sets forth all contracts, agreements, notes, leases, licenses and other
instruments between IPC and any of its affiliates or between two or more affiliates of IPC. Each
Validus intercompany agreement or IPC intercompany agreement, as the case may be, to which any
Insurance Entity is a party has been duly approved by each Governmental Entity whose approval is
required therefor, except where the failure to obtain such approval has not had and would not be
reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
(a) It has disclosed its Compensation and Benefits Plans in Section 3.15(a) of its Disclosure
Letter and it will deliver or make available, to the extent requested, to the other party within
one (1) business day of the termination of the IM Agreement correct and complete copies of,
(i) each of its material Compensation and Benefit Plans (as defined in Section 8.13(a)),
(ii) each applicable trust agreement or other funding arrangement for each such
Compensation and Benefit Plan (including insurance contracts), and all amendments thereto,
(iii) with respect to any such Compensation and Benefit Plan that is intended to be
tax-qualified or tax-preferred under applicable Law, any applicable determination letter issued by
the U.S. Internal Revenue Service and any other applicable determination document issued by any
equivalent non-U.S. taxing or regulatory authority, in each case, confirming the tax-qualified or
tax-preferred status of such Compensation and Benefit Plan, (iv) annual reports or returns,
audited or unaudited financial statements, actuarial valuations and reports, and summary annual
reports or other reports prepared for any Compensation and Benefit Plan with respect to the two
most recently completed plan years, and (v) the most recent summary plan description for
any Compensation and Benefit Plan and summary of any material modifications thereto.
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(b) Each of its Compensation and Benefit Plans is in compliance with applicable Laws in all
material respects and has been administered in all material respects in accordance with its terms.
There are no actions, suits, investigations or claims pending, or to its knowledge, threatened or
anticipated (other than routine claims for benefits) relating to any Compensation and Benefit Plan.
(c) Neither it nor any of its subsidiaries has any obligations for retiree health and retiree
life benefits under any Compensation and Benefit Plan other than with respect to benefit coverage
mandated by applicable Law. There has been no amendment to, announcement by it or any of its
subsidiaries relating to, or change in employee participation in coverage under, any Compensation
and Benefit Plan which would materially increase the expense of maintaining such plan above the
level of the expense incurred therefor for the most recent fiscal year.
(d) None of the execution and delivery of this Agreement, the shareholder approval of the
transactions contemplated hereby, the termination of the employment of any of its or its
subsidiaries’ employees within a specified time of the Effective Time or the consummation of the
transactions contemplated hereby will (i) result in any payment (including severance,
golden parachute, or otherwise), whether or not in conjunction with a termination of employment,
becoming due to any director or any employee of it or any of its subsidiaries from it or any of its
subsidiaries under any Compensation and Benefit Plan or otherwise, other than by operation of Law,
(ii) increase any benefits otherwise payable under any Compensation and Benefit Plan,
(iii) result in any acceleration of the time of payment or vesting of any such benefit or
funding (through a grantor trust or otherwise) of any such payment or benefit, (iv) limit
or restrict the right of it to merge, amend or terminate any Compensation and Benefit Plan or any
related trust, (v) cause a trust for any Compensation and Benefit Plan to be required to be
funded, or (vi) result in payments under any Compensation and Benefit Plan which would not
be deductible under Section 280G of the Code or any equivalent non-U.S. tax Law.
(e) Each of its Compensation and Benefit Plans that is intended to be qualified under Section
401(a) of the Code has received a favorable determination letter from the U.S. Internal Revenue
Service and nothing has occurred that could reasonably be expected to cause the loss of such
qualification. Neither it nor any of its subsidiaries has engaged in a transaction with respect to
any Compensation and Benefit Plan that would subject it or any of its subsidiaries to a Tax or
penalty imposed by either Section 4975 of the Code or Section 502(i) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”). Neither it nor any of its subsidiaries
(i) has an “obligation to contribute” (as defined in ERISA Section 4212) nor have they ever had an
obligation to contribute to a “multiemployer plan” (as defined in ERISA Sections 4001(a)(3) and
3(37)(A)) or (ii) maintains or contributes to, or has, within six years preceding the date of this
Agreement, maintained or contributed to, an “employee pension benefit plan” (as defined in Section
3(2) of ERISA) subject to Title IV of ERISA or Section 412 of the Code.
(a) None of its or its subsidiaries’ employees are represented by any union with respect to
their employment by it or its subsidiaries, and no labor organization or group of employees of it
or any of its subsidiaries has made a pending demand for recognition or certification to it or any
of its subsidiaries and there are no representation or certification proceedings or petitions
seeking a representation proceeding presently pending or, to its knowledge, threatened to be
brought or filed with any labor relations tribunal or authority. Since January 1, 2007, neither it
nor any of its subsidiaries has experienced any material labor disputes, union organization
attempts or work stoppages, slowdowns or lockouts due to labor disagreements.
(b) (i) No unfair labor practice charges, grievances or complaints are pending or, to
its knowledge, threatened against it or any of its subsidiaries, (ii) no employee of it at
the officer level or
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above has given written notice to it or any of its subsidiaries that any such employee intends
to terminate his or her employment with it or any of its subsidiaries, (iii) to its
knowledge, no employee or former employee of it or any of its subsidiaries is in any respect in
violation of any term of any employment contract, nondisclosure agreement (including any agreement
relating of trade secrets or proprietary information) or non-competition agreement with it or any
of its subsidiaries, and (iv) it and its subsidiaries have materially complied with all
applicable Laws, contracts, policies, plans and programs relating to employment, employment
practices, compensation, benefits, hours, terms and conditions of employment and the termination of
employment.
(c) Each of its employees has all work permits, immigration permits, visas or other
authorizations required by Law for such employee given the duties and nature of such employee’s
employment and Section 3.16(c) of its Disclosure Letter sets forth a true and complete list of such
work permits, immigration permits, visas or other authorizations currently held by its employees.
(a) It and each of its subsidiaries has sufficient rights to use all of the Intellectual
Property used in its and each of its subsidiaries’ respective businesses as presently conducted and
as proposed to be conducted, all of which rights shall survive unchanged the consummation of the
transactions contemplated by this Agreement. The Intellectual Property owned by it or its
subsidiaries is (i) owned free and clear of any claim, lien or encumbrance (other than Permitted
Encumbrances), and (ii) valid and subsisting, and is not subject to any outstanding order, judgment
or decree adversely affecting its or its subsidiaries use thereof, or rights thereto.
(b) Section 3.17 of its Disclosure Letter, which, with respect to Validus, shall be provided
within one (1) business day of the termination of the IM Agreement, sets forth a true list of (i)
all registered trademarks and service marks, all trademark and service xxxx applications, and all
domain names owned by it and/or its subsidiaries, (ii) all registered copyrights and copyright
applications owned by it and/or its subsidiaries, and (iii) all patents and patent applications
owned by it and/or its subsidiaries.
(c) Any underwriting model it has created or uses in its business that, among other things,
assesses policy risk and premium (each an “Underwriting Model”) is based, in all material
respects, on information that is confidential and/or proprietary to it (other than third-party
vendor model information contained therein). It owns exclusively, free and clear of any claim,
lien or encumbrance (other than Permitted Encumbrances), all of the proprietary information
(including all Intellectual Property rights) upon which each Underwriting Model is based.
(d) All of the rights in the Intellectual Property created by its or any of its subsidiaries’
employees during the course of their employment, including any software developed to use the
Underwriting Model, have been validly and irrevocably assigned to it.
(e) It and each of its subsidiaries has taken all reasonable measures to protect the
confidentiality of all Trade Secrets (as hereinafter defined) that are owned, used or held by it or
each of its subsidiaries, and to its knowledge, such Trade Secrets have not been used, disclosed to
or discovered by any person except pursuant to valid and appropriate non-disclosure agreements
which have not been breached.
(f) To its knowledge, neither it nor any of its subsidiaries has infringed, misappropriated or
otherwise violated the Intellectual Property rights of any third party during the five (5) year
period immediately preceding the date of this Agreement. There is no litigation, opposition,
cancellation, proceeding, reexamination, objection or claim pending, asserted or, to its knowledge,
threatened against it
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or any of its subsidiaries concerning the ownership, validity, registerability,
enforceability, infringement or use of, or licensed right to use, any Intellectual Property. To
its knowledge, no valid basis exists for any such litigation, opposition, cancellation, proceeding,
objection or claim. To its knowledge, no person is infringing, misappropriating or otherwise
violating any of its or its subsidiaries’ rights in any Intellectual Property.
(g) It and its subsidiaries has each complied in all material respects with (i) all
applicable Laws, rules and regulations regarding data protection and the privacy and security of
personal information, and (ii) their respective privacy policies or commitments to their
customers and consumers.
3.18 Properties. Neither it nor any of its subsidiaries owns any real property. It or
one of its subsidiaries has (a) a valid leasehold or sublease interest or other comparable
contract right in the real property that it or any of its subsidiaries leases, subleases or
otherwise occupies without owning and (b) good, valid and marketable title to, or has a valid
leasehold, sublease interest or other comparable contract right in, the other tangible assets and
properties necessary to the conduct of the business as currently conducted, except (i) as have
been disposed of in the ordinary course of business, in each case free and clear of all
encumbrances except for Permitted Encumbrances, or (ii) as has not had and would not be reasonably
expected to have, individually or in the aggregate, a Material Adverse Effect. It and its
subsidiaries have complied in all material respects with the terms of all such leases, and to its
knowledge, all such leases are in full force and effect.
3.19 Brokers or Finders. Other than, in the case of IPC, X.X. Xxxxxx Securities Inc.
(“XX Xxxxxx”) and, in the case of Validus, Xxxxxxxxx & Co., LLC (“Greenhill”), no
agent, broker, investment banker, financial advisor or other firm or person is or will be entitled
to any broker’s or finder’s fee or any other similar commission or fee in connection with any of
the transactions contemplated by this Agreement based upon arrangements made by or on behalf of it
or any of its subsidiaries. Prior to the date of execution of this Agreement by IPC, IPC has
provided a true and complete copy of its engagement letter with its financial advisor to Validus.
3.20 Investment Advisor. Neither it nor any of its subsidiaries conducts activities of or
is required to be registered as an “investment advisor” as such term is defined in Section 2(a)(2)
of the Investment Company Act of 1940. Neither it nor any of its subsidiaries is required to be
registered as an “investment company” as defined under the Investment Company Act of 1940.
(a) In the case of IPC, the board of directors of IPC has received the opinion of its
financial advisor, XX Xxxxxx, dated the date of execution of this Agreement by all parties, to the
effect that, as of such date, the Amalgamation Consideration to be paid by Validus to the
shareholders of IPC pursuant to Section 2.1(a) is fair, from a financial point of view, to the
holders of IPC Common Shares (other than Validus and its subsidiaries).
(b) In the case of Validus, the board of directors of Validus has received the opinion of its
financial advisor, Greenhill, dated as of March 31, 2009, to the effect that, as of such date, the
Exchange Ratio is fair, from a financial point of view, to Validus.
3.22 Takeover Laws. To its knowledge as of the date of this Agreement, no “fair price,”
“moratorium,” “control share acquisition,” “interested shareholder” or other anti-takeover statute
or regulation would reasonably be expected to restrict or prohibit this Agreement, the
Amalgamation or the other transactions contemplated hereby by reason of it being a party to this
Agreement, performing
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its obligations hereunder and consummating the Amalgamation and the other transactions
contemplated hereby.
