Exhibit 2.1
FIRST AMENDMENT TO RIGHTS AGREEMENT
FIRST AMENDMENT TO RIGHTS AGREEMENT (this "Amendment"), dated
March 16, 1998, by and between Mid Ocean Limited, a limited liability company
incorporated under the Cayman Islands Companies Law (the "Company"), and The
Bank of New York, a New York banking corporation (the "Rights Agent").
RECITALS
WHEREAS, the Company and the Rights Agent are parties to that
certain Rights Agreement dated September 12, 1996 (the "Rights Agreement); and
WHEREAS, the Company desires to amend certain provisions of the
Rights Agreement;
WHEREAS, Section 27 of the Rights Agreement provides that under
certain circumstances the Company may supplement or amend the Rights Agreement
without the approval of any holders of Rights Certificates;
WHEREAS, the Company has determined that it may amend the Rights
Agreement as set forth in this Amendment; and
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein and in the Rights Agreement, the parties hereto
agree as follows:
ARTICLE 1
Amendment of Rights Agreement
Section 1.01. Additional Definitions.
Section 1 of the Rights Agreement is hereby amended by adding
the following definitions in the appropriate locations:
"Exel" means Exel Limited, a limited liability company
incorporated under the Cayman Islands Companies Law.
"JPMCC" means X.X. Xxxxxx Capital Corporation, Inc.
"Schemes" shall have the meaning set forth in the Schemes
Agreement.
"Schemes Agreement" shall mean the Agreement and Schemes of
Arrangement, dated March 16, 1998, among the Company, Exel, and one or more
newly formed entities (each, a "Newco") and the other parties thereto, as the
same may be amended, supplemented or otherwise modified from time to time.
"Support Agreement" means the agreement dated as of March 15,
1998, between Exel and JPMCC, and any other agreement with a shareholder of
Exel or the Company in support of the Schemes, in each case, as amended or
supplemented from time to time.
Section 1.02. Amendment to Definition of Acquiring Person.
Section 1 of the Rights Agreement is hereby amended to add the following
sentence to the end of the definition of "Acquiring Person" in Section 1:
Notwithstanding anything to the contrary contained in this
Agreement, any Newco, Exel, JPMCC and their Affiliates and
Associates shall not, individually or collectively, be
deemed to be an Acquiring Person solely by virtue of (i) the
execution of the Schemes Agreement or any Support Agreement,
as applicable, (ii) the consummation of the Schemes or (iii)
the consummation of the other transactions contemplated in
the Schemes Agreement.
Section 1.03. Amendment to Definition of Distribution Date.
Section 3(a) of the Rights Agreement is hereby amended to add the following
sentence at the end thereof:
Notwithstanding anything in this Agreement to the contrary,
a Distribution Date shall not be deemed to have occurred
solely by virtue of (i) the execution of the Schemes
Agreement or any Support Agreement, (ii) the consummation of
the Schemes or (iii) the consummation of the other
transactions contemplated in the Schemes Agreement.
Section 1.04. Amendment of Expiration Date. Section 7(a) of the
Rights Agreement is hereby amended and restated to read in its entirety as
follows:
(a) Subject to Section 7(e) hereof, the registered holder of
any Right Certificate may exercise the Rights evidenced
thereby (except as otherwise provided herein including,
without limitation, the restrictions on exercisability set
forth in Sections 9(c), 11(a)(iii), 23(a) and 24(b) hereof)
in whole or in part at any time after the Distribution Date
upon surrender of the Right Certificate, with the form of
election to purchase on the reverse side thereof duly
executed, to the Rights Agent at the designated office of the
Rights Agent, together with payment of the aggregate Purchase
Price for the total number of Class A Ordinary Shares (or
other securities, cash or other assets, as the case may be)
as to which the Rights are then exercisable, at or prior to
the earliest of (i) the close of business on October 1, 2006
(the "Final Expiration Date"), (ii) the time at which the
Rights are redeemed as provided in Section 23 hereof, (iii)
the time at which all exercisable Rights are exchanged as
provided in Section 24 hereof, and (iv) the consummation of
the Schemes (such earliest date being herein referred to as
the "Expiration Date").
Section 1.05. Amendment of Section 30. Section 30 of the Rights
Agreement is hereby amended to add the following sentence at the end thereof:
Nothing in this Agreement shall be construed to give any
holder of Rights or any other Person any legal or equitable
rights, remedies or claims under this Agreement by virtue of
the execution of the Schemes Agreement or any Support
Agreement or by virtue of any of the transactions
contemplated by the Schemes Agreement or any Support
Agreement.
ARTICLE 2
Miscellaneous
Section 2.01. Defined Terms. All capitalized terms used and not
defined herein shall have the meanings ascribed to such terms in the Rights
Agreement as hereby amended.
Section 2.02. Reference to and Effect on the Rights Agreement.
(a) On and after the date hereof, each reference in the Rights Agreement to
"this Agreement", "hereunder", "hereof", "herein" or words of like import
referring to the Rights Agreement shall mean and be a reference to the Rights
Agreement as hereby amended.
(b) This Amendment shall be deemed effective as of the date
first written above. Except as specifically amended by this Amendment, the
Rights Agreement shall remain in full force and effect and is hereby ratified
and confirmed.
Section 2.03. Successors. All of the covenants and provisions
of this Amendment by or for the benefit of the Company or the Rights Agent
shall bind and inure to the benefit of their respective successors and
assigns hereunder.
Section 2.04. Governing Law. This Amendment shall be deemed
to be a contract made under the laws of the Cayman Islands and for all purposes
shall be governed by and construed in accordance with such laws, except that
the rights, duties and obligations of the Rights Agent shall be governed by
and construed in accordance with the laws of the State of New York, U.S.A.
Section 2.05. Counterparts. This Amendment may be executed in
any number of counterparts and each of such counterparts shall for all
purposes be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument.
Section 2.06. Descriptive Headings. Descriptive headings of the
several Sections of this Amendment are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions
hereof.
Section 2.07. Severability. If the term, provision, covenant or
restriction of this Amendment is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Amendment shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated.
Section 2.08. Entire Agreement. This Amendment, together with
the unaltered portions of the Rights Agreement, embodies the entire agreement
and understanding of the parties hereto and supersedes all prior agreements
and understandings relating to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first written above.
MID OCEAN LIMITED
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
THE BANK OF NEW YORK
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
Title: Vice President
MID OCEAN LIMITED
OFFICER'S CERTIFICATE
I, Xxxxxxx X. Xxxx, Senior Vice President of Mid Ocean Limited,
a limited liability company incorporated under the Cayman Islands Companies
Law (the "Company"), do hereby certify as follows:
The First Amendment to Rights Agreement dated March 16, 1998 between the
Company and The Bank of New York, a New York banking corporation (the "Rights
Agent"), the form of which is attached as Exhibit A hereto, is in compliance
with the terms of Section 27 of the Rights Agreement dated as of September 12,
1996 between the Company and the Rights Agent.
IN WITNESS WHEREOF, I have signed this certificate.
Dated: March 16, 1998
/s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
Senior Vice President