ARTICLE IV
4.1 Covenants of Validus and IPC. During the period from the date of this Agreement
and continuing until the Effective Time, Validus and IPC agree as to themselves and their
respective subsidiaries that, except as expressly contemplated or permitted by this Agreement, as
required by applicable Law, as set forth in Section 4.1 of the Validus Disclosure Letter (in the
case of Validus) or Section 4.1 of the IPC Disclosure Letter, including the supplement thereto
attached as Exhibit F hereto (in the case of IPC) or to the extent that IPC (in the case
of Validus) or Validus (in the case of IPC) shall otherwise consent in writing, that it and its
subsidiaries shall carry on their respective businesses in the usual, regular and ordinary course
of business consistent with past practice (including, for the avoidance of doubt, adhering to any
operating guidelines and policies, whether or not written) and use commercially reasonable efforts
to preserve intact their present business organizations, maintain their Permits and preserve their
relationships with employees, investment advisers and managers, customers, policyholders,
reinsureds, retrocedents, regulators, Agents, Administrators, lenders and financing providers and
others having business dealings with them. Without limiting the generality of the foregoing,
except as expressly required by applicable Law or as set forth in Section 4.1 of the Validus
Disclosure Letter (in the case of Validus) or Section 4.1 of the IPC Disclosure Letter (in the
case of IPC), Validus and IPC shall not, and shall not permit any of their respective
subsidiaries, except as expressly noted in a subsection or clause that it is solely applicable to
IPC and its subsidiaries, to:
(a) (i) declare or pay, or propose to declare or pay, any dividends on or make
other distributions in respect of any of its share capital (whether in cash, shares or
property or any combination thereof), except for (A) dividends paid by a direct or
indirect wholly-owned subsidiary to it or its subsidiaries and (B) subject to
Section 5.14, ordinary course quarterly dividends on its common shares with record and
payment dates consistent with past practice; provided that any such dividend shall
be at a rate no greater than the rate paid by it during the fiscal quarter immediately
preceding the date of Agreement, (ii) split, combine or reclassify, or propose to
split, combine or reclassify, any of its share capital, or issue or authorize or propose the
issuance or authorization of any other securities in respect of, in lieu of or in
substitution for, shares of its share capital, or (iii) in the case of IPC and its
subsidiaries, repurchase, redeem or otherwise acquire, propose to repurchase, redeem or
otherwise acquire, any shares of its (or any of its subsidiaries’) share capital or any
securities convertible into or exercisable for any shares of its (or any of its
subsidiaries’) share capital, other than repurchases, redemptions or acquisitions by a
wholly-owned subsidiary of share capital or such other securities, as the case may be, of
another of its wholly-owned subsidiaries;
(b) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of,
any shares of its (or any of its subsidiaries’) share capital of any class, any Voting Debt,
any share appreciation rights or any securities convertible into or exercisable or
exchangeable for, or any rights, warrants or options to acquire, any such shares or Voting
Debt, or enter into any agreement with respect to any of the foregoing (it being understood
that no such issuance, delivery or sale shall result in a net credit to either party’s Book
Value Estimate made in connection with Section 5.16), other than (i) the issuance of
common shares required to be issued upon the exercise or settlement of share options or
other equity related awards outstanding on the date hereof under the Validus Share Plans the
IPC Share Plans, as the case may be, as in effect on the date hereof, (ii) issuances
by a wholly-owned subsidiary of share capital or capital stock, as the case may
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be, to it or another of its wholly-owned subsidiary and (iii) the issuance of
Validus Common Shares in connection with the consummation of this Agreement;
(c) amend or propose to amend its memorandum of association or bye-laws or equivalent
organizational documents of any of its subsidiaries (except in accordance with the IPC
Bye-Law Amendment) and shall not waive any requirement thereof;
(d) (i) other than in connection with transactions related to its Investment Assets
entered into in accordance with its Investment Policy or after obtaining the written consent
of the other parties hereto (which consent shall not be unreasonably withheld or delayed),
acquire or agree to acquire, by amalgamating, merging or consolidating with, by purchasing a
substantial equity interest in or a substantial portion of the assets of, by forming a
partnership or joint venture with, or by any other manner, any corporation, partnership,
association or other business organization or division thereof, or any material assets,
rights or properties (it being understood that no such acquisition shall result in a net
credit to either party’s Book Value Estimate made in connection with Section 5.16) or (ii)
other than in connection with transactions related to its Investment Assets entered into in
accordance with its Investment Policy or that results in the creation or incurrence of a
Permitted Encumbrance, sell, lease, assign, transfer, license, encumber, abandon or
otherwise dispose of, or agree to sell, lease, assign, transfer, license, encumber, abandon
or otherwise dispose of, any of its assets, product lines, businesses, rights or properties
(including capital stock of its subsidiaries and indebtedness of others held by it and its
subsidiaries);
(e) other than any Validus Benefit Plan, as applicable, other than any IPC Benefit
Plan, as applicable (which is subject to paragraph (k) below) or as contemplated by Section
6.3(f): amend, modify or terminate any Material Contract, or cancel, modify or waive any
debts or claims held by it under, or waive any rights in connection with, any Material
Contract, or enter into any contract or other agreement of any type, whether written or
oral, that would have been a Material Contract had it been entered into prior to this
Agreement;
(f) do or permit any of its subsidiaries, investments managers or advisers, or Agents
or Administrators to do any of the following: (i) fail to comply with the Investment
Policy, or amend, modify or otherwise change the Investment Policy in any material respect,
except as may be required by (or, in its reasonable good faith judgment, advisable under)
GAAP, Applicable SAP or any Governmental Entity or applicable Laws, (ii) enter into,
purchase, sell, amend or modify any derivative other than in the ordinary course of business
consistent with past practice and its Investment Policy or (iii) voluntarily
forfeit, abandon, modify, waive, terminate or otherwise change any of its material Permits;
(g) take any action with the actual knowledge and intent that it would result in any of
the conditions to the Amalgamation set forth in ARTICLE VI not being satisfied or take any
action that would materially adversely affect the ability of the parties to obtain any of
the Requisite Regulatory Approvals (as defined in Section 6.1(c)) without imposition of a
condition or restriction of the type referred to in Section 6.2(d) or Section 6.3(d), as the
case may be);
(h) (i) except as disclosed in any of its SEC Documents filed prior to the date of this
Agreement, change its methods of accounting in effect at December 31, 2008, except as
required by changes in applicable Laws, GAAP or Applicable SAP as concurred to by its
independent auditors, (ii) make, change or revoke any material Tax election, file any
amended Tax Return, settle any Tax claim, audit, action, suit, proceeding, examination or
investigation or change its method of tax accounting (except, with respect to any amended
Tax Return or any change in tax accounting method, as required by changes in applicable Law
(or any Taxing Authority’s interpretation
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thereof)), in each case, if such action would have the effect of increasing any of its
Tax liabilities by an amount that is material or (iii) alter or amend in any material
respect its Investment Policy or any existing underwriting, claim handling, loss control,
investment, actuarial or financial reporting practices, methods, guidelines or policies or
any material assumption underlying an actuarial policy or practice (including compliance
policies), except as may be required by (or, in its reasonable good faith judgment,
advisable under) GAAP, Applicable SAP or any Governmental Entity or applicable Laws;
(i) adopt any plan of complete or partial liquidation or dissolution, restructuring,
recapitalization or reorganization;
(j) settle or compromise any Legal Proceedings other than settlements or compromises of
Legal Proceedings (i) where the amount paid (less the amount reserved for such
matters by it in the latest audited balance sheet included in its SEC Documents and any
insurance coverage applicable thereto) in settlement or compromise, in each case, does not
exceed $1,000,000 and such settlement or compromise only involves monetary relief or
(ii) arising from ordinary course claims for insurance under contracts of insurance
or reinsurance issued by one of its subsidiaries;
(k) with respect to IPC and its subsidiaries only, (i) enter into, adopt, amend
or terminate any IPC Benefit Plan, as the case may be, or any other employee benefit plan or
any agreement, arrangement, plan or policy between it or one of its subsidiaries and one or
more of its employees, directors or officers other than as required by this Agreement or in
the ordinary course of business consistent with past practice, (ii) except as
required by any IPC Benefit Plan, as the case may be, as in effect as of the date hereof,
increase in any manner the compensation or fringe benefits of any director, officer,
employee, independent contractor or consultant or pay any benefit not required by any IPC
Benefit Plan, as the case may be, as in effect as of the date hereof or enter into any
contract, agreement, commitment or arrangement to do any of the foregoing, except for normal
payments, awards and increases to employees who are not directors or officers in the
ordinary course of business consistent with past practice, or (iii) enter into or
renew any contract, agreement, commitment or arrangement (other than a renewal occurring in
accordance with the terms of a IPC Benefit Plan, as the case may be) providing for the
payment to any director, officer, employee, independent contractor or consultant of
compensation or benefits contingent, or the terms of which are materially altered, upon the
occurrence of any of the transactions contemplated by this Agreement;
(l) incur, create or assume any indebtedness for borrowed money (or modify any of the
material terms of any such outstanding indebtedness), including by way of an intercompany
loan to it, guarantee any such indebtedness or issue or sell any debt securities or warrants
or rights to acquire any debt securities of it or any of its subsidiaries or guarantee any
debt securities of others, other than (i) in replacement of existing or maturing debt, (ii)
in connection with amending existing indebtedness agreements in connection with the
Amalgamation and the other transactions contemplated hereby, (iii) in the ordinary course of
the insurance or reinsurance business and (iv) draw-downs pursuant to existing credit
facilities and letters of credit;
(m) grant, extend, amend, waive or modify any material rights in or to, nor sell,
assign, lease, transfer, license, let lapse, abandon, cancel or otherwise dispose of, any
material Intellectual Property rights; or
(n) agree to, or make any commitment to, take, or authorize, any of the actions
prohibited by this Section 4.1.
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4.2 Financing.
(a) In the event that the parties mutually determine that it is desirable to obtain new, or
amend or obtain waivers under any of their existing, credit facilities or other existing financing
arrangements (“Financing”) in connection with the Amalgamation and the other transactions
contemplated hereby, then the parties shall, and shall cause each of their respective subsidiaries
to, use commercially reasonable efforts to cooperate with each other and to cause their respective
directors, officers, employees, agents and representatives to cooperate in connection with the
arrangement of such Financing, including with respect to the giving (effective as of the Effective
Time) of any mutually acceptable guarantees required by the lenders in connection therewith;
provided that (i) such requested cooperation does not unreasonably interfere with
the ongoing operations of a party and its subsidiaries prior to the Effective Time, (ii) no
party or any of its subsidiaries shall be required to incur any liability under the Financing prior
to the Effective Time unless contingent upon the occurrence of the Closing and not material to
Validus and its subsidiaries (after giving effect to the Amalgamation), and (iii) IPC and
Validus shall be responsible for their respective costs and expenses incurred in connection with
such cooperation. For the avoidance of doubt no failure of any party to obtain Financing shall be
deemed to be a failure of any condition set forth in Article VI of this Agreement, except as
specifically provided by Section 6.3(f) of this Agreement.
4.3 Bermuda Required Actions. Prior to the Closing, (a) IPC shall
(i) procure that the statutory declaration required by Section 108(3) of the Companies Act
is duly sworn by one of its officers; (ii) prepare a duly certified copy of the IPC
shareholder resolutions evidencing the Required IPC Vote and deliver such documents to Validus;
and (b) Amalgamation Sub shall (and Validus, as the sole shareholder of Amalgamation Sub
shall cause Amalgamation Sub to) (i) procure that the statutory declarations required by
Section 108(3) of the Companies Act is duly sworn by one of Amalgamation Sub’s officers;
(ii) prepare a duly certified copy of the shareholder resolutions evidencing the approval
of Validus, as the sole shareholder of the Amalgamation Sub, of the Amalgamation; and
(iii) prepare a notice advising the Registrar of the registered office of the Amalgamated
Company.
ARTICLE V
(a) At IPC’s option, after consultation with Validus, IPC may elect to combine the IPC
Shareholders Meeting with IPC’s 2009 annual general meeting, and at Validus’s option, after
consultation with IPC, Validus may elect to combine the Validus Shareholders Meeting with Validus’s
2009 annual general meeting. As promptly as reasonably practicable following the date hereof, IPC
and Validus shall cooperate in preparing and each shall cause to be filed with the SEC mutually
acceptable proxy materials which shall constitute the proxy statement/prospectus relating to the
matters to be submitted to the shareholders of Validus at the Validus Shareholders Meeting and to
the IPC shareholders at the IPC Shareholders Meeting and, subject to the first sentence of this
paragraph (a), such other matters as IPC and Validus elect to submit to their respective
shareholders in the ordinary course consistent with past practice in connection with their
respective annual general meetings, including the election of directors, the receipt of audited
financial statements, the appointment of an auditor and the transaction of such other further
business, if any, as may lawfully be brought before the meeting (such proxy statement/prospectus,
proxy and any amendments or supplements thereto, the “Joint Proxy Statement/Prospectus”),
and Validus shall prepare, together with IPC, and file with the SEC a registration statement on
Form S-4 (of which the Joint Proxy Statement/Prospectus shall be a part) with respect to the
issuance of Validus Common Shares in the Amalgamation (such Form S-4, and any amendments or
supplements thereto, the “Form S-4”).
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Each of IPC and Validus shall take all actions reasonably necessary to prepare and file the
Joint Proxy Statement/Prospectus and the Form S-4 no later than 30 days following the date of
execution of this Agreement by all parties. In addition, each of IPC and Validus shall:
(i) use commercially reasonable efforts to have the Joint Proxy Statement/Prospectus
cleared by the SEC and the Form S-4 declared effective by the SEC, to keep the Form S-4
effective as long as is necessary to consummate the Amalgamation and the other transactions
contemplated hereby, and to mail the Joint Proxy Statement/Prospectus to their respective
shareholders as promptly as practicable after the Form S-4 is declared effective. IPC and
Validus shall, on the same day of receipt thereof (and if not possible, as promptly as
practicable after receipt thereof), provide the other party with copies of any written
comments and advise the other party of any oral comments with respect to the Joint Proxy
Statement/Prospectus or Form S-4 received from the SEC;
(ii) cooperate and provide the other party with a reasonable opportunity to review and
comment on any amendment or supplement to the Joint Proxy Statement/Prospectus and the Form
S-4 prior to filing such with the SEC, and each party will provide the other party with a
copy of all such filings made with the SEC. None of the information supplied or to be
supplied by Validus or IPC for inclusion or incorporation by reference in the (A)
Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes
effective under the Securities Act, 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, in light of the circumstances under which they were made, not misleading, and
(B) Joint Proxy Statement/Prospectus will, at the date of mailing to shareholders
and at the times of the meetings of shareholders to be held in connection with the
Amalgamation, contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading; provided
that, in each case of (A) and (B), neither party shall be responsible or liable for any
statements made or incorporated by reference therein based on information supplied by the
other party for inclusion or incorporation by reference therein;
(iii) cause the Joint Proxy Statement/Prospectus and the Form S-4 to comply as to form
in all material respects with the requirements of the Exchange Act and the Securities Act,
as the case may be, and the rules and regulations of the SEC thereunder, except that no
representation or warranty shall be made by either such party with respect to statements
made or incorporated by reference therein based on information supplied by the other party
for inclusion or incorporation by reference in the Joint Proxy Statement/Prospectus or Form
S-4. IPC and Validus shall make any necessary filings with respect to the Amalgamation
under the Securities Act and the Exchange Act and the rules and regulations thereunder;
(iv) use commercially reasonable efforts to take any action required to be taken under
any applicable securities Laws in connection with the Amalgamation and each party shall
furnish all information concerning it and the holders of its capital stock as may be
reasonably requested in connection with any such action;
(v) advise the other party, promptly after it receives notice thereof, of the time when
the Form S-4 has become effective, the issuance of any stop order, the suspension of the
qualification of the Validus Common Shares issuable in connection with the Amalgamation for
offering or sale in any jurisdiction, or any request by the SEC for amendment of the Joint
Proxy Statement/Prospectus or the Form S-4; and
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(vi) promptly notify the other party if at any time prior to the Effective Time it
discovers any information relating to either of the parties, or their respective affiliates,
officers or directors, which should be set forth in an amendment or supplement to any of the
Form S-4 or the Joint Proxy Statement/Prospectus so that such documents would not include
any misstatement of a material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were made, not
misleading, and an appropriate amendment or supplement describing such information shall be
promptly filed with the SEC and disseminated to the shareholders of Validus and IPC, to the
extent required by Law.
(b) Validus shall take all action necessary to call, give notice of, convene and hold a
meeting of its shareholders as promptly as practicable, and in any event within 45 days, following
the date upon which the Form S-4 becomes effective (the “Validus Shareholders Meeting”) for
the purpose of obtaining the Required Validus Vote, provided that the Validus Shareholders
Meeting shall not be held prior to the third business day immediately following the last day on
which the holders of IPC Common Shares can require appraisal of their IPC Common Shares pursuant to
the Companies Act. Subject to Section 5.4, (i) Validus shall use commercially reasonable efforts
to solicit and secure the Required Validus Vote in accordance with applicable legal requirements
and (ii) the board of directors of Validus shall include the Validus Recommendation in the Joint
Proxy Statement/Prospectus.
(c) IPC shall take all action necessary to call, give notice of, convene and hold a meeting of
its shareholders as promptly as practicable, and in any event within 45 days, following the date
upon which the Form S-4 becomes effective (the “IPC Shareholders Meeting”) for the purpose
of obtaining the Required IPC Vote, provided that the IPC Shareholders Meeting shall not be
held prior to the third business day immediately following the last day on which the holders of IPC
Common Shares can require appraisal of their IPC Common Shares pursuant to the Companies Act.
Subject to Section 5.4, (i) IPC shall use commercially reasonable efforts to solicit and
secure the Required IPC Vote in accordance with applicable legal requirements and (ii) the
board of directors of IPC shall include the IPC Recommendation in the Joint Proxy
Statement/Prospectus.
(d) Validus and IPC shall coordinate and each shall use its commercially reasonable efforts to
cause the Validus Shareholders Meeting and the IPC Shareholders Meeting to be held on the same
date.
(e) Validus and IPC may determine, after consultation with each other, that each of them shall
file separate proxy statements rather than a joint proxy statement, in which case each of the
references in this Agreement to the Joint Proxy Statement/Prospectus shall include each party’s
separate proxy statement.
(a) Upon reasonable notice, each of Validus and IPC shall (and shall cause each of its
subsidiaries to) (i) afford to the officers, employees, accountants, counsel, financial
advisors and other representatives of the other party, access, during normal business hours during
the period prior to the Effective Time, to all its properties, books, contracts, records and
officers and (ii) during such period, make available all other information concerning its
business, properties and personnel, in each case, as such other party may reasonably request.
Notwithstanding anything in this Section 5.2 or Section 5.3 to the contrary, neither party nor any
of its subsidiaries shall be required to provide access to or to disclose information where such
access or disclosure would jeopardize any legally recognized privilege applicable to such
information or violate or contravene any applicable Laws or binding agreement entered into prior to
the date of this Agreement (including any Laws relating to privacy). The parties will make
appropriate substitute disclosure arrangements under circumstances in which the restrictions of the
preceding sentence
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apply, including adopting additional specific procedures to protect the confidentiality of
certain sensitive material and to ensure compliance with applicable Law, and, if necessary,
restricting review of certain sensitive material to the receiving party’s financial advisors or
outside legal counsel. No information or knowledge obtained in any investigation pursuant to this
Section 5.2 shall affect or be deemed to modify any representation or warranty made by any party
hereunder.
(b) The parties will hold any such information in confidence and neither of the parties nor
any of their respective affiliates, directors, officers, employees, advisors, agents or other
representatives (including, without limitation, attorneys, accountants, consultants, bankers and
financial advisors) (collectively, “Representatives”) will disclose any of the information in any
manner whatsoever; provided, however, that (i) any of such information may be disclosed to
Representatives who need to know such information for the sole purpose of assisting the parties in
effecting the Amalgamation (it being understood that such Representatives shall be informed by the
party hereto that they represent of your obligations under this Section 5.2(b) and shall be
required by you to comply with all such obligations)), (ii) any of such information may be
disclosed as required by applicable law or the rules of a national securities exchange and (iii)
any other disclosure of such information may be made only with the other party’s prior written
consent. Each party hereto agrees to be responsible for any breach of this Section 5.2(b) by any
of its Representatives and, at its sole expense, to take all commercially reasonable measures
(including, but not limited to, court proceedings) to restrain its Representatives from breaching
this Section 5.2(b).
(a) Subject to the terms and conditions of this Agreement, each party will cooperate and
consult with the other party with respect to, and will use its commercially reasonable 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 this Agreement and applicable Laws to consummate the Amalgamation and the
other transactions contemplated by this Agreement as promptly as practicable after the date hereof,
including preparing and filing as promptly as practicable all documentation to effect all necessary
applications, notices, filings and other documents and to obtain as promptly as practicable all
Requisite Regulatory Approvals and all other consents, waivers, licenses, registrations, orders,
approvals, permits, rulings, requests, authorizations and clearances necessary or advisable to be
obtained from any third party or any Governmental Entity in order to consummate the Amalgamation or
any of the other transactions contemplated by this Agreement.
(b) In furtherance and not in limitation of Section 5.3(a), to the extent permissible under
applicable Laws, each party shall, in connection with the above referenced efforts to obtain all
Requisite Regulatory Approvals and any other requisite approvals, clearances and authorizations for
the transactions contemplated hereby under applicable Laws or any approval of a Governmental
Entity, use its commercially reasonable efforts to (i) supply as promptly as practicable
any additional information and documentary material that may be requested pursuant to applicable
Laws or by any Governmental Entity and to use commercially reasonable efforts to cause the
expiration or termination of the applicable waiting periods and the receipt of all such consents,
waivers, licenses, registrations, orders, approvals, permits, rulings, requests, authorizations and
clearances under applicable Laws or from such Governmental Entities as soon as practicable,
(ii) cooperate in all respects with the other party in connection with any filing or
submission and in connection with any investigation or other inquiry, including any proceeding
initiated by any private party, (iii) keep the other party apprised of the status of
matters relating to completion of the transactions contemplated hereby and promptly inform the
other party of (and upon reasonable request provide copies of) any communication received by such
party from, or given by such party to, any Governmental Entity and of any material communication
received or given in connection with any proceeding by any private party, in each case regarding
any other transactions contemplated hereby, (iv) permit the other parties, or the other
parties’ legal counsel, to review prior to its submission any
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communication given by it to any Governmental Entity or, in connection with any proceeding by any
private party, with any other person, (v) consult with the other party in advance of any
meeting, conference, conference call, discussion or communication with, any such Governmental
Entity or, in connection with any proceeding by any private party, with any other person and
(vi) to the extent permitted by such Governmental Entity or other person, give the other
party the opportunity to attend and participate in such meetings, conferences, conference calls,
discussions and communications.
(c) Notwithstanding the foregoing or anything in this Agreement to the contrary, none of IPC
(and its subsidiaries) or Validus (and its subsidiaries) may, without the prior written consent of
the other party, (i) consent to, take or agree or commit to take, any action for the purpose of
obtaining the Requisite Regulatory Approvals or (ii) consent to or agree to any restriction or
limitation for the purpose of obtaining the Requisite Regulatory Approvals (including with respect
to divesting, selling, licensing, transferring, holding separate or otherwise disposing of any
business or assets or conducting its (or its subsidiaries’) business in any specified manner), in
each case, which would be effective prior to the Effective Time or which would, after the Effective
Time, not be immaterial to Validus and its subsidiaries taken together (after giving effect to the
Amalgamation).
(d) In connection with and without limiting the foregoing, Validus and IPC shall (i)
take all reasonable actions necessary to ensure that no takeover statute or similar statute or
regulation is or becomes applicable to the Amalgamation, this Agreement, or any of the other
transactions contemplated by this Agreement and (ii) if any takeover statute or similar
statute or regulation becomes applicable to the Amalgamation, this Agreement, or any other
transaction contemplated by this Agreement, use their respective commercially reasonable efforts to
ensure that the Amalgamation and the other transactions contemplated by this Agreement may be
consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to
minimize the effect of such statute or regulation on the Amalgamation and the other transactions
contemplated by this Agreement.
(e) Subject to receipt of the Required IPC Vote, IPC shall take such actions as are necessary
to amend its bye-laws to reflect the IPC Bye-Law Amendment.
(a) The board of directors of Validus shall not withhold, withdraw, qualify or modify
(including by amendment or supplement to the Joint Proxy Statement/Prospectus), in any manner
adverse to IPC, the Validus Recommendation, or publicly propose to, or publicly announce that its
board of directors has resolved to take any such action (any of the foregoing, with respect to the
Validus Recommendation, a “Change in Validus Recommendation”). The board of directors of
IPC shall not withhold, withdraw, qualify or modify (including by amendment or supplement to the
Joint Proxy Statement/Prospectus), in any manner adverse to Validus, the IPC Recommendation, or
publicly propose to, or publicly announce that its board of directors has resolved to take any such
action (any of the foregoing, with respect to the IPC Recommendation, a “Change in IPC
Recommendation”).
(b) Notwithstanding anything in this Agreement to the contrary, at any time prior to obtaining
the Required Validus Vote, in the case of Validus, or the Required IPC Vote, in the case of IPC,
the board of directors of Validus or IPC, as the case may be, may withhold, withdraw, qualify or
modify (or publicly announce that its board of directors has resolved to take any such action) the
Validus Recommendation, in the case of Validus, or the IPC Recommendation, in the case of IPC,
other than, with respect to IPC only, in connection with an Acquisition Proposal (as defined in
Section 5.5(a)) (for the avoidance of doubt, the conditions under which IPC may make a Change of
IPC Recommendation as a result of an Acquisition Proposal are as set forth in Section 5.5), if the
board of directors of Validus or IPC, as the case may be, after consultation with its outside
counsel and financial advisors, concludes in
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good faith that such action is reasonably likely to be required in order for the relevant
directors to comply with such directors’ fiduciary duties under applicable Law; provided
that no Change in Validus Recommendation or Change in IPC Recommendation, as the case may be, may
be made unless the party seeking to make such Change in Validus Recommendation or Change in IPC
Recommendation, as the case may be, (i) has not breached in any material respect its
obligations under this Section 5.4, and (ii) has provided a written notice to the other
party advising it of its intention to make a Change in Validus Recommendation or a Change in IPC
Recommendation, as the case may be, and such other party does not, within five business days
following its receipt of such notice, agree to make adjustments in the terms and conditions of this
Agreement which obviate the need for the Change in Validus Recommendation or the Change in IPC
Recommendation, as the case may be, as determined in good faith by the board of directors of
Validus or IPC, as the case may be, after consultation with its outside legal counsel and financial
advisors (provided that, during such five business day period, the party seeking to make
such Change in Validus Recommendation or Change in IPC Recommendation, as the case may be, shall,
and shall cause its outside legal counsel and its financial advisors to, negotiate in good faith
with the other party (to the extent the other party desires to negotiate) with respect to any
proposed adjustments to the terms and conditions of this Agreement). Notwithstanding the
foregoing, nothing contained herein shall be deemed to relieve either of Validus or IPC of its
obligation(s) under Section 5.1 to submit matters to obtain the Required Validus Vote at the
Validus Shareholders Meeting or the Required IPC Vote at the IPC Shareholders Meeting, as the case
may be; provided, however, that if the board of directors of Validus (in the case
of a Change in Validus Recommendation) or IPC (in the case of a Change in IPC Recommendation) shall
have effected a Change in Validus Recommendation or a Change in IPC Recommendation, as the case may
be, then in submitting such matters to the applicable shareholders meeting, the applicable board of
directors may submit such matters without recommendation, in which event the applicable board of
directors shall communicate the basis for its lack of a recommendation to the applicable
shareholders in the Joint Proxy Statement/Prospectus or an appropriate amendment or supplement
thereto to the extent it determines after consultation with its legal counsel, that such action is
compelled by applicable Law.
(a) IPC agrees that neither it nor any of its subsidiaries nor any of the officers and
directors of it or its subsidiaries shall, and that it shall cause (and use commercially reasonable
efforts to instruct) its and its subsidiaries’ employees, agents, representatives and advisors
(including any investment banker, attorney or accountant retained by it or any of its subsidiaries)
not to, directly or indirectly:
(i) initiate, solicit, encourage or facilitate (including by providing information) any
effort or attempt to make or implement any proposal or offer with respect to, or a
transaction to effect, an amalgamation, merger, reorganization, share exchange,
consolidation, business combination, recapitalization, liquidation, dissolution or similar
transaction involving it or any of its subsidiaries or any purchase or sale of 10% or more
of the consolidated assets (including, without limitation, stock of its subsidiaries) of it
and its subsidiaries, taken as a whole, or any purchase or sale of, or tender or exchange
offer for, its voting securities that, if consummated, would result in any person (or the
shareholders of such person) beneficially owning securities representing 10% or more of its
total voting power (or of the surviving Validus entity in such transaction) or the voting
power of any of its subsidiaries (any such proposal, offer or transaction (other than a
proposal or offer made by Validus) being hereinafter referred to as an “Acquisition
Proposal”);
(ii) have, participate or otherwise engage in any discussions or negotiations with or
provide any confidential information or data to any person relating to an Acquisition
Proposal;
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(iii) approve or recommend, or propose to approve or recommend, any Acquisition
Proposal or submit to the vote of its shareholders any Acquisition Proposal prior to the
termination of this Agreement; or
(iv) approve or recommend, or propose to approve or recommend, or execute or enter
into, any letter of intent, agreement in principle, merger agreement, amalgamation
agreement, asset purchase or share exchange agreement, option agreement or other similar
agreement related to any Acquisition Proposal.
(b) IPC agrees that (i) it shall, and shall cause its subsidiaries and its and their
respective officers, directors, employees, agents, representatives and advisors to, cease
immediately and terminate any and all existing activities, discussions or negotiations with any
third parties conducted heretofore with respect to any Acquisition Proposal, and (ii) it
shall not release any third party from, or waive any provisions of, any confidentiality or
standstill agreement to which it or any of its subsidiaries is a party with respect to any
Acquisition Proposal. IPC agrees that it shall use its commercially reasonable efforts to promptly
inform its and its subsidiaries’ respective directors, officers, employees, agents, representatives
and advisors of the obligations undertaken in this Section 5.5.
(c) IPC shall promptly notify Validus of any (i) Acquisition Proposal, (ii) request for
information that could reasonably be expected to be related to an Acquisition Proposal received by
it, any of its subsidiaries or any of their respective directors, officers, employees, agents,
representatives or advisors (including any investment bankers, attorneys or accountants), and (iii)
request that could reasonably be expected to be related to an Acquisition Proposal for discussions
with or negotiations by, it, any of its subsidiaries or any of their respective directors,
officers, employees, agents, representatives or advisors (including any investment bankers,
attorneys or accountants), indicating, in connection with such notice, the identity of the person
making such Acquisition Proposal or request and the material terms and conditions thereof
(including a copy thereof and any related available documentation and correspondence), and in any
event IPC shall provide written notice to Validus of any Acquisition Proposal, request for
information or request for such discussions or negotiations within 24 hours of such event. IPC
will (A) inform the person making such Acquisition Proposal, request for information or request for
discussions or negotiations of its obligations under this Agreement and (B) keep Validus reasonably
informed on a reasonably current basis of the terms of any such Acquisition Proposal or request for
information or request for discussions or negotiations (including whether such Acquisition Proposal
or request for information or request for discussions or negotiations is withdrawn and any material
change to the terms thereof).
(d) Notwithstanding anything in this Agreement to the contrary, if, at any time prior to
obtaining the Required IPC Vote, in the case of IPC (after the expiration of the Notice Period (as
hereinafter defined)), the board of directors of IPC concludes that an unsolicited bona fide
written Acquisition Proposal that did not result from a breach of this Section 5.5 could be
reasonably likely to constitute a Superior Proposal (after giving effect to all the adjustments to
this Agreement which may be offered by Validus prior to or during the Notice Period), the board of
directors of IPC may make a Change in IPC Recommendation; provided that the board of
directors of IPC may not make a Change in IPC Recommendation unless (i) IPC has provided a
written notice to Validus (a “Notice of Superior Proposal”) advising Validus that it has
received an Acquisition Proposal that could be reasonably likely to constitute a Superior Proposal
and specifying the identity of the person making such Acquisition Proposal and the material terms
thereof (including a copy thereof and any related available documentation and correspondence) and
(ii) Validus does not, within five business days following its receipt of the Notice of
Superior Proposal (the “Notice Period”), make an offer that, as determined in good faith by
the board of directors of IPC after consultation with its outside legal counsel and financial
advisors, results in the applicable Acquisition Proposal no longer being a Superior Proposal
(provided that, during the Notice Period, IPC shall, and shall cause its outside legal
counsel and its financial advisors to, negotiate in good faith with
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Validus (to the extent Validus desires to negotiate) with respect to such proposal). The
parties understand and agree that to comply with this Section 5.5(d) any revisions to the terms of
such Superior Proposal which, individually or in the aggregate would be material when considering
such Superior Proposal in its totality, shall require IPC to deliver to Validus a new Notice of
Superior Proposal and the commencement of a new Notice Period.
(e) Nothing contained in this Section 5.5 shall prohibit IPC, from (i) complying with
Rule 14d-9 or 14e-2 promulgated under the Exchange Act to the extent applicable with regard to an
Acquisition Proposal (provided that, in the case of an Acquisition Proposal made by way of
a tender offer or exchange offer, any failure by IPC or its board of directors to recommend that
the shareholders of IPC reject such offer within the time period specified in Rule 14e-2(a) shall
be deemed to be a Change in IPC Recommendation), or making any legally required disclosure to its
shareholders with regard to an Acquisition Proposal (provided that any disclosure (other
than a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f)
under the Exchange Act) made pursuant to Rule 14d-9 or 14e-2(a) shall be deemed to be a Change in
IPC Recommendation unless the board of directors of IPC expressly reaffirms its recommendation to
its shareholders in favor of approval of this Agreement and the transactions contemplated hereby)
or (ii) informing any person of the existence of the provisions contained in this Section
5.5.
(f) “Superior Proposal” means a bona fide unsolicited written Acquisition Proposal
from any person (other than Validus or its subsidiaries) that did not result from a breach by IPC
of this Section 5.5, which the board of directors of IPC concludes in good faith, after
consultation with its outside legal counsel and its financial advisors, taking into account the
legal, financial, regulatory, timing and other aspects of the Acquisition Proposal and the person
making the Acquisition Proposal (including any break-up fees, expense reimbursement provisions and
conditions to consummation) is in the long-term best interests of IPC including its shareholders,
employees, communities and other stakeholders, taking into account the long-term strategic
prospects and other benefits of the transactions contemplated by this Agreement, and (i) is
more favorable to IPC, its shareholders and other constituencies than the transactions contemplated
by this Agreement (after giving effect to all adjustments to this Agreement which may be offered by
Validus under Section 5.5(d) in response to such Acquisition Proposal), (ii) is fully
financed or reasonably capable of being fully financed, reasonably likely to receive all required
governmental approvals and otherwise reasonably capable of being completed on the terms proposed
and (iii) that could be reasonably likely to require the board of directors of IPC to make
a Change in IPC Recommendation in order to comply with its directors’ fiduciary duties under
applicable Law; provided that, for purposes of this definition of “Superior Proposal,” the
term “Acquisition Proposal” shall have the meaning assigned to such term in Section 5.5(a)(i),
except that the reference to “10% or more of its voting power or the voting power of any of its
subsidiaries” in the definition of “Acquisition Proposal” shall be deemed to be a reference to “50%
or more of its total voting power or the voting power of any of its subsidiaries” and the reference
to “10% or more of the consolidated assets” in the definition of “Acquisition Proposal” shall be
deemed to be a reference to “all or substantially all of the consolidated assets.”
5.6 Section 16 Matters. Prior to the Effective Time, each of Validus and IPC shall
use its commercially reasonable efforts to cause to be exempt under Rule 16b -3 promulgated under
the Exchange Act any dispositions of IPC Common Shares or acquisitions of Validus Common Shares
(including, in each case, derivative securities) resulting from the transactions contemplated
hereby by each director or officer of IPC who is subject to the reporting requirements of Section
16(a) of the Exchange Act with respect to IPC.
5.7 Fees and Expenses. Whether or not the Amalgamation is consummated, all costs and
expenses incurred in connection with this Agreement and the transactions contemplated hereby shall
be paid by the party incurring such expense, except as otherwise provided herein, and except that
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expenses incurred in connection with filing, printing and mailing the Joint Proxy
Statement/Prospectus and the Form S-4 shall be shared equally by IPC and Validus.
(a) From and after the Effective Time, Validus shall cause the Amalgamated Company to, to the
fullest extent permitted by applicable Law (and, in the case of former officers and directors, to
the extent permitted by the bye-laws of IPC and the Amalgamated Company prior to the Closing),
indemnify, defend and hold harmless, and provide advancement of expenses to, each person who is
now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, a
director or officer of IPC (the “Indemnified Parties”) against all losses, claims, damages,
costs, expenses, liabilities or judgments or amounts that are paid in settlement of or in
connection with any claim, action, suit, proceeding or investigation based in whole or in part on
or arising in whole or in part out of the fact that such person is or was a director or officer of
IPC or any of its respective subsidiaries, and pertaining to any matter existing or occurring, or
any acts or omissions occurring, at or prior to the Effective Time, whether asserted or claimed
prior to, at or after, the Effective Time (including matters, acts or omissions occurring in
connection with the approval of this Agreement and the consummation of the transactions
contemplated hereby) to the same extent such persons are indemnified or have the right to
advancement of expenses as of the date of this Agreement by IPC or any of its respective
subsidiaries pursuant to the relevant entity’s memorandum of association, bye-laws and
indemnification agreements and resolutions, if any, in existence on the date hereof.
(b) For a period of six years after the Effective Time, Validus shall purchase as of the
Effective Time, a tail policy to the existing directors’ and officers’ liability insurance
maintained by IPC with respect to claims arising from facts or events which occurred at or before
the Effective Time, and which tail policy shall contain substantially the same coverage and amounts
as, and contain terms and conditions no less advantageous than the coverage provided by the
existing policy of IPC as of the date of this Agreement; provided, however, that in
no event shall Validus be required to expend for the entire tail policy, in excess of 350% of the
annual premium currently provided by IPC for its existing policy of directors’ and officers’
liability insurance; and provided further that, if the premium of such insurance
coverage exceeds such amount, Validus shall be obliged to obtain a policy with the greatest
coverage available for a cost not to exceed such amount. At the request of Validus, IPC shall
cooperate with Validus to obtain such a tail policy effective as of the Effective Time.
(c) In the event that Validus or the Amalgamated Company or any of its successors or assigns
(i) consolidates or amalgamates with or merges into any other person and is not the continuing or
surviving corporation or entity of such consolidation or amalgamation or (ii) transfers or conveys
all or substantially all of its properties and assets to any person (including by dissolution),
then, and in each such case, Validus shall cause proper provision to be made so that the successors
and assigns of Validus or the Amalgamated Company assume and honor the obligations set forth in
this Section 5.8.
(d) [Reserved].
(e) The provisions of this Section 5.8: (i) are intended to be for the benefit of, and
shall be enforceable by, each Indemnified Party, his or her heirs and legal representatives and
(ii) are in addition to, and not in substitution for, any other rights to indemnification
or contribution that any such person may have by contract or otherwise.
5.9 Public Announcements. The press release to be issued after the execution of this
Agreement by all parties regarding the Amalgamation shall be a joint press release and thereafter
each of Validus and IPC shall, except as may be required by applicable Law or by obligations
pursuant to any
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listing agreement with or rules of NASDAQ or the NYSE, as applicable, or by request of any
Governmental Entity, consult with the other party before issuing any press release or otherwise
making any public statement with respect to this Agreement or the transactions contemplated
hereby; provided, however, that this consultation obligation shall not apply to
any press release or other public statement relating to any actual or contemplated litigation
between the parties to this Agreement.
5.10 Additional Agreements. In case any further action is necessary or desirable to
carry out the purposes of this Agreement or to vest the Amalgamated Company with full title to all
properties, assets, rights, approvals, permits, authorizations, immunities and franchises of IPC
and its subsidiaries, the parties shall use commercially reasonable efforts to cause their
respective officers and directors to take all such necessary action.
5.11 Shareholder Litigation. IPC shall give Validus the reasonable opportunity to
participate in the defense of any shareholder litigation against IPC or its directors or officers
relating to this Agreement and the transactions contemplated hereby.
5.12 Employee Benefits.
(a) [Reserved].
(b) As of the Closing Date, Validus shall, or shall cause one of its subsidiaries to, continue
to employ each person employed by Validus or IPC or any of their respective subsidiaries as of the
Closing Date (such employees, collectively, the “Employees”). Except as expressly provided
below, nothing contained herein shall restrict Validus in the future in the exercise of its
independent, good-faith business judgment as to the terms and conditions under which such
employment shall continue, the duration of such employment, the basis on which such employment is
terminated or the benefits provided to any Employee.
(c) For a period of not less than one year following the Closing Date, Validus shall (or shall
cause its subsidiaries to) make available to the Employees that immediately prior to the Closing
were employed by IPC, employee benefits and compensation opportunities (including salary, wages and
bonus opportunity) substantially comparable in the aggregate to the employee benefits and
compensation opportunities in effect for IPC employees immediately prior to the Closing.
(d) Validus and its subsidiaries shall ensure that any Compensation and Benefit Plan in which
the Employees are eligible to participate after the Closing Date shall take into account for
purposes of eligibility and vesting thereunder, except for purposes of qualifying for subsidized
early retirement benefits or to the extent it would result in a duplication of benefits, service by
the Employees with IPC and any of its subsidiaries prior to the Closing Date, to the same extent
such service was credited prior to the Closing Date under a comparable Compensation and Benefit
Plan of IPC.
(e) From and after the Closing Date, Validus shall honor all IPC Benefit Plans, in accordance
with their terms as in effect immediately before the Closing Date; provided that nothing
herein shall limit the right of Validus to amend or terminate any such plan in accordance with its
terms.
(f) Notwithstanding the foregoing, nothing herein shall (i) be treated as an amendment of any
Compensation and Benefit Plan or (ii) give any third party any right to enforce the provisions of
this Section 5.12.
5.13 Listing and Delisting; Reservation for Issuance. Validus shall use its
commercially reasonable efforts to cause all the following shares to be approved for listing and
quotation on the NYSE, subject to official notice of issuance, no later than the Closing Date: (i) all
Validus
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NYSE, subject to official notice of issuance, no later than the Closing Date: (i) all
Validus Common Shares to be issued in the Amalgamation to IPC shareholders and (ii) all
Validus Common Shares to be reserved for issuance upon exercise or vesting of the IPC Share
Options or IPC Other Awards (collectively, the “Listed Validus Common Shares”). Validus
shall take all action necessary to reserve for issuance, prior to the Closing Date, any Listed
Validus Common Shares that, by their terms and in accordance with this Agreement, will not be
issued until after the Effective Time. Validus shall use its commercially reasonable efforts to
cause the IPC Common Shares to no longer be listed or quoted on NASDAQ and to be deregistered
under the Exchange Act as soon as practicable following the Effective Time.
5.14 Dividends. IPC and Validus shall coordinate the declaration, setting of record
dates and payment dates of dividends of IPC Common Shares and Validus Common Shares so that
holders of IPC Common Shares do not receive dividends on both IPC Common Shares and the Validus
Common Shares received in the Amalgamation in respect of any calendar quarter or fail to receive a
dividend on either the IPC Common Shares or the Validus Common Shares received in the Amalgamation
in respect of any calendar quarter. For the avoidance of doubt, the purpose of this Section 5.14
is to ensure that the holders of the Validus Common Shares and IPC Common Shares each receive the
same number of quarterly dividends after execution of this Agreement and prior to the Effective
Time with respect to such shares.
5.15 Tax Treatment.
(a) The parties intend the Amalgamation to qualify as a reorganization within the meaning of
Section 368(a) of the Code and to obtain the opinions described in Sections 6.2(e) and 6.3(e) of
this Agreement. Each of IPC, Amalgamation Sub and Validus and each of their respective affiliates
shall use commercially reasonable efforts to cause the Amalgamation to so qualify and to obtain
such opinions, and unless otherwise required by applicable Law or by any other provision of this
Agreement, shall not take any actions, or cause any actions to be taken, which would reasonably be
expected to cause the Amalgamation to fail so to qualify or the opinions to fail to be delivered.
(b) Validus shall cause (i) Amalgamation Sub to file with the United States Internal Revenue
Service a properly completed Form 8832, so as to elect to be treated as a disregarded entity for
U.S. federal tax purposes effective at least one day prior to the Closing Date, and (ii) the
Amalgamated Company to file, after the Closing Date, with the United States Internal Revenue
Service a properly completed Form 8832, so as to cause it to be treated for U.S. federal tax
purposes as a disregarded entity effective as of the Closing Date.
5.16 Book Value Calculations.
(a) On the first business day after the date of its shareholder meeting held pursuant to
Section 5.1, unless this Agreement is earlier terminated pursuant to Section 7.1, either Validus or
IPC (the “Requesting Party”) may request, by providing notice in writing delivered to the
other party (the “Non-Requesting Party”), that the Non-Requesting Party prepare an estimate
of the Non-Requesting Party’s book value as of the date that is one (1) business day prior to such
shareholder meeting (such date, the “Measurement Date,” and such estimate of book value, a
“Book Value Estimate”).
(b) If a Requesting Party makes a request pursuant to Section 5.16(a), then both the
Requesting Party and the Non-Requesting Party shall each promptly, and in any event within five (5)
calendar days, prepare Book Value Estimates and provide such Book Value Estimates, together with
reasonable supporting analysis, to each other. If the Requesting Party fails to provide such Book
Value Estimate within such five (5) calendar day period, then the Requesting Party shall have no
further rights under this
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Section 5.16 or Sections 7.1(h) or 7.1(i), as the case may be. For the avoidance of doubt,
the parties hereby agree that, if either party requests a Book Value Estimate, the Closing Date
shall not occur until the agreements and covenants set forth in this Section 5.16 have been
satisfied or waived.
(c) From and after the time that the Book Value Estimates have both been delivered, each party
shall have five (5) calendar days to review the other party’s Book Value Estimate and supporting
analysis and such other information as the party may reasonably request in connection with its
review of the other party’s Book Value Estimate. The parties understand and agree that no reserve
development occurring from and after the Measurement Date shall increase or reduce either party’s
Book Value Estimate.
(d) If either party’s Book Value Estimate indicates that such party has experienced a decline
in book value of more than 50% from December 31, 2008 to the Measurement Date (a “50% Book
Value Decline”), then the other party shall have the right to terminate this Agreement pursuant
to and in accordance with Section 7.1(h) or Section 7.1(i), as appropriate.
(e) If the parties’ Book Value Estimates indicate that the percentage decline in either
party’s book value from December 31, 2008 to the Measurement Date is more than 20 percentage points
greater than the percentage decline of the other party’s book value from December 31, 2008 to the
Measurement Date (a “20% Differential Book Value Decline”), then the party with the lesser
decline in book value over such period shall have the right to terminate this Agreement pursuant to
and in accordance with Section 7.1(h) or Section 7.1(i), as appropriate; provided that, for
purposes of measuring the 20% Differential Book Value Decline, if any, the book value of any party
that has experienced an increase in book value from December 31, 2008 to the Measurement Date shall
be deemed to have experienced no change in its book value.
(f) If, after complying with this Section 5.16, neither party has experienced a 50% Book Value
Decline or a 20% Differential Book Value Decline, then (i) in accordance with the terms this
Agreement, each party shall cooperate and consult with the other party with respect to, and will
use its commercially reasonable 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 this Agreement and applicable
Laws to consummate the Amalgamation and the other transactions contemplated by this Agreement as
promptly as practicable and (ii) if all other conditions to Closing set forth in Article VI
(excluding conditions that, by their terms, are to be satisfied on the Closing Date) have been
satisfied or waived as of the third business day after the condition in Section 6.1(a) was
satisfied, then notwithstanding the provisions of Section 6.2(a) or Section 6.3(a) (as the case may
be) or any other provision of this Agreement, no representations or warranties of the
Non-Requesting Party set forth in this Agreement need be true and correct as of any date after the
third business day after the date on which the condition in Section 6.1(a) was satisfied and any
certificate of the Non-Requesting Party delivered pursuant to Section 6.2(c) or Section 6.3(c) (as
the case may be) shall reflect the foregoing.
ARTICLE VI
6.1 Conditions to Each Party’s Obligation to Effect the Amalgamation. The respective
obligation of each party to effect the Amalgamation shall be subject to the satisfaction prior to
the Closing of the following conditions, unless waived by both IPC and Validus:
(a) Shareholder Approval. Validus shall have obtained the Required Validus
Vote, and IPC shall have obtained the Required IPC Vote.
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(b) NYSE Listing. The Listed Validus Common Shares shall have been authorized
for listing on NYSE, subject to official notice of issuance.
(c) Requisite Regulatory Approvals. The authorizations, consents, orders or
approvals of, or declarations or filings with, and the expirations of waiting periods
required from, any Governmental Entity set forth in Section 6.1(c) of the Validus Disclosure
Letter and Section 6.1(c) of the IPC Disclosure Letter, to the extent required, shall have
been filed, have occurred or been obtained (all such permits, approvals, filings and
consents and the lapse of all such waiting periods being referred to as the “Requisite
Regulatory Approvals”).
(d) Form S-4. The Form S-4 shall have become effective under the Securities
Act and shall not be the subject of any stop order or proceedings seeking a stop order.
(e) No Injunctions or Restraints; Illegality. No temporary restraining order,
preliminary or permanent injunction or other order issued by any court of competent
jurisdiction preventing the consummation of the Amalgamation shall be in effect. There
shall not be any action taken, or any Law enacted, entered, enforced or made applicable to
the Amalgamation, by any Governmental Entity of competent jurisdiction that makes the
consummation of the Amalgamation illegal or otherwise restrains, enjoins or prohibits the
Amalgamation.
6.2 Conditions to Obligation of IPC. The obligation of IPC to effect the
Amalgamation is subject to the satisfaction of the following conditions unless waived by IPC:
(a) Representations and Warranties. (i) The representations and
warranties of Validus set forth in Section 3.8 shall be true and correct in all respects as
of the date hereof and the Closing Date as though made on and as of the Closing Date,
(ii) the representations and warranties of Validus (and Amalgamation Sub, as
applicable) set forth in Sections 3.2, 3.3(a), 3.9(b) (other than in the case of a Change in
Validus Recommendation pursuant to Section 5.4(b)), 3.10(a) and 3.22 shall be true and
correct in all material respects as of the date hereof and the Closing Date as though made
on and as of the Closing Date (except for such representations and warranties made only as
of a specified date, which shall be true and correct in all material respects as of such
date) and (iii) each of the other representations and warranties of Validus set
forth in ARTICLE III of this Agreement shall be true and correct in all respects as of the
date hereof and the Closing Date as though made on and as of the Closing Date (except for
such representations and warranties made only as of a specified date, which shall be true
and correct as of such date), except where the failure of any such representations and
warranties to be true and correct (without giving effect to any “materiality” or “Material
Adverse Effect” or similar qualifier set forth therein) has not had and would not be
reasonably expected to have, individually or in the aggregate, a Material Adverse Effect on
Validus.
(b) Performance of Obligations of Validus. Validus shall have performed or
complied in all respects with all agreements and covenants required to be performed by it
under this Agreement at or prior to the Closing Date that are qualified as to materiality or
Material Adverse Effect, and shall have performed or complied in all material respects with
all other obligations required to be performed by it under this Agreement at or prior to the
Closing Date.
(c) Certification. IPC shall have received a certificate signed on behalf of
Validus by the Chief Executive Officer or the Chief Financial Officer of Validus, certifying
that the conditions set forth in Section 6.2(a) and Section 6.2(b) have been satisfied.
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(d) Burdensome Regulatory Condition. There shall not be any action taken, or
any Law enacted, entered, enforced or deemed applicable to the Amalgamation or the
transactions contemplated by this Agreement by any Governmental Entity of competent
jurisdiction (including any Requisite Regulatory Approval), which imposes any term,
condition, obligation or restriction upon Validus, the Amalgamated Company or their
respective subsidiaries that would, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect on Validus and its subsidiaries (including the Amalgamated
Company and its subsidiaries) on a consolidated basis after the Effective Time.
(e) Opinion of Tax Counsel. IPC shall have received an opinion from Xxxxxxxx &
Xxxxxxxx LLP, special counsel to IPC, dated the Closing Date, to the effect that, on the
basis of the facts, representations and assumptions set forth or referred to in such
opinion, (i) the Amalgamation will be treated for U.S. federal income tax purposes
as a reorganization within the meaning of Section 368(a) of the Code, (ii) each of
IPC and Validus will be a party to that reorganization within the meaning of Section 368(b)
of the Code and (iii) IPC will be treated, in respect of any shareholder who will
own after the Amalgamation less than five percent of the issued IPC Common Shares (as
determined under Treasury Regulations Section 1.367(a)-3(b)(1)(i)), as a corporation under
Section 367(a) of the Code with respect to each transfer of property thereto pursuant to the
Amalgamation. In rendering its opinion, Xxxxxxxx & Xxxxxxxx LLP may require and rely upon
representations contained in letters from each of IPC and Validus.
6.3 Conditions to Obligation of Validus. The obligation of Validus to effect the
Amalgamation is subject to the satisfaction of the following conditions unless waived by Validus:
(a) Representations and Warranties. (i) The representations and warranties of
IPC set forth in Section 3.8 shall be true and correct in all respects as of the date hereof
and the Closing Date as though made on and as of the Closing Date, (ii) the
representations and warranties of IPC set forth in Sections 3.2, 3.3(a), 3.9(a) (other than
in the case of a Change in IPC Recommendation pursuant to Section 5.4(b)), 3.10(b) and 3.22
shall be true and correct in all material respects as of the date hereof and the Closing
Date as though made on and as of the Closing Date (except for such representations and
warranties made only as of a specified date, which shall be true and correct in all material
respects as of such date) and (iii) each of the other representations and warranties of IPC
set forth in ARTICLE III of this Agreement shall be true and correct in all respects as of
the date hereof and the Closing Date as though made on and as of the Closing Date (except
for such representations and warranties made only as of a specified date, which shall be
true and correct as of such date), except where the failure of any such representations and
warranties to be true and correct (without giving effect to any “materiality” or “Material
Adverse Effect” or similar qualifier set forth therein) has not had, and would not
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect
on IPC.
(b) Performance of Obligations of IPC. IPC shall have performed or complied in
all respects with all agreements and covenants required to be performed by it under this
Agreement at or prior to the Closing Date that are qualified as to materiality or Material
Adverse Effect, and shall have performed or complied in all material respects with all other
obligations required to be performed by it under this Agreement at or prior to the Closing
Date.
(c) Certification. Validus shall have received a certificate signed on behalf
of IPC by the Chief Executive Officer or the Chief Financial Officer of IPC, certifying that
the conditions set forth in Section 6.3(a) and Section 6.3(b) have been satisfied.
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(d) Burdensome Regulatory Condition. There shall not be any action taken, or
any Law enacted, entered, enforced or deemed applicable to the Amalgamation or the
transactions contemplated by this Agreement by any Governmental Entity of competent
jurisdiction (including any Requisite Regulatory Approval), which imposes any term,
condition, obligation or restriction upon Validus, the Amalgamated Company or their
respective subsidiaries that would, individually or the aggregate, reasonably be expected to
have a Material Adverse Effect on Validus and its subsidiaries (including the Amalgamated
Company and its subsidiaries) on a consolidated basis after the Effective Time.
(e) Opinion of Tax Counsel. Validus shall have received an opinion from Xxxxxx
Xxxxxx & Xxxxxxx LLP, special counsel to Validus, dated the Closing Date, to the effect
that, on the basis of the facts, representations and assumptions set forth or referred to in
such opinion, (i) the Amalgamation will be treated for U.S. federal income tax
purposes as a reorganization within the meaning of Section 368(a) of the Code, (ii)
each of IPC and Validus will be a party to that reorganization within the meaning of Section
368(b) of the Code and (iii) IPC will be treated, in respect of any shareholder who
will own after the Amalgamation less than five percent of the issued IPC Common Shares (as
determined under Treasury Regulations Section 1.367(a)-3(b)(1)(i)), as a corporation under
Section 367(a) of the Code with respect to each transfer of property thereto pursuant to the
Amalgamation. In rendering its opinion, Xxxxxx Xxxxxx & Xxxxxxx LLP may require and rely
upon representations contained in letters from each of IPC and Validus.
(f) Credit Facility Waivers. All amendments or waivers under (x) IPC’s credit
facilities and (y) Validus’ credit facilities, in each case, as determined by Validus to be
necessary to consummate the Amalgamation and the other transactions contemplated hereby,
shall be in full force and effect.
ARTICLE VII
7.1 Termination. This Agreement may be terminated, at any time prior to the
Effective Time, by action taken or authorized by the board of directors of the terminating party
or parties, whether before or after any Required Shareholder Vote has been obtained only:
(a) by mutual consent of IPC, Amalgamation Sub and Validus in a written instrument;
(b) by either IPC or Validus, upon written notice to the other party, if a Governmental
Entity of competent jurisdiction that must grant a Requisite Regulatory Approval has denied
such Requisite Regulatory Approval and such denial has become final and non-appealable; or
any Governmental Entity of competent jurisdiction shall have issued an order, judgment,
decision, decree or ruling or taken any other action permanently restraining, enjoining or
otherwise prohibiting the Amalgamation, and such order, decree, ruling or other action has
become final and non-appealable; provided that the right to terminate this Agreement
under this Section 7.1(b) shall not be available to any party whose failure to comply in any
material respect with Section 5.3 or any other provision of this Agreement has been the
direct cause of, or resulted directly in, such action;
(c) by either IPC or Validus, upon written notice to the other party, if the
Amalgamation shall not have been consummated on or before the later of (x) November 30, 2009
or (y) the date that is five months after the date of execution of this Agreement by all
parties; provided that the right to terminate this Agreement under this Section
7.1(c) shall not be available to any party
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whose failure to comply in any material respect with any provision of this Agreement
has been the direct cause of, or resulted directly in, the failure of the Effective Time to
occur on or before such date;
(d) by IPC or Validus, upon written notice to the other party, if the non-terminating
party’s board of directors shall have (i) effected a Change in Validus
Recommendation or Change in IPC Recommendation, as the case may be (including by amending or
supplementing the Joint Proxy Statement/Prospectus to effect a Change in Validus
Recommendation or Change in IPC Recommendation, as the case may be), (ii) failed to
include the Validus Recommendation or IPC Recommendation, as the case may be, in the Joint
Proxy Statement/Prospectus in accordance with Section 5.1(b) or 5.1(c), or (iii)
with respect to IPC only, materially breached its obligations under Section 5.5(a)(iii)
or 5.5(d);
or 5.5(d);
(e) by either IPC or Validus if the terminating party is not in material breach of its
obligations under this Agreement, upon written notice to the other party, if there shall
have been a breach by the other party of any of the covenants or agreements or any of the
representations or warranties set forth in this Agreement on the part of such other party,
which breach would, individually or in the aggregate, result in, if occurring or continuing
on the Closing Date, the failure of the conditions set forth in Section 6.2(a) or 6.2(b) or
Section 6.3(a) or 6.3(b), as the case may be, and which breach has not been cured within 45
days following written notice thereof to the breaching party or, by its nature, cannot be
cured within such time period;
(f) by either IPC or Validus, if the Required IPC Vote or Required Validus Vote shall
not have been obtained upon a vote taken thereon at the duly convened IPC Shareholders
Meeting or Validus Shareholders Meeting, as the case may be, or any adjournment or
postponement thereof at which the applicable vote was taken;
(g) by Validus, if the total number of Dissenting Shares exceeds 15% of the issued and
outstanding IPC Common Shares on the business day immediately following the last day on
which the holders of IPC Common Shares can require appraisal of their IPC Common Shares
pursuant to Bermuda Law;
(h) by IPC, after the IPC Shareholders Meeting, if (i) IPC is a Requesting
Party and (ii) it is determined, in accordance with Section 5.16, that (A)
Validus has experienced a 50% Book Value Decline or (B) there is a 20% Differential
Book Value Decline and Validus’s book value has declined by a greater percentage than IPC’s
book value; or
(i) by Validus, after the Validus Shareholders Meeting, if (i) Validus is a
Requesting Party and (ii) it is determined, in accordance with Section 5.16, that
(A) IPC has experienced a 50% Book Value Decline or (B) there is a 20%
Differential Book Value Decline and IPC’s book value has declined by a greater percentage
than Validus’s book value.
(a) In the event of termination of this Agreement by either Validus or IPC as provided in
Section 7.1, this Agreement shall forthwith become void, and there shall be no liability or
obligation on the part of IPC, Amalgamation Sub or Validus or their respective officers or
directors under or arising from this Agreement, except with respect to Section 5.2(b)
(Confidentiality), Section 5.7 (Fees and Expenses), this Section 7.2 (Effect of Termination), and
ARTICLE VIII (General Provisions), which shall survive such termination, except that no party shall
be relieved or released from any liabilities or damages arising out of its willful breach of this
Agreement.
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(b) If IPC or Validus, as the case may be, terminates this Agreement pursuant to Section
7.1(d), then the non-terminating party shall, as promptly as reasonably practicable (and, in any
event, within three business days following such termination), pay to the terminating party, by
wire transfer of immediately available funds, $16,000,000 (the “Termination Fee”).
(c) If either party terminates this Agreement pursuant to Section 7.1(c), and (i)
prior to the later of (x) November 30, 2009 or (y) the date that is five months after the date of
execution of this Agreement by all parties, an Acquisition Proposal (which for the purposes of this
Section 7.2(c) shall apply to an Acquisition Proposal for either IPC or Validus) shall have been
publicly announced or otherwise communicated to the officers of the non-terminating party or its
board of directors, and (ii) within 12 months of the date of such termination of this
Agreement, the non-terminating party enters into or consummates an Acquisition Transaction with the
person (or its affiliate) that made such Acquisition Proposal, then the non-terminating party shall
pay to the terminating party upon the earlier of the date of such execution or such consummation,
by wire transfer of immediately available funds, the Termination Fee.
(d) If either party terminates this Agreement pursuant to Section 7.1(e) and (i) at any time
after the date of this Agreement and at or before the date of the Validus Shareholders Meeting (if
Validus is the non-terminating party) or the IPC Shareholders Meeting (if IPC is the
non-terminating party), as the case may be, an Acquisition Proposal (which for the purposes of this
Section 7.2(d) shall apply to an Acquisition Proposal for either IPC or Validus) shall have been
publicly announced or otherwise communicated to the officers of the non-terminating party or its
board of directors, and (ii) within 12 months of the date of such termination of this Agreement,
the non-terminating party enters into or consummates an Acquisition Transaction with the person (or
its affiliate) that made such Acquisition Proposal, then the non-terminating party shall pay to the
terminating party upon the earlier of the date of such execution or such consummation, by wire
transfer of immediately available funds, the Termination Fee.
(e) If IPC or Validus, as the case may be, terminates this Agreement pursuant to Section
7.1(f) because the Required Validus Vote has not been obtained (and, if IPC is the terminating
party, the Required IPC Vote has not been taken yet or has already been obtained), and if
(i) at any time on or after the date of this Agreement and at or before the date of the
Validus Shareholders Meeting, an Acquisition Proposal (which for the purposes of this Section
7.2(e) shall apply to an Acquisition Proposal for Validus) shall have been publicly announced or
otherwise communicated to the officers of Validus or Validus’s board of directors, and (ii)
within 12 months of the date of such termination of this Agreement, Validus or any of its
subsidiaries enters into or consummates an Acquisition Transaction with the person (or its
affiliate) that made such Acquisition Proposal, then Validus shall pay the Termination Fee to IPC
upon the earlier of the date of such execution or such consummation.
(f) If IPC or Validus, as the case may be, terminates this Agreement pursuant to Section
7.1(f) because the Required IPC Vote has not been obtained (and, if Validus is the terminating
party, the Required Validus Vote has not been taken yet or has already been obtained) and (i) at
any time on or after the date of this Agreement and at or before the date of the IPC Shareholders
Meeting, an Acquisition Proposal (which for the purposes of this Section 7.2(f) shall apply to an
Acquisition Proposal for IPC) is publicly announced or otherwise communicated to the officers of
IPC or IPC’s board of directors, and (ii) within 12 months of the date of such termination
of this Agreement, IPC or any of its subsidiaries enters into or consummates an Acquisition
Transaction with the person (or its affiliate) that made such Acquisition Proposal, then IPC shall
pay the Termination Fee to Validus upon the earlier of the date of such execution or such
consummation.
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ARTICLE VIII
8.1 Non-Survival of Representations, Warranties and Agreements. Except for Section
5.8 and any provision of this ARTICLE VIII to the extent it is related to a claim under Section
5.8, none of the representations, warranties, covenants and agreements in this Agreement or in any
instrument delivered pursuant to this Agreement, including any rights arising out of any breach of
such representations, warranties, covenants, and agreements, shall survive the Effective Time,
except for those covenants and agreements contained herein and therein that by their terms apply
or are to be performed in whole or in part after the Effective Time.
8.2 Notices. All notices and other communications hereunder shall be in writing and
shall be deemed duly given (a) on the date of delivery if delivered personally, or by
email, telecopy or facsimile, upon confirmation of receipt, (b) on the first business day
following the date of dispatch if delivered by a recognized next-day courier service, or
(c) on the third business day following the date of mailing if delivered by registered or
certified mail, return receipt requested, postage prepaid. All notices hereunder shall be
delivered as set forth below or pursuant to such other instructions as may be designated in
writing by the party to receive such notice.
(a) If to IPC, to
IPC Holdings, Ltd.
00 Xxxxxxxx Xxxx
Xxxxxxxx XX 00
Xxxxxxx
Xxxxxxxxx: Xxxxx X. Xxxxx
Xxxx X. Xxxxx
Facsimile: x0 (000) 000-0000
00 Xxxxxxxx Xxxx
Xxxxxxxx XX 00
Xxxxxxx
Xxxxxxxxx: Xxxxx X. Xxxxx
Xxxx X. Xxxxx
Facsimile: x0 (000) 000-0000
with a copy to (which shall not constitute notice):
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Xxxxxxx Xxxxxx, Esq.
Facsimile: x0 (000) 000-0000
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Xxxxxxx Xxxxxx, Esq.
Facsimile: x0 (000) 000-0000
(b) If to Validus, to
Validus Holdings Ltd.
00 Xxx-Xx-Xxxxx Xxxx
Xxxxxxxx, XX 00
Xxxxxxx
Xxxxxxxxx: C. Xxxxxx Xxxx
Xxxxxx X. (Xxxx) Xxxxxxxxx
Facsimile: x0 (000) 000-0000
00 Xxx-Xx-Xxxxx Xxxx
Xxxxxxxx, XX 00
Xxxxxxx
Xxxxxxxxx: C. Xxxxxx Xxxx
Xxxxxx X. (Xxxx) Xxxxxxxxx
Facsimile: x0 (000) 000-0000
with a copy to (which shall not constitute notice):
-00-
Xxxxxx Xxxxxx & Xxxxxxx LLP
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx, Esq.
Facsimile: x0 (000) 000-0000
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx, Esq.
Facsimile: x0 (000) 000-0000
8.3 Interpretation. When a reference is made in this Agreement to sections or
subsections, such reference shall be to a section or subsection of this Agreement unless otherwise
indicated. The table of contents and headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be
deemed to be followed by the words “without limitation.” The words “herein,” “hereof,”
“hereunder” and words of similar import shall be deemed to refer to this Agreement as a whole,
including the schedules and exhibits hereto, and not to any particular provision of this
Agreement. Any pronoun shall include the corresponding masculine, feminine and neuter forms.
References to “party” or “parties” in this Agreement mean IPC, Amalgamation Sub and/or Validus, as
the case may be. References to “person” in this Agreement mean an individual, a company, a
corporation, a limited liability company, a partnership, an association, a trust or any other
entity or organization, including a government or political subdivision or any agency or
instrumentality thereof. References to “subsidiary” in this Agreement means, as to any person,
any other person of which more than 50% of the effective voting power or equity or other ownership
interests is directly or indirectly owned by such person. References to “affiliate” in this
Agreement means, as to any person, any other person which, directly or indirectly, controls, or is
controlled by, or is under common control with, such person. As used in this Agreement, “control”
(including, with its correlative meanings, “controlled by” and “under common control with”) means
the possession, directly or indirectly, of the power to direct or cause the direction of
management or policies of a person, whether through the ownership of securities or partnership or
other ownership interests, by contract or otherwise. As used in this Agreement, “knowledge” means
the actual knowledge, without due inquiry, of the officers of Validus set forth in Section 8.3 of
the Validus Disclosure Letter or the officers of IPC set forth in Section 8.3 of the IPC
Disclosure Letter, as the case may be. References to “US dollar,” “dollars,” “US$” or “$” in this
Agreement are to the lawful currency of the United States of America. As used in this Agreement,
“business day” means any day other than a Saturday, Sunday or other day on which banking
institutions in New York or Bermuda are obligated by Law or executive order to be closed.
8.4 Counterparts. This Agreement may be executed in separate counterparts, each of
which shall be considered one and the same agreement and shall become effective when each of the
parties has delivered a signed counterpart to the other parties, it being understood that all
parties need not sign the same counterpart. Such counterpart executions may be transmitted to the
parties by facsimile or electronic transmission, which shall have the full force and effect of an
original signature.
8.5 Entire Agreement; No Third Party Beneficiaries. This Agreement (including the
Validus Disclosure Letter and the IPC Disclosure Letter) (a) constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and oral, between the parties
with respect to the subject matter hereof which shall survive the execution and delivery of this
Agreement and shall terminate in accordance with its terms and (b) is not intended to
confer upon any person other than the parties any rights or remedies hereunder, except (i) for the
rights of the holders of IPC Common Shares to receive the Amalgamation Consideration pursuant to
and subject to this Agreement if the Effective Time occurs, and (ii) as provided in
Section 5.8(c).
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8.6 Governing Law. This Agreement shall be governed in all respects, including as to
validity, interpretation and effect, by the Laws of Bermuda, without giving effect to its
principles or rules of conflict of laws.
8.7 Severability. Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of
such invalidity or unenforceability and, unless the effect of such invalidity or unenforceability
would prevent the parties from realizing the major portion of the economic benefits of the
Amalgamation that they currently anticipate obtaining therefrom, shall not render invalid or
unenforceable the remaining terms and provisions of this Agreement or affect the validity or
enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable.
8.8 Assignment. Neither this Agreement nor any of the rights, interests or
obligations of the parties hereunder shall be assigned by any of the parties (whether by operation
of Law or otherwise) without the prior written consent of the other parties, which may be granted
or withheld in the sole discretion of the other parties. Any attempt to make any such assignment
without such consent shall be null and void. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of and be enforceable by the parties and their
respective successors and permitted assigns.
8.9 Enforcement. The parties agree that money damages would be both incalculable and
an insufficient remedy and that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their specific terms on a
timely basis or were otherwise breached. It is accordingly agreed that, subject to the discretion
of the Chosen Court (as defined in Section 8.10), the parties shall be entitled to an injunction
or other equitable relief to prevent breaches of this Agreement and to enforce specifically the
terms and provisions of this Agreement in any court identified in Section 8.10, this being in
addition to any other remedy to which they are entitled at law or in equity.
8.10 Submission to Jurisdiction. Each party irrevocably and unconditionally
consents, agrees and submits to the exclusive jurisdiction of the Bermuda Supreme Court (and
appropriate appellate courts therefrom) (the “Chosen Courts”), for the purposes of any
litigation, action, suit or other proceeding arising out of or relating to this Agreement or any
transaction contemplated hereby. Each party agrees to commence any litigation, action, suit or
proceeding relating hereto only in the Bermuda Supreme Court, or if such litigation, action, suit
or other proceeding may not be brought in such court for reasons of subject matter jurisdiction,
in the other appellate courts therefrom or other courts of Bermuda. Each party irrevocably and
unconditionally waives any objection to the laying of venue of any litigation, action, suit or
proceeding arising out of this Agreement or the transactions contemplated hereby in the Chosen
Courts, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim
in any such court that any such action, suit or proceeding brought in any such court has been
brought in an inconvenient forum. Each party further irrevocably consents to and grants any such
court jurisdiction over the person of such parties and, to the extent legally effective, over the
subject matter of any such dispute and agrees that mailing of process or other papers in
connection with any such action or proceeding in the manner provided in Section 8.2 or in such
other manner as may be permitted by Law, shall be valid and sufficient service thereof. The
parties agree that a final judgment in any such suit, action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by
Law.
8.11 Amendment. This Agreement may be amended by the parties, by action taken or
authorized by their respective Boards of Directors, at any time before or after approval of the
matters presented in connection with the Amalgamation by the shareholders of Validus or of IPC,
but, after any
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such approval, no amendment shall be made which by Law requires further approval by such
shareholders without such further approval. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties by their duly authorized
representatives.
8.12 Extension; Waiver. At any time prior to the Effective Time, the parties may, to
the extent legally allowed, (i) extend the time for the performance of any of the obligations or
other acts of the other party, (ii) waive any inaccuracies in the representations and warranties
contained herein or in any document delivered pursuant hereto and (iii) waive compliance with any
of the agreements or conditions contained herein. Any agreement on the part of a party to any
such extension or waiver shall be valid only if set forth in a written instrument signed on behalf
of such party. The failure of a party to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of those rights. No single or partial exercise of any
right, remedy, power or privilege hereunder shall preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or privilege. Any waiver shall be effective
only in the specific instance and for the specific purpose for which given and shall not
constitute a waiver to any subsequent or other exercise of any right, remedy, power or privilege
hereunder.
8.13 Defined Terms.
(a) For purposes of this Agreement, each of the following terms shall have the meaning set
forth below.
“Acquisition Transaction” means with respect to any person, any amalgamation, merger,
reorganization, share exchange, consolidation, business combination, recapitalization, liquidation,
dissolution or similar transaction involving it or any of its subsidiaries or any purchase or sale
of 35% or more of the consolidated assets (including, without limitation, stock of its
subsidiaries) of it and its subsidiaries, taken as a whole, or any purchase or sale of, or tender
or exchange offer for, its voting securities that, if consummated, would result in any person (or
the shareholders of such person) beneficially owning securities representing 35% or more of its
total voting power or the voting power of any of its subsidiaries.
“Average Validus Share Price” means the volume weighted average price per Validus
Common Share on the NYSE (as reported by Bloomberg L.P. or, if not reported thereby, by another
authoritative source mutually agreed by the parties) for the five consecutive trading days
immediately preceding the second trading day prior to the Closing Date. For all purposes of this
Agreement, the Average Validus Share Price shall be calculated to the nearest one-hundredth of one
cent.
“Compensation and Benefit Plan” means any pension, retirement, profit-sharing,
deferred compensation, stock option, restricted stock unit, equity-based compensation, performance
units, employee stock ownership, severance pay, vacation, retention or other bonus or incentive
plan, any other employee program or agreement, any medical, vision, dental, or other health plan,
any life insurance plan, and any other employee benefit plan or fringe benefit plan, whether or not
tax-qualified or otherwise tax-preferred, maintained by, sponsored in whole or in part by, or
contributed to by IPC or Validus or their subsidiaries, as the case may be, for the benefit of
their employees, former employees, retirees, dependents, spouses, directors, independent
contractors, or other beneficiaries and under which such employees, former employees, retirees,
dependents, spouses, directors, independent contractors, or other beneficiaries are eligible to
participate and any employment, retention, change in control, severance, termination, consulting or
retirement agreement with their current or former employees.
“IM Agreement” means the Agreement and Plan of Amalgamation, dated as of March 1,
2009, between IPC, IPC Limited, a Bermuda exempted company and Max Capital Group Ltd., a Bermuda
exempted company, as amended on March 5, 2009.
-49-
“Intellectual Property” means (i) trademarks, service marks, Internet domain
names, logos, trade dress, trade names, corporate names and any and every other form of trade
identity or indicia of origin, and the goodwill associated therewith and symbolized thereby;
(ii) inventions, discoveries and patents, and the improvements thereto; (iii)
published and unpublished works of authorship and the copyrights therein and thereto (including
databases and other compilations of information, computer and electronic data processing programs
and software, in both source code and object code); (iv) trade secrets, confidential
business and technical information and any other confidential information (including ideas,
research and development, know-how, formulae, calculations, algorithms, models, designs, processes,
business methods, customer lists and supplier lists) (“Trade Secrets”); (v) all
rights in data and data bases; (vi) all other intellectual property or similar proprietary
rights; and (vii) all applications, registrations and renewals for the foregoing.
“IPC Benefit Plan” means only those Compensation and Benefit Plans maintained by,
sponsored in whole or in part by, or contributed to by IPC or its subsidiaries for the benefit of
their employees, former employees, retirees, dependents, spouses, directors, independent
contractors, or other beneficiaries and under which such employees, former employees, retirees,
dependents, spouses, directors, independent contractors, or other beneficiaries are eligible to
participate or with respect to which IPC or any of its subsidiaries has any liability.
“Material Adverse Effect” means, with respect to any party, any change, state of
facts, circumstance, event or effect that is materially adverse to (A) the financial
condition, properties, assets, liabilities, obligations (whether accrued, absolute, contingent or
otherwise), businesses or results of operations of such party and its subsidiaries, taken as a
whole, excluding any such change, state of facts, circumstance, event or effect to the extent
caused by or resulting from:
(i) the execution, delivery and announcement of this Agreement and the transactions
contemplated hereby,
(ii) changes in economic, market, business, regulatory or political conditions
generally in the United States or in Bermuda or any other jurisdiction in which such party
operates or in Bermudian, U.S. or global financial markets,
(iii) changes, circumstances or events generally affecting the property and casualty
insurance and reinsurance industry in the geographic areas in which such party operates,
(iv) changes, circumstances or events resulting in liabilities under property
catastrophe reinsurance, including any effects resulting from any earthquake, hurricane,
tornado, windstorm, terrorist act, act of war or other natural or man-made disaster,
(v) changes in any Law,
(vi) changes in generally accepted accounting principles or in statutory accounting
principles (or local equivalents in the applicable jurisdiction) prescribed by the
applicable insurance regulatory authority (“GAAP” and “Applicable SAP”,
respectively), including accounting and financial reporting pronouncements by the Bermuda
Monetary Authority, the Securities and Exchange Commission (the “SEC”), the National
Association of Insurance Commissioners and the Financial Accounting Standards Board,
(vii) any change or announcement of a potential change in its or any of its
subsidiaries’ credit or claims paying rating or A.M. Best rating or the ratings of any of
its or its subsidiaries’ businesses or securities (provided that this exception
shall not prevent or otherwise affect a
-50-
determination that any changes, state of facts, circumstances, events or effects
underlying a change described in this clause (vii) has resulted in, or contributed to, a
Material Adverse Effect),
(viii) a change in the trading prices or volume of such party’s capital stock
(provided that this exception shall not prevent or otherwise affect a determination
that any changes, state of facts, circumstances, events or effects underlying a change
described in this clause (viii) has resulted in, or contributed to, a Material Adverse
Effect),
(ix) the failure to meet any revenue, earnings or other projections, forecasts or
predictions for any period ending after the date of this Agreement (provided that
this exception shall not prevent or otherwise affect a determination that any state of
facts, circumstances, events or effects underlying a failure described in this clause (ix)
has resulted in, or contributed to, a Material Adverse Effect),
(x) the commencement, occurrence or continuation of any war or armed hostilities, or
(xi) any action or failure to act required to be taken by a party pursuant to the terms
of this Agreement,
except in the case of the foregoing clauses (ii), (iii), (v), (vi) and (x) to the extent those
changes, state of facts, circumstances, events, or effects have a materially disproportionate
effect on such party and its subsidiaries taken as a whole relative to other similarly situated
persons in the property and casualty insurance and reinsurance industry,
and/or (B) the ability of such party to perform its obligations under this Agreement or to
consummate the transactions contemplated hereby on a timely basis.
“Permitted Encumbrance” means (i) statutory liens securing payments not yet
due, (ii) such imperfections or irregularities of title, claims, liens, charges, security
interests or encumbrances as do not affect the use of the properties or assets subject thereto or
affected thereby or otherwise impair business operations at such properties, (iii)
restrictions on transfer imposed by Law, (iv) assets pledged or transferred to secure
reinsurance or retrocession obligations, (v) ordinary-course securities lending and
short-sale transactions, (vi) investment securities held in the name of a nominee,
custodian or other record owner, (vii) statutory deposits, or (viii) any failure to
hold good title, in each case, that would not be reasonably expected to have, individually or in
the aggregate, a Material Adverse Effect.
“Tax” means (i) all federal, state, local or foreign taxes, charges, fees,
imposts, levies or other assessments, including all income, gross receipts, capital, sales, use, ad
valorem, value added, transfer, franchise, profits, inventory, capital stock, license, withholding,
payroll, employment, social security, unemployment, excise, premium, severance, stamp, occupation,
property and estimated taxes, customs duties, fees, assessments and charges of any kind whatsoever,
(ii) all interest, penalties, fines, additions to tax or additional amounts imposed by any
Taxing Authority in connection with any item described in clause (i), and (iii) any
transferee liability in respect of any items described in clauses (i) or (ii)
payable by reason of contract, assumption, transferee liability, operation of Law, Treasury
Regulation Section 1.1502-6(a) (or any predecessor or successor thereof of any analogous or similar
provision under Law) or otherwise.
“Tax Asset” means any loss, net operating loss, net capital loss, investment tax
credit, foreign tax credit, charitable deduction, or any other credit or Tax attribute that could
be carried forward or carried back to reduce Taxes.
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“Tax Return” means any return, report or statement filed or required to be filed with
respect to any Tax (including any elections, declarations, schedules or attachments thereto, and
any amendment thereof) including any information return, claim for refund, amended return or
declaration of estimated Tax, and including, where permitted or required, combined, consolidated or
unitary returns for any group of entities that includes IPC, Validus or any subsidiaries thereof.
“Taxing Authority” means the Internal Revenue Service or any other Governmental Entity
responsible for the administration of any Tax.
“Validus Benefit Plan” means only those Compensation and Benefit Plans maintained by,
sponsored in whole or in part by, or contributed to by Validus or its subsidiaries for the benefit
of their employees, former employees, retirees, dependents, spouses, directors, independent
contractors, or other beneficiaries and under which such employees, former employees, retirees,
dependents, spouses, directors, independent contractors, or other beneficiaries are eligible to
participate or with respect to which Validus or any of its subsidiaries has any liability.
(b) Each of the following terms is defined in the provision listed opposite such term:
| Defined Term | Section | |
20% Differential Book Value Decline
|
5.16(e) | |
50% Book Value Decline
|
5.16(d) | |
Acquisition Proposal
|
5.5(a)(i) | |
Acquisition Transaction
|
8.13(a) | |
Administrator
|
3.12(h) | |
affiliate
|
8.3 | |
Agent
|
3.12(h) | |
Agreement
|
Introduction | |
Amalgamated Company
|
1.3 | |
| Recitals | ||
| 1.1 | ||
Amalgamation Application
|
1.1 | |
Amalgamation Consideration
|
2.1(a) | |
Amalgamation Sub
|
Introduction | |
Applicable SAP
|
8.13(a) (See “Material Adverse Effect”) | |
Average Validus Share Price
|
8.13(a) | |
Book Value Estimate
|
5.16(a) | |
business day
|
8.3 | |
Change in Validus Recommendation
|
5.4(a) | |
Change in IPC Recommendation
|
5.4(a) | |
Chosen Courts
|
8.10 | |
Closing
|
1.2 | |
Closing Date
|
1.2 | |
Code
|
Recitals | |
Companies Act
|
Recitals | |
Compensation and Benefit Plan
|
8.13(a) | |
control
|
8.3 | |
Disclosure Letter
|
ARTICLE III | |
Dissenting Shareholder
|
2.1(c) | |
Dissenting Shares
|
2.1(c) |
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| Defined Term | Section | |
Effective Time
|
1.1 | |
Employees
|
5.12(b) | |
ERISA
|
3.15(e) | |
Exchange Act
|
3.4(a) | |
Exchange Agent
|
2.2(a) | |
Exchange Fund
|
2.2(a) | |
Exchange Ratio
|
2.1(a) | |
Financing
|
4.2(a) | |
Form S-4
|
5.1(a) | |
GAAP
|
8.13(a) (See “Material Adverse Effect”) | |
Governmental Entity
|
3.3(c) | |
Xxxxxxxxx
|
3.19 | |
IM Agreement
|
8.13(a) | |
Indemnified Parties
|
5.8(a) | |
Insurance Entities
|
3.12(a) | |
Insurance Laws
|
3.5(a) | |
Intellectual Property
|
8.13(a) | |
Investment Assets
|
3.13(a) | |
Investment Policy
|
3.13(c) | |
IPC
|
Introduction | |
IPC Benefit Plan
|
8.13(a) | |
IPC Bye-Law Amendment
|
3.9(a) | |
IPC Certificate
|
2.1 | |
IPC Common Share
|
2.1 | |
IPC Disclosure Letter
|
ARTICLE III | |
IPC Non-Performance Awards
|
2.3(b) | |
IPC Other Awards
|
2.3(b) | |
IPC Performance Awards
|
2.3(b) | |
IPC Recommendation
|
3.9(a) | |
IPC Share Option
|
2.3(a) | |
IPC Share Plans
|
3.2(a) | |
IPC Share Register
|
2.1 | |
IPC Shareholders Meeting
|
5.1(c) | |
Joint Proxy Statement/Prospectus
|
5.1(a) | |
XX Xxxxxx
|
3.19 | |
knowledge
|
8.3 | |
Laws
|
3.5(a) | |
Legal Proceedings
|
3.6 | |
Listed Validus Common Shares
|
5.13 | |
Lloyd’s
|
3.5(a) | |
Lloyd’s Regulations
|
3.12(m) | |
Material Adverse Effect
|
8.13(a) | |
Material Contract
|
3.14(a) | |
Measurement Date
|
5.16(a) | |
multiemployer plan
|
3.15(e) | |
New Option
|
2.3(a) | |
Non-Requesting Party
|
5.16(a) | |
Non-Vested PSU
|
2.3(b) | |
Notice of Superior Proposal
|
5.5(d) | |
Notice Period
|
5.5(d) |
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| Defined Term | Section | |
NYSE
|
2.1(a) | |
party; parties
|
8.3 | |
Permits
|
3.5(a) | |
Permitted Encumbrance
|
8.13(a) | |
person
|
8.3 | |
Policies
|
3.12(g) | |
Registrar
|
1.1 | |
Reinsurance Agreements
|
3.12(e) | |
Representatives
|
5.2(b) | |
Requesting Party
|
5.16(a) | |
Required IPC Vote
|
3.10(b) | |
Required Shareholder Votes
|
3.10(b) | |
Required Validus Vote
|
3.10(a) | |
Requisite Regulatory Approvals
|
6.1(c) | |
SEC
|
8.13(a) (See “Material Adverse Effect”) | |
SEC Documents
|
3.4(a) | |
Securities Act
|
3.4(a) | |
Share Issuance
|
Recitals | |
Statutory Statements
|
3.12(b) | |
subsidiary
|
8.3 | |
Superior Proposal
|
5.5(f) | |
Tax
|
8.13(a) | |
Tax Asset
|
8.13(a) | |
Tax Return
|
8.13(a) | |
Taxing Authority
|
8.13(a) | |
Termination Fee
|
7.2(b) | |
Trade Secrets
|
8.13(a) (See “Intellectual Property”) | |
Underwriting Model
|
3.17(c) | |
Validus
|
Introduction | |
Validus Benefit Plan
|
8.13(a) | |
Validus Common Share
|
2.1(a) | |
Validus Disclosure Letter
|
ARTICLE III | |
Validus Recommendation
|
3.9(b) | |
Validus Share Plans
|
3.2(a) | |
Validus Shareholders Meeting
|
5.1(b) | |
Voting Debt
|
3.2(d) |
[Remainder of this page intentionally left blank]
-54-
| IPC HOLDINGS, LTD. |
||||
| By: | ||||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Chief Executive Officer | |||
-55-
| VALIDUS HOLDINGS, LTD. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Chairman and Chief Executive
Officer |
|||
VALIDUS LTD |
||||
| By: | /s/ Xxxxxx X. (Xxxx) Xxxxxxxxx | |||
| Name: | Xxxxxx X. (Xxxx) Xxxxxxxxx | |||
| Title: | Chief Financial Officer | |||
-56-
THIS AMALGAMATION AGREEMENT is made as of [l], 2009 BETWEEN:
(1) Validus Ltd., a company incorporated under the laws of Bermuda having its
registered office at 19 Xxx-Xx-Xxxxx Xxxx, Xxxxxxxx, Xxxxxxx (hereinafter called “AMAL 1”);
and
(2) IPC Holdings, Ltd., a company also incorporated under the laws of Bermuda having
its registered office at 29 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxx (hereinafter called “AMAL 2”).
(A) AMAL 1 was incorporated under the laws of Bermuda pursuant to the Companies Acx
0000, as evidenced by a memorandum of association dated [l], 2009 and is a company in
good standing with the laws of Bermuda;
(B) AMAL 2 was incorporated under the laws of Bermuda pursuant to the Companies Acx
0000, as evidenced by a memorandum of association dated May 17, 1993 and is a company in
good standing under the laws of Bermuda;
(C) AMAL 1 and AMAL 2, acting under the authority contained in Section 104 of the
Companies Acx 0000, have each, by a special general meeting of their Members held on
[l], 200[l], agreed to amalgamate upon the terms and conditions hereinafter set
out;
(D) AMAL 1 and AMAL 2 have each made full disclosure to the other of all their
respective assets and liabilities;
(E) AMAL 1 has an authorised and issued share capital of [l] consisting of
[l] ordinary shares having a par value of [l], all of which are fully paid;
(F) AMAL 2 has an authorised and issued share capital of [l] consisting of
[l] ordinary shares having a par value of [l], all of which are fully paid;
(G) It is desired by the parties that the said amalgamation shall be effected.
1. In this Agreement:
“Amalgamating Companies” means AMAL 1 and AMAL 2, the parties hereto;
“Amalgamated Company” means the Company continuing from the amalgamation of the
Amalgamating Companies;
“Amalgamation Agreement” or “Agreement” means this Amalgamation Agreement;
-2-
“the Act” means the Companies Acx 0000, as amended up to and including the date of
this Agreement; and
“the Effective Date” means [l], 2009, which date is deemed to be the Effective
Date of Amalgamation.
2. Each of the Amalgamating Companies does hereby agree to amalgamate, as of the close
of business on the Effective Date, under the provisions of the Act and to continue as one
company under the terms and conditions hereinafter set out.
3. The name of the Amalgamated Company shall be “Validus Ltd.” (that is, the present
name of AMAL 1) and the registered office of the Amalgamated Company shall be 19
Xxx-Xx-Xxxxx Xxxx, Xxxxxxxx, XX 00, Xxxxxxx.
4. The Amalgamated Company shall be governed by the Memorandum of Association of AMAL
1.
5. The Bye-Laws of the Amalgamated Company shall, to the extent that they are not
inconsistent with this Agreement, be the Bye-Laws of AMAL 1, until repealed, amended or
altered.
6. The Board of Directors of the Amalgamated Company (the “Board of Directors”) shall
consist of not more than [l] directors, and the first directors of the Amalgamated
Company shall be the persons whose names and addresses are set out in Schedule 1, attached
hereto, who shall hold office until the first annual meeting of the Amalgamated Company or
until their successors are elected or appointed.
7. The management and supervision of the business and affairs of the Amalgamated
Company shall be under the control of the Board of Directors from time to time subject to
the provisions of the Act and the Bye-Laws of the Amalgamated Company.
8. The Amalgamated Company shall have a minimum share capital of [l] and an
authorised share capital of [l] divided into [l] shares having a par value of
[l] each, having all the rights, conditions, restrictions and limitations set out in
the Bye-Laws of the Amalgamated Company. Such shares shall be allotted or issued to the
Shareholders of the Amalgamated Company on the basis set out in the attached Schedule 2.
9. After the issue of the Certificate of Amalgamation giving effect to the Amalgamation
contemplated by this Agreement, the Shareholders of the Amalgamating Companies shall, at the
request of the Amalgamated Company, surrender the certificates evidencing the shares held by
them in the Amalgamating Companies and, in return, shall be entitled to receive certificates
representing shares of the Amalgamated Company on the basis set out in the attached Schedule
B.
10. AMAL 1 shall contribute to the Amalgamated Company all its property and assets,
subject to all its liabilities, as more particularly set out in the balance sheet of AMAL 1
as of [l], 200[l], subject to changes occurring since that date in the ordinary
course of business.
-3-
11. AMAL 2 shall contribute to the Amalgamated Company all its property and assets,
subject to all its liabilities, as more particularly set out in the balance sheet of AMAL 2
as of [l], 200[l], subject to changes occurring since that date in the ordinary
course of business.
12. The Amalgamated Company shall possess all the property, assets, rights and
privileges and shall be subject to all the contracts, liabilities, debts and obligations of
the Amalgamating Companies.
13. All the rights of creditors against the property, assets, rights and privileges of
the Amalgamating Companies and all liens upon their property, rights and assets shall be
unimpaired by such amalgamation and all debts, contracts, liabilities and duties of the
Amalgamating Companies shall henceforth attach to and may be enforced against the
Amalgamated Company.
14. No action or proceeding by or against the Amalgamating Companies shall xxxxx or be
affected by such amalgamation but, for the purposes of such action or proceeding, the name
of the Amalgamated Company shall be substituted in such action or proceeding in place of
AMAL 1 and AMAL 2.
15. AMAL 1 and AMAL 2 agree to execute and do all such acts deeds and things as shall
or may be necessary to give effect to their respective undertakings pursuant to this
Agreement.
-4-
Schedule 1 - Board of Directors of Amalgamated Company
NAME
|
ADDRESS |
-5-
Schedule 2
1. Total Common Shares to be issued by Amalgamated Company
[[l] (insert number of shares in words) Common Shares of the par value $[l]
([l] dollar) each.]
2. Share Issuance Methodology
[Each Shareholder of AMAL 1 will receive one share of Common Stock of the Amalgamated Company
for each share of Common Stock of AMAL 1 which he holds. The Shareholders of AMAL 2 will receive
no shares in the Amalgamated Company and each of their shares in AMAL 2 (irrespective of class)
will be cancelled.]
3. Valuation of Shares in the Amalgamated Company
[Each share of the Amalgamated Company shall be entitled to a pro rata share of the assets of
the Amalgamated Company net of the accumulated liabilities of the Amalgamated Company, as
determined from time to time.]
IN WITNESS WHEREOF this Agreement has been duly executed by the parties hereto under their
respective seals as witnessed by the signatures of their proper officers.
The Common Seal of AMAL 1 )
is hereunto affixed in the presence )
of: )
The Common Seal of AMAL 2 )
is hereunto affixed in the presence )
of: )
-6-
Exhibit E
IPC Bye-Law Amendment
The following shall be inserted as bye-law 100 under the caption “MEMBER VOTE TO APPROVE
AN AMALGAMATION”:
“90. Amalgamation
A resolution proposed for consideration at a general meeting to approve the amalgamation of the
Company with any other company shall require the affirmative vote of a majority of the votes cast
by Members present or represented by proxy and voting at such general meeting and the quorum for
such general meeting shall be as set out in Bye-Law 39.”
Exhibit F
| 1. | IPC shall be permitted to pay to Max Capital Group Ltd. the termination fee required to be paid by IPC to Max Capital Group Ltd. under the IM Agreement, using (i) cash on hand or (ii) the proceeds of (x) indebtedness incurred under its existing credit facility or (y) other unsecured indebtedness reasonably acceptable to Validus, or (iii) the proceeds from the sale of Investment Assets reasonably acceptable to Validus. |